EXHIBIT 1.1
5,100,000 Shares of Common Stock
X.X. XXXX TRANSPORT SERVICES, INC.
UNDERWRITING AGREEMENT
_____________, 2002
BEAR, XXXXXXX & CO. INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES INC.
as Representatives of the
several Underwriters named in
Schedule I attached hereto
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies/Gentlemen:
X.X. Xxxx Transport Services, Inc., a corporation organized and
existing under the laws of Arkansas (the "Company"), proposes, subject to the
terms and conditions stated herein, to issue and sell to the several
underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
2,000,000 shares (the "Company Shares") and the entity other than the Company
listed on Schedule II hereto (the "Selling Stockholder") propose, subject to the
terms and conditions stated herein, to issue and sell to the Underwriters an
aggregate of 3,100,000 shares (the "Selling Stockholder Shares" and, together
with the Company Shares, the "Firm Shares") of its common stock, par value $.01
per share (the "Common Stock"). For the sole purpose of covering over-allotments
in connection with the sale of the Firm Shares, at the option of the
Underwriters, the Company proposes to sell to the Underwriters up to an
additional 765,000 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. The Company, together
with X.X. Xxxx Transport, Inc., a Georgia corporation, L.A., Inc., an Arkansas
corporation, X.X. Xxxx Corp., a Delaware corporation, and FIS, Inc., a Nevada
corporation (collectively, the "Significant Subsidiaries"), jointly and
severally, represent and warrant to, and agree with, each of the Underwriters as
of the date hereof, the Closing Date and any Additional Closing Date that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-_____), and amendments thereto, and related preliminary prospectuses for the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of the Shares which registration statement, as so amended (including
post-effective amendments, if any), has been declared effective by the
Commission and copies of which have heretofore been delivered to the
Underwriters. The registration statement, as amended at the time it became
effective, including the exhibits and information (if any) deemed to be part of
the registration statement at the time of effectiveness pursuant to Rule 430A or
434(d) under the Securities Act, is hereinafter referred to as the "Registration
Statement." If the Company has filed or is required pursuant to the terms hereof
to file a registration statement pursuant to Rule 462(b) under the Securities
Act registering additional shares of Common Stock (a "Rule 462(b) Registration
Statement"), then, unless otherwise specified, any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462(b)
Registration Statement. Other than a Rule 462(b) Registration Statement, which
became effective upon filing, no other document with respect to the Registration
Statement has heretofore been filed with the Commission. No stop order
suspending the effectiveness of either the Registration Statement or the Rule
462(b) Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission. The Company, if
required by the Securities Act and rules and regulations of the Commission
thereunder (together, the "Rules and Regulations"), proposes to file the
Prospectus with the Commission pursuant to Rule 424(b) of the Rules and
Regulations. The Prospectus, in the form in which it is to be filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations, or, if the
Prospectus is not to be filed with the Commission pursuant to Rule 424(b), the
Prospectus in the form included as part of the Registration Statement at the
time the Registration Statement became effective, is hereinafter referred to as
the "Prospectus," except that if any revised prospectus or prospectus supplement
shall be provided to the Underwriters by the Company for use in connection with
the offering and sale of the Shares (the "Offering") which differs from the
Prospectus (whether or not such revised prospectus or prospectus supplement is
required to be filed by the Company pursuant to Rule 424(b) of the Rules and
Regulations), the term "Prospectus" shall refer to such revised prospectus or
prospectus supplement, as the case may be, from and after the time it is first
provided to the Underwriters for such use. Any preliminary prospectus or
prospectus subject to completion included in the Registration Statement or filed
with the Commission pursuant to Rule 424 under the Securities Act is hereafter
called a "Preliminary Prospectus." 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
(i) 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 (ii) any such document so filed. All references in this Agreement
to the Registration Statement, the Rule 462(b) Registration Statement, a
Preliminary Prospectus and the Prospectus, or any amendments or supplements to
any of the foregoing shall be deemed to include any copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
System ("XXXXX").
(b) 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 Rules
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and Regulations, when any supplement to or amendment of the Prospectus is filed
with the Commission, when any document filed under the Exchange Act was or is
filed and at the Closing Date and the Additional Closing Date, if any, (as
hereinafter respectively defined), the Registration Statement and the Prospectus
and any amendments thereof and supplements thereto complied and will comply in
all material respects with the applicable provisions of the Securities Act and
the Rules and Regulations and the Exchange Act and the respective rules and
regulations thereunder and did not and will not contain an untrue statement of a
material fact and did not and will not omit to state any material fact required
to be stated therein or necessary in order to make the statements therein (i) in
the case of the Registration Statement, not misleading and (ii) in the case of
the Prospectus or any related Preliminary Prospectus in 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 Rules and 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 Securities Act and the Rules and 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 light of the circumstances under which they were made, not
misleading. No representation and warranty is made in this subsection (b),
however, with respect to any information contained in or omitted from 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 specifically for use therein ("Underwriters'
Information"). The parties acknowledge and agree that the Underwriters'
Information consists solely of the material included in the [fifth] paragraph
(excluding tables) under the caption "Underwriting" in the Prospectus.
(c) KPMG LLP, who have certified the financial statements and
supporting schedules included or incorporated in the Registration Statement are
independent public accountants as required by the Securities Act and the Rules
and Regulations.
(d) 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, the Company has not paid any
dividends on its capital stock and there has been no material adverse change or
any development involving a prospective material adverse change on (i) the
business, affairs, properties, condition (financial or otherwise), results of
operations, stockholders' equity or prospects of the Company and each subsidiary
of the Company other than Comercializadora Internacional de Carga S.A. de C.V.
and Servicios de Logistica de Mexico, S.A. de C.V. listed on Exhibit 21 on the
Form 10-K of the Company for the fiscal year ended December 31, 2001 (the
"Subsidiaries"), individually or taken as a whole; (ii) the long-term debt of
the Company and its Subsidiaries; (iii) the capital stock of the Company; (iv)
the Offering, or anything giving rise to any liability or obligation on the part
of the Underwriters; (v) consummation of the transactions contemplated by this
Agreement and the Prospectus; or (vi) the validity or enforceability of the
Company's obligations hereunder or under the Prospectus (any of the events
described in (i) through (vi), a "Material Adverse Change" or "Material Adverse
Effect"), whether or not arising from transactions in the ordinary
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course of business. Since the date of the latest balance sheet presented in the
Registration Statement and the Prospectus, neither the Company nor any of the
Subsidiaries has incurred or undertaken any liabilities or obligations, direct
or contingent, or entered into any transactions which are material to the
Company and the Subsidiaries taken as a whole, except for liabilities or
obligations which are reflected in the Registration Statement and the
Prospectus. Since the date of its formation, Xxxx Mexicana, S.A. de C.V has had
no assets and has conducted no business.
(e) 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. The Company has all necessary
corporate power and authority to execute, deliver and perform this Agreement and
to issue and deliver the Company Shares.
(f) The execution, delivery, and performance of this Agreement and
the consummation of the transactions contemplated hereby do not and will not (i)
conflict with, require consent under 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 Subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement, instrument,
franchise, license or permit to which the Company or any of the Subsidiaries is
a party or by which the Company or any of the Subsidiaries or their respective
properties or assets may be bound or (ii) violate or conflict with any provision
of the certificate or articles of incorporation, by-laws, certificate of
formation, limited liability company agreement, partnership agreement or other
organizational documents of the Company or any of the Subsidiaries or any
judgment, decree, order, statute, law, rule or regulation of any court or any
public, governmental or regulatory agency or body having jurisdiction over the
Company or any of the Subsidiaries or any of their respective properties,
operations 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, domestic or foreign, having
jurisdiction over the Company or any of the Subsidiaries or any of their
respective properties, operations or assets, or any third party, is required for
the execution, delivery and performance of this Agreement or the consummation of
the transactions contemplated hereby or by the Registration Statement and by the
Prospectus, including the issuance, sale and delivery of the Shares to be
issued, sold and delivered by the Company hereunder, except the registration
under the Securities 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 or the
by-laws and rules of the National Association of Securities Dealers, Inc. (the
"NASD") in connection with the purchase and distribution of the Shares by the
Underwriters, each of which has been obtained.
(g) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus in the column entitled "Actual" under
the caption "Capitalization" and, after giving effect to the Offering and the
other events (if any) specified under the caption "Capitalization", will be as
set forth in the column entitled "As Adjusted" thereunder. All of the issued
shares of capital stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and were not issued in violation of or
subject to any preemptive or similar rights that entitle or will entitle any
person to acquire any
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Shares from the Company upon the issuance or sale thereof, except for such
rights as may have been fully satisfied or waived prior to the effectiveness of
the Registration Statement. The Shares to be delivered on the Closing Date and
the Additional Closing Date, if any, (as hereinafter respectively defined) have
been duly and validly authorized and, when delivered in accordance with this
Agreement, will be duly and validly issued, fully paid and non-assessable and
will not have been issued in violation of or subject to any preemptive or
similar rights that entitle or will entitle any person to acquire any Common
Stock from the Company upon issuance or sale thereof in the Offering. The Common
Stock, the Firm Shares and the Additional Shares conform to the descriptions
thereof contained in the Registration Statement and the Prospectus. Except as
disclosed in or specifically contemplated by the Prospectus, the Company has no
outstanding options to purchase, or any preemptive rights or other rights to
subscribe for or to purchase, any shares of its capital stock or obligations
convertible into, or any contracts or commitments to issue or sell, shares of
its capital stock or any such options, rights convertible securities or
obligations.
(h) The Subsidiaries are the only subsidiaries (as defined in Rule
405 of the Securities Act) of the Company. Each of the Company and the
Subsidiaries has been duly organized and validly exists as a corporation,
partnership or limited liability company in good standing under the laws of its
jurisdiction of organization. All of the issued shares of capital stock of the
Subsidiaries has been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly by the Company, free and clear of all
liens, charges, encumbrances, equities, or claims. Except for the Subsidiaries,
the Company owns no capital stock or other beneficial interest, directly or
indirectly, in any corporation, partnership, joint venture or other business
entity. Each of the Company and the Subsidiaries is duly qualified to do
business and is in good standing as a foreign corporation, partnership or
limited liability company 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, except for those failures to
be so qualified or in good standing which will not in the aggregate have a
Material Adverse Effect. Each of the Company and the Subsidiaries has all
requisite power and authority, and all necessary consents, approvals,
authorizations, orders, registrations, qualifications, licenses and permits
(collectively, the "Consents") of and from all public, regulatory or
governmental agencies and bodies and third parties, to own, lease and operate
its properties and conduct its business as it is now being conducted and as
described in the Registration Statement and the Prospectus. No Consent contains
a materially burdensome restriction not adequately disclosed in the Registration
Statement and the Prospectus.
(i) Except as described in the Prospectus, there is no legal or
governmental proceeding or other litigation to which the Company or any of the
Subsidiaries is a party or of which any property of the Company or any of the
Subsidiaries is the subject which, singularly or in the aggregate, if determined
adversely to the Company or any of the Subsidiaries, is reasonably likely to
have a Material Adverse Effect and, to the best of the Company's knowledge, no
such proceeding or litigation is threatened or contemplated by any governmental
authority or other third party; and the defense of all such proceedings and
litigation against or involving the Company will not, singularly or in the
aggregate, have a Material Adverse Effect.
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(j) Neither the Company nor any of its affiliates has taken, nor
will any of them 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.
(k) The financial statements, including the notes thereto, and
supporting schedules included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates indicated and the
condition and results of 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 throughout the periods involved and the supporting
schedules included in the Registration Statement present fairly the information
required to be stated therein. The other financial and statistical information
and data included in the Registration Statement and the Prospectus present
fairly the information included therein and have been prepared on a basis
consistent with that of the financial statements included or incorporated by
reference in the Registration Statement and the Prospectus and the books and
records of the respective entities presented therein.
(l) The pro forma and as adjusted financial information included in
the Prospectus has been properly compiled, and prepared in accordance with the
applicable requirements of the Securities Act and the Rules and Regulations and
include all adjustments necessary to present fairly in accordance with generally
accepted accounting principles the pro forma financial position of the
respective entity or entities presented therein at the respective dates
indicated and the results of their operations for the respective periods
specified. There are no historical or pro forma financial statements which are
required to be included in the Registration Statement and Prospectus in
accordance with Regulation S-X which have not been included as so required
(m) The assumptions used in preparing the pro forma and as adjusted
financial information included in each of the Registration Statement and the
Prospectus provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein, the
related pro forma and as adjusted adjustments give appropriate effect to those
assumptions, and the pro forma and as adjusted columns therein reflect the
proper application of those adjustments to the corresponding historical
financial statement amounts.
(n) 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.
(o) The Company is not and, upon consummation of the transactions
contemplated hereby and after giving effect to the application of net proceeds
of the Offering as described in the Prospectus, will not be, subject to
registration as an "investment company" under the Investment Company Act of
1940, as amended.
(p) The Company and the Subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens, encumbrances
and defects except such as are
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described in the Registration Statement and the Prospectus or such as do not
materially affect the value of such property by the Company and the
Subsidiaries; and any real property and buildings held under lease or sublease
by the Company and the Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and the Subsidiaries. Neither the Company nor any of the Subsidiaries
has received any notice of any claim adverse to their ownership of any real or
personal property or of any claim against the continued possession of any real
property, whether owned or held under lease or sublease by the Company or any of
the Subsidiaries.
(q) The Company and each of the Subsidiaries have accurately
prepared and timely filed all federal, state and other tax returns that are
required to be filed by them and have paid or caused to be paid all taxes,
assessments (including without limitation any interest or penalties),
governmental or other similar charges, including without limitation, all sales
and use taxes and all taxes which the Company and each of the Subsidiaries is
obligated to withhold from amounts owing to employees, creditors and third
parties, with respect to the periods covered by such tax returns (whether or not
such amounts are shown as due on any tax return). No deficiency assessment with
respect to a proposed adjustment of the Company's or any of the Subsidiaries'
Federal, state, or other taxes is pending or, to the best of the Company's
knowledge, threatened. There is no tax lien, whether imposed by any federal,
state, or other taxing authority, outstanding against the assets, properties or
business of the Company or any of the Subsidiaries.
(r) The Common Stock is registered pursuant to Section 12(g) of the
Exchange Act, the outstanding shares of Common Stock (other than the Shares) are
listed for quotation on The NASDAQ Stock Market's National Market (the "NASDAQ
National Market"), the Shares have been approved for quotation on the NASDAQ
National Market upon issuance or sale (as applicable), and the Company has taken
no action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or de-listing the Common
Stock from the NASDAQ National Market, nor has the Company received any
notification that the SEC or the NASDAQ National Market is contemplating
terminating such registration or listing.
(s) There are no contracts or other documents (including, without
limitation, any voting agreement), which are required to be described in the
Prospectus or filed as exhibits to the Registration Statement or the Prospectus
by the Securities Act or by the Rules and Regulations and which have not been so
described or filed.
(t) The Company and its Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization, and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
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(u) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(v) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the Exchange Act and the rules and regulations of the Commission
under the Exchange Act, and, when read together with the other information in
the Prospectus, at the time the Registration Statement and any amendments
thereto become effective and at the Closing Date, 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.
(w) Neither the Company nor any of its Subsidiaries (i) is in
violation of its certificate or articles of incorporation, by-laws, certificate
of formation, limited liability company agreement, partnership agreement or
other organizational documents, (ii) is in default (and no event has occurred
which, with notice or lapse of time or both, would constitute such a default)
under, or has taken any action or permitted any circumstance which would result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
property or assets is subject except for liens disclosed in the Registration
Statement and the Prospectus or (iii) is in violation in any respect of any
statute or any judgment, decree, order, rule or regulation of any court or
governmental or regulatory agency or body having jurisdiction over the Company
or any of its Subsidiaries or any of their properties or assets, except as to
clauses (ii) and (iii) for violations or defaults that would not, singularly or
in the aggregate, have a Material Adverse Effect.
(x) The Company and each of the Subsidiaries owns or possesses
adequate right to use all patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service xxxx registrations,
copyrights, licenses, formulae, customer lists, and know-how and other
intellectual property (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures)
("Intellectual Property") necessary for the conduct of their respective
businesses as being conducted and as described in the Registration Statement and
Prospectus and have no reason to believe that the conduct of their respective
businesses will conflict with, and have not received any notice of any claim of
conflict with, any such right of others. To the best of the Company's knowledge,
all material technical information developed by and belonging to the Company
which has not been patented has been kept confidential. Neither the Company nor
any of its Subsidiaries has granted or assigned to any other person or entity
any right to manufacture, have manufactured, assemble or sell the current
products and services of the Company or those products and services described in
the Registration Statement and Prospectus. There is no infringement by third
parties of any such Intellectual Property; there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by others
challenging the Company's or any Subsidiary's rights in or to any such
Intellectual Property, and the Company is unaware of any facts which would form
a reasonable basis for any such claim; and there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by others that
the Company infringes or
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otherwise violates any patent, trademark, copyright, trade secret or other
proprietary rights of others, and the Company is unaware of any other fact which
would form a reasonable basis for any such claim.
(y) No labor disturbance by the employees of the Company or any of
the Subsidiaries exists or, to the best of the Company's knowledge, is imminent
and the Company is not aware of any existing or imminent labor disturbances by
the employees of any of its or any Subsidiaries principal suppliers,
manufacturers, customers or contractors, which, in any case, singularly or in
the aggregate, would have a Material Adverse Effect.
(z) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section 4975
of the Internal Revenue Code of 1986, as amended from time to time (the
"Code")), or "accumulated funding deficiency" (as defined in Section 302 of
ERISA) or any of the events set forth in Section 4043(b) of ERISA (other than
events with respect to which the 30-day notice requirement under Section 4043 of
ERISA has been waived) has occurred with respect to any employee benefit plan
which, singularly or in the aggregate, could have a Material Adverse Effect;
each employee benefit plan with respect to which the Company could have any
liability has been operated in all material respects in compliance with
applicable law, including ERISA and the Code; the Company has not incurred and
no facts exist under which the Company reasonably could be expected to incur
liability under Title IV of ERISA with respect to the termination of, or
withdrawal from any "pension plan;" and each plan for which the Company would
have any liability that is intended to be qualified under Section 401(a) of the
Code is so qualified and nothing has occurred, whether by action or by failure
to act, which could cause the loss of such qualification.
(aa) There has been no disposal, discharge, emission, or other
release of any Materials of Environmental Concern (as defined below) by, due to,
or caused by the Company or its Subsidiaries (or, to the Company's knowledge,
any other entity for whose acts or omissions the Company or its Subsidiaries is
or may be liable) upon any other property now or previously owned or leased by
the Company or any of its Subsidiaries, or upon any other property, which would,
singularly or in the aggregate, result in a Material Adverse Effect. There has
been no disposal discharge, emission or other release of any kind onto such
property or into the environment surrounding such property of any Materials of
Environmental Concern with respect to which the Company or any of the
Subsidiaries has knowledge. Neither the Company or it Subsidiaries nor any
entity on their behalf has generated, transported, disposed of, or arranged for
the disposal of Materials of Environmental Concern at any location not owned or
operated by the Company or any of its Subsidiaries where any such generation,
transportation, or disposal would, singularly or in the aggregate, have a
Material Adverse Effect. The Company and its Subsidiaries are in compliance with
all Environmental Laws except where any non-compliance would not, singularly or
in the aggregate, have a Material Adverse Effect. The Company has not agreed to
assume, undertake or provide indemnification for any liability of any other
person under any Environmental Law, including any obligation for cleanup or
remedial action, except as would not, singularly or in the aggregate, have a
Material Adverse Effect. No material capital expenditures are required now or,
to the Company's knowledge, will be required within five years after the date
hereof in order to ensure compliance with all Environmental Laws by the Company
and its Subsidiaries. For purposes of this Agreement, "Environmental
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Laws" means all United States federal, state, local and non-United States laws,
regulations, codes and ordinances, relating to pollution or protection of human
health and the environment (including ambient air, surface water, ground water,
land surface or sub-surface strata), including but not limited to CERCLA, RCRA,
TSCA, OSHA, the Clean Air Act, the Clean Water Act, each as amended or
supplemented, and any applicable transfer statutes or laws; and "Materials of
Environmental Concern" means chemicals, pollutants, contaminants, hazardous
materials, hazardous substances and hazardous wastes, medical waste, toxic
substances, petroleum and petroleum products, asbestos-containing materials,
polychlorinated biphenyls, and any other chemicals, pollutants or substances
regulated under any Environmental Law.
(bb) The Company has not prior to the date hereof offered or sold
any securities which would be "integrated" for purposes of the Securities Act
and the Rider and Regulations with the offer and sale of the Shares pursuant to
the Registration Statement.
(cc) No relationship, direct or indirect, exists between or among
any of the Company or any affiliate of the Company, on the one hand, and any
director, officer, stockholder, customer or supplier of any of them, on the
other hand, which is required by the Securities Act or by the Rules and
Regulations to be described in the Registration Statement or the Prospectus
which is not so described or is not described as required.
(dd) Neither the Company, any of the Subsidiaries nor, to the
Company's knowledge, any of its employees or agents has at any time during the
last five years (i) made any unlawful contribution to any candidate for foreign
office, or failed to disclose fully any contribution in violation of law or (ii)
made any payment to any federal or state governmental officer or official, or
other person charged with similar public or quasi-public duties, other than
payments required or permitted by the laws of the United States or any
jurisdiction thereof.
(ee) The statistical and market-related data included in the
Prospectus are based on or derived from sources which the Company reasonably
believes to be reliable and accurate.
Any certificate signed by or on behalf of the Company and delivered to
the Representatives or to counsel for the Underwriters' shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
2. Representations and Warranties of the Stockholder Owners and the
Selling Stockholder. Each of X.X. Xxxx, Xxxxxxxx Xxxx (collectively, the
"Stockholder Owners") and the Selling Stockholder severally represents and
warrants to, and agrees with each of the Underwriters as of the date hereof, the
Closing Date and any Additional Closing Date that:
(a) This Agreement has been duly and validly authorized, executed
and delivered by or on behalf of the Selling Stockholder and is a valid and
binding agreement of the Selling Stockholder, enforceable against the Selling
Stockholder in accordance with its terms, except as enforcement hereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or by general
equitable principles.
10
(b) Each of the Custody Agreements and Powers of Attorney (each, a
"Custody Agreement and Power of Attorney") signed by (i) the Selling
Stockholder, (ii) the Company, as custodian (in such capacity, the "Custodian"),
and (iii) [_________], as the Selling Stockholder's attorney-in-fact (in such
capacity, the "Attorney-In-Fact"), has been duly and validly authorized,
executed and delivered by the Selling Stockholder and is a valid and binding
agreement of the Selling Stockholder, enforceable against it, him or her in
accordance with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general
equitable principles.
(c) The Selling Stockholder agrees that the Firm Shares and
Additional Shares, if any, to be sold by the Selling Stockholder on deposit with
the Custodian are subject to the interests of the Underwriters, that the
arrangements made for such custody are to that extent irrevocable, and that the
obligations of the Selling Stockholder hereunder shall not be terminated, except
as provided in this Agreement or in the Custody Agreement and Power of Attorney,
by any act of the Selling Stockholder, by operation of law, by death or
incapacity of the Selling Stockholder or by the occurrence of any other event.
If the Selling Stockholder should die or become incapacitated, or if any other
event should occur, before the delivery of the Firm Shares and Additional
Shares, if any, to be sold by the Selling Stockholder hereunder, the documents
evidencing the Firm Shares or Additional Shares, if any, to be sold by the
Selling Stockholder then on deposit with the Custodian shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement as if
such death, incapacity or other event had not occurred, regardless of whether or
not the Custodian shall have received notice thereof.
(d) The Selling Stockholder is the lawful owner of the Shares
proposed to be sold by the Selling Stockholder hereunder and upon sale and
delivery of, and payment for, such Shares as provided herein, the Selling
Stockholder will convey to the Underwriters good and marketable title to such
Shares, free and clear of all liens, charges, encumbrances, equities, claims and
security interests whatsoever. Certificates for all of the Shares to be sold by
the Selling Stockholder pursuant to this Agreement, in suitable form for
transfer by delivery or accompanied by duly executed instruments of transfer or
assignment in blank with signatures guaranteed, have been placed in custody with
the Custodian with irrevocable conditional instructions to deliver such Shares
to the Underwriters pursuant to this Agreement.
(e) The Selling Stockholder has good and valid title to all of the
Shares which may be sold by the Selling Stockholder pursuant to this Agreement
on such date and the legal right and power, and all authorizations and approvals
required by law to enter into this Agreement and the applicable Custody
Agreement and Power of Attorney, to sell, transfer and deliver all of the Shares
which may be sold by the Selling Stockholder pursuant to this Agreement and to
comply with its other obligations hereunder and thereunder.
(f) The Selling Stockholder (i) has been duly organized and validly
exists as a corporation, partnership or limited liability company in good
standing under the laws of its jurisdiction of organization, (ii) has all
requisite power and authority, and all necessary Consents of and from all
public, regulatory or governmental agencies and bodies and third parties to
execute, deliver, and perform this Agreement.
11
(g) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Selling Stockholder of this Agreement and the consummation by
the Selling Stockholder of the transactions contemplated herein, except such as
may have been obtained under the Securities Act and such as may be required
under the state securities laws or the blue sky laws or any jurisdiction in
connection with the purchase and distribution of the Shares by the Underwriters
and such other approvals as have been obtained.
(h) The execution, delivery and performance of this Agreement, the
Power of Attorney and the Custody Agreement by the Selling Stockholder and the
consummation by the Selling Stockholder of the transactions contemplated hereby
and thereby and the fulfillment of the terms hereof by the Selling Stockholder
do not and will not (i) conflict with, require consent under 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 Selling Stockholder pursuant to,
any indenture, mortgage, deed of trust, loan agreement or other agreement,
instrument, franchise, license or permit to which the Selling Stockholder is a
party or by which the Selling Stockholder or its properties or assets may be
bound or (ii) violate or conflict with any provision of the certificate or
articles of incorporation, by-laws, certificate of formation, limited liability
company agreement, partnership agreement or other organizational documents of
the Selling Stockholder or any judgment, decree, order, statute, law, rule or
regulation of any court or any public, governmental or regulatory agency or body
having jurisdiction over the Selling Stockholder or any of its properties,
operations 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, domestic or foreign, having
jurisdiction over the Selling Stockholder or any of its properties, operations
or assets, or any third party, is required for the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby or by the Registration Statement and by the Prospectus,
including the sale and delivery of the Shares to be sold and delivered by the
Selling Stockholder hereunder, except the registration under the Securities 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 or the by-laws and rules of the National
Association of Securities Dealers, Inc. (the "NASD") in connection with the
purchase and distribution of the Shares by the Underwriters, each of which has
been obtained.
(i) The Selling Stockholder does not have any registration or other
similar rights to have any equity or debt securities registered for sale by the
Company under the Registration Statement or included in the offering of the
Shares, except for such rights as have been waived or which are described in the
Prospectus.
(j) The Selling Stockholder does not own any warrants, options or
similar rights to acquire, and do not have any right or arrangement to acquire,
any capital stock, right, warrants, options or other securities from the
Company, other than those described in the Registration Statement and the
Prospectus.
(k) All information furnished by or on behalf of the Selling
Stockholder in writing for use in the Registration Statement and Prospectus is
true, correct, and complete in all
12
material respects and does not and will not contain any untrue statement of a
material fact; provided that this representation and warranty is made only as to
information contained in the Registration Statement or the Prospectus under the
caption "Principal and Selling Stockholders" and relating to the Selling
Stockholder.
(l) The Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has constituted
or which might reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares.
(m) The Selling Stockholder has not distributed and will not
distribute, prior to the later of the Additional Closing Date, if any, and the
completion of the Underwriters' distribution of the Shares, any offering
material in connection with the offering and sale of the Shares by the Selling
Stockholder other than a Preliminary Prospectus, the Prospectus or the
Registration Statement.
(n) The representations and warranties of the Selling Stockholder
in the Custody Agreement and Powers of Attorney are and will be true and
correct.
Any certificate signed by or on behalf of the Selling Stockholder and
delivered to the Representatives or to Underwriters' Counsel shall be deemed to
be a representation and warranty by the Selling Stockholder to each Underwriter
as to the matters covered thereby.
3. 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, each of the Company and the Selling Stockholder agrees to sell to each
Underwriter and each Underwriter, severally and not jointly, agrees to purchase
from each of the Company and the Selling Stockholder, at a purchase price per
share of $[_______], that proportion of the number of Firm Shares set forth in
Schedule II opposite the name of the Company or the Selling Stockholder, as the
case may be, which the number of Firm Shares set forth opposite the names of
such Underwriter in Schedule I hereto plus any additional number of Firm Shares
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof, bears to the total number of Firm Shares.
(b) Payment of the purchase price for, and delivery of certificates
for, the Shares shall be made at the office of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx
LLP ("Underwriters' Counsel"), or at such other place as shall be agreed upon by
Bear, Xxxxxxx & Co. Inc. and the Company, at 10:00 A.M., New York City time, on
the third or fourth business day (as permitted under Rule 15c6-1 under the
Exchange Act)(1) (unless postponed in accordance with the provisions of Section
10 hereof) following the date of the effectiveness of the Registration Statement
(or, if the Company has elected to rely upon Rule 430A of the Rules and
Regulations, the third or fourth business day (as permitted under Rule 15c6-1
under the Exchange Act) after
----------
1 If the transaction is priced after 4:30 p.m. Washington, D.C. time,
T+4 will apply to the transaction. If the pricing takes place
before or during market hours, the closing will be three business
days after pricing.
13
the determination of the 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
Bear, Xxxxxxx & Co. Inc. and the Company (such time and date of payment and
delivery being herein called the "Closing Date").
Payment for the Shares shall be made to or upon the order of the
Company and the Selling Stockholder by wire transfer in Federal (same day) funds
to the Company upon delivery of certificates for the Shares to bank accounts
designated by the Company and the Custodian pursuant to the Selling
Stockholder's Power of Attorney and Custody Agreement, as the case may be, upon
delivery of certificates for the Shares to you through the facilities of The
Depository Trust Company for the respective accounts of the several Underwriters
against receipt therefor signed by you. Certificates for the Shares to be
delivered to you shall be registered in such name or names and shall be in such
denominations as you may request at least one business day before the Closing
Date. The Company will permit you to examine and package such certificates for
delivery at least one full business day prior to the Closing Date.
(c) In addition, the Company hereby grants to the Underwriters,
acting severally and not jointly, the option to purchase up to 765,000
Additional Shares at the same purchase price per share to be paid by the
Underwriters to the Company and the Selling Stockholder for the Firm Shares as
set forth in this Section 3, 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 and from time to time, in whole or in part on one or more occasions, on or
before the thirtieth day following the date of the Prospectus, by written notice
by you to the Company. 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 (any such date and time being herein sometimes referred to as the
"Additional Closing Date"); provided, however, that the Additional Closing Date
shall not be earlier than the Closing Date (in which case the option may be
exercised on any day preceding the Closing Date) or earlier than the second full
business day after the date on which the option shall have been exercised nor
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 10 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 least one full business day prior to the
Additional Closing Date. The Company will permit you to examine and package such
certificates for delivery at least one full business day prior to the Additional
Closing Date.
If the option is exercised as to all or any portion of the Additional
Shares, each Underwriter, acting severally and not jointly, will purchase that
proportion of the total number of Additional Shares then being purchased which
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 10 hereof)
bears to the total number of Firm Shares being purchased from the Company,
subject, however, to such adjustments to eliminate any fractional shares as Bear
Xxxxxxx & Co. Inc. in its sole discretion shall make.
Payment for the Additional Shares to be sold by the Company shall be
made to the Company by wire transfer in Federal (same day) funds to bank
accounts designated by the Company at the offices of Underwriters' Counsel, or
such other location as may be mutually
14
acceptable, upon delivery of the certificates for the Additional Shares to you
for the respective accounts of the Underwriters.
(d) The Selling Stockholder hereby agrees that (i) it will pay all stock
transfer taxes, stamp duties and other similar taxes, if any, payable upon the
sale or delivery of the Shares or the Additional Shares to be sold by the
Selling Stockholder to the several Underwriters, or otherwise in connection with
the performance of the Selling Stockholder's obligations hereunder and (ii) the
Custodian is authorized to deduct for such payment any such amounts from the
proceeds to the Selling Stockholder hereunder and to hold such amounts for the
account of the Selling Stockholder with the Custodian under the Custody
Agreement and Power of Attorney.
4. Offering. Upon your authorization of the release of the Firm Shares,
the Underwriters propose to offer the Shares for sale to the public upon the
terms and conditions set forth in the Prospectus.
5. Covenants of the Company.
A. The Company covenants and agrees with the Underwriters that:
(a) 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) within
the prescribed time period and will provide evidence satisfactory to you of such
timely filing. If the Company elects to rely on Rule 434, the Company will
prepare and file a term sheet that complies with the requirements of Rule 434.
The Company will notify you immediately (and, if requested by you, will
confirm such notice in writing) (i) when the Registration Statement and any
amendments thereto become effective, (ii) of any request by the Commission for
any amendment of or supplement to the Registration Statement or the Prospectus
or for any additional information, (iii) of the Company's intention to file or
prepare any supplement, revision or amendment to the Registration Statement or
the Prospectus, (iv) of the mailing or the delivery to the Commission for filing
of any amendment of or supplement to the Registration Statement or the
Prospectus, (v) 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,
it being understood that the Company shall make every effort to avoid the
issuance of any such stop order, (v) of the receipt of any comments from the
Commission or its staff, and (vi) 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 that purpose. If the Commission or its staff shall propose or enter a stop
order at any time, the Company will make every reasonable effort 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
15
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 reasonably object in writing after being timely
furnished in advance a copy thereof.
(b) The Company shall comply with the Securities Act and the
Exchange Act to permit completion of the distribution as contemplated in this
Agreement, the Registration Statement and the Prospectus. If at any time when a
prospectus relating to the Shares is required to be delivered under the
Securities Act or the Exchange Act in connection with the sales of Shares, any
event shall have occurred as a result of which the Prospectus as then amended or
supplemented would, in the judgment of the Underwriters or the Company, 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 existing at the time of delivery to the
purchaser, not misleading, or if it shall be necessary at any time to amend or
supplement the Prospectus or Registration Statement to comply with the
Securities Act or the Rules and 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, subject to the second paragraph of Section 5(A)(a) hereof,
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.
(c) The Company will promptly deliver to each of the Underwriters
and Underwriters' Counsel a signed copy of the Registration Statement, including
all consents and exhibits filed therewith 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, 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. Prior to 10:00 A.M., New
York time, on the business day next succeeding the date of this Agreement and
from time to time thereafter, the Company will furnish the Underwriters with
copies of the Prospectus in New York City in such quantities as you may
reasonably request.
(d) The Company shall promptly deliver to each of the Underwriters
and to Underwriters' Counsel copies of the Preliminary Prospectus, and the
Company consents to the use and delivery of the Preliminary Prospectus by the
Underwriters in accordance with Rule 430 and Section 5(b) of the Securities Act.
The Company shall also furnish to each of the Underwriters copies of the Final
Prospectus as requested by any of the Underwriters.
(e) The Company will use its best efforts, 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
16
required for the distribution thereof; except that in no event shall the Company
be obligated in connection therewith to qualify as a foreign corporation or to
execute a general consent to service of process.
(f) The Company will make generally available to its security
holders and to the Underwriters as soon as practicable, but in any event not
later than eighteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Securities Act), an earnings
statement of the Company and the Subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158).
(g) During the period of ninety (90) days from the date of the
Prospectus, the Company will not, directly or indirectly, without your prior
written consent, issue, sell, offer or agree to offer or sell, solicit offers to
purchase, grant any call option or purchase any put option with respect to,
pledge, borrow or otherwise dispose of, make any short sale or maintain any
short position, establish or increase a "put equivalent position" or liquidate
or decrease a "call equivalent position" (in each case within the meaning of
Section 16 of the Exchange Act and all rules and regulations promulgated
thereunder), or otherwise enter into any swap, derivative transaction or other
transaction or arrangement that transfers to another, in whole or in part, any
of the economic consequences of ownership of the Common Stock (whether any such
transaction is to be settled by delivery of Common Stock, other securities, cash
or other consideration) or otherwise dispose of, any Common Stock (or any
securities convertible into, or exercisable or exchangeable for, Common Stock)
or interest therein of the Company or of any of the Subsidiaries, and the
Company will obtain the undertaking of each of its officers and directors and
such of its shareholders as have been heretofore designated by you and listed on
Schedule II attached hereto not to engage in any of the aforementioned
transactions on their own behalf, other than the Company's sale of Shares
hereunder and the Company's issuance of Common Stock upon (i) the conversion or
exchange of convertible or exchangeable securities outstanding on the date
hereof; (ii) the exercise of currently outstanding options or warrants; or (iii)
the grant and exercise of options under, or the issuance and sale of shares
pursuant to, employee stock option plans in effect on the date hereof.
(h) During the period of five years from the effective date of the
Registration Statement, the Company will furnish to you copies of all reports or
other communications (financial or other) furnished to security holders, and
will deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is listed;
and (ii) such additional information concerning the business and financial
condition of the Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the accounts of
the Company and the Subsidiaries are consolidated in reports furnished to its
security holders generally or to the Commission).
(i) The Company will apply the net proceeds from the sale of the
Shares as set forth under the caption "Use of Proceeds" in the Prospectus.
17
(j) The Company will use its best efforts to effect and maintain
the listing of the Shares for quotation on The NASDAQ National Market.
(k) The Company, during the period when the Prospectus is required
to be delivered under the Securities 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. The Selling Stockholder covenants and agrees with each Underwriter
to:
(a) deliver to the Representatives prior to the Closing Date, a
properly completed and executed United States Treasury Department Form W-8 (if
the Selling Stockholder is a non-United States Person) or Form W-9 (if the
Selling Stockholder is a United States Person);
(b) promptly notify the Company and the Representatives if, at any
time prior to the date on which the distribution of the Shares as contemplated
herein and in the Prospectus has been completed, as determined by the
Representatives, the Selling Stockholder has knowledge of the occurrence of any
event as a result of which the Prospectus or the Registration Statement, in each
case as then amended or supplemented, would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(c) cooperate to the extent necessary to cause the Registration
Statement or any post-effective amendment thereto to become effective at the
earliest possible time and to do and perform all things to be done and performed
under this Agreement prior to the Closing Date and to satisfy all conditions
precedent to the delivery of the Shares pursuant to this Agreement;
(d) pay or to cause to be paid all transfer taxes, stamp duties and
other similar taxes with respect to the Shares, if any, to be sold by the
Selling Stockholder; and
(e) deliver to Bear, Xxxxxxx & Co. Inc. on or prior to the date of
this Agreement each lock-up agreement referenced in Section 7(h) hereof.
6. Payment of Expenses. Whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
the Company and the Selling Stockholder hereby agree to pay all costs and
expenses incident to the performance of their respective obligations hereunder,
including the following: (i) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the registration of the
Shares under the Securities Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of producing any agreement among Underwriters, this Agreement, the blue
sky memoranda, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Shares; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws as provided in Section
5(A)(e) hereof, including the fees and
18
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the blue sky survey; (iv) all fees and
expenses in connection with listing the Shares on the NASDAQ National Market;
(v) all travel expenses of the Company's officers and employees and any other
expense of the Company incurred in connection with attending or hosting meetings
with prospective purchasers of the Shares; (vi) any stock transfer taxes
incurred in connection with this Agreement or the Offering; (vii) the filing
fees incident to, and the fees and disbursements of counsel for the Underwriters
in connection with, securing any required review by the NASD of the terms of the
sale of the Shares; and (ix) the fees of the Custodian and other fees and
expenses related to the offering of Shares by the Selling Stockholder. The
Company also will pay or cause to be paid: (i) the cost of preparing stock
certificates; (ii) the cost and charges of any transfer agent or registrar; and
(iii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section 6. It is understood, however, that except as provided in this Section,
and Sections 8 and 13 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel and stock transfer taxes on
resale of any of the Shares by them. Notwithstanding anything to the contrary in
this Section 6, in the event that this Agreement is terminated pursuant to
Section 7 or 13(b) hereof, or subsequent to a Material Adverse Change, the
Company will pay all out-of pocket expenses of the Underwriters (including the
fees and expenses of other counsel) incurred in connection herewith.
7. 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 Stockholder 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 Underwriters' Counsel pursuant to this Section 6 of any
misstatement or omission, to the performance by the Company and the Selling
Stockholder of their respective obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Registration Statement shall have become effective not
later than [IF PRICING PURSUANT TO RULE 430A: 5:30 P.M., NEW YORK TIME, ON THE
DATE OF THIS AGREEMENT] [IF PRICING PURSUANT TO A PRICING AMENDMENT: 12:00 P.M.,
NEW YORK TIME ON THE DATE AN AMENDMENT TO THE REGISTRATION STATEMENT CONTAINING
THE PUBLIC OFFERING PRICE HAS BEEN FILED WITH THE COMMISSION], (2) 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 5(A)(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 (i) the favorable
written opinion of Xxxxxx, Xxxxxxx & Xxxxxxxx LLP, counsel for the Company,
dated the Closing Date
----------
2 Appropriate provision to be determined.
19
and addressed to the Underwriters in the form attached hereto as Annex I; and
(ii) the favorable written opinion of [______________], counsel for the Selling
Stockholder, dated the Closing Date and addressed to the Underwriters in the
form attached hereto as Annex II.
(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) the condition set forth in subsection
0(a) of this Section 7 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, all agreements,
conditions, and obligations of the Company to be performed or complied with
hereunder on or prior thereto have been duly performed or complied with and (iv)
the Company and the 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, (v) subsequent
to the respective dates as of which information is given in the Registration
Statement and the Prospectus there has not been any Material Adverse Change, and
(vi) no stop order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereof has been issued and no proceedings
therefore have been initiated or threatened by the Commission.
(e) At the time this Agreement is executed and at the Closing Date,
you shall have received a comfort letter, from KPMG LLP, independent public
accountants for the Company, dated, respectively, as of the date of this
Agreement and as of the Closing Date addressed to the Underwriters and in form
and substance satisfactory to the Underwriters and Underwriters' counsel.
(f) You shall have also received from KPMG LLP a letter stating
that the Company's system of internal accounting controls taken as a whole is
sufficient to meet the broad objectives of internal accounting control insofar
as those objectives pertain to the prevention or detection of errors or
irregularities in amounts that would be material in relation to the financial
statements of the Company and its subsidiaries.
(g) Subsequent to the execution and delivery of this Agreement or,
if earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto), there shall not have been any change in the capital
stock or long-term debt of the Company or any of the Subsidiaries or any change,
or any development involving a prospective change, in or affecting the condition
(financial or otherwise), results of operations, business, properties or
prospects of the Company and the Subsidiaries taken as a whole, including,
without limitation, the occurrence of a fire, flood, explosion or other calamity
at any of the properties owned or leased by the
20
Company or any of its Subsidiaries, the effect of which, in any such case
described above, is, in the judgment of the Underwriters, so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Prospectus (exclusive of any supplement).
(h) You shall have also received an executed lock-up agreement from
each person who is a director or officer of the Company and each shareholder as
shall have been heretofore designated by you and listed on Schedule III hereto
substantially in the form attached hereto as Annex III.
(i) At the Closing Date, the Shares shall have been approved for
quotation on The NASDAQ National Market.
(j) At the Closing Date, the NASD shall have confirmed that it has
not raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(k) The Company shall have complied with the provisions of Section
5(A)(c) hereof with respect to the furnishing of prospectuses on the next
business day succeeding the date of this Agreement.
(l) At the Closing Date, you shall have received a certificate of
an authorized representative of the Selling Stockholder, dated the Closing Date,
to the effect that the representations and warranties of the Selling Stockholder
set forth in Section 2 hereof are accurate and that the Selling Stockholder has
complied with all agreements and satisfied all conditions on his or her part to
be performed or satisfied hereunder at or prior to the Closing Date.
(m) The Company shall have furnished the Underwriters and
Underwriters' Counsel with such other certificates, opinions or other documents
as they may have reasonably requested.
(n) In the event the Underwriters exercise their option to purchase
the Additional Shares, all of the conditions in this Section 7 must be satisfied
in connection with such Additional Shares on or prior to the Additional Closing
Date.
If any of the conditions specified in this Section 7 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 7 shall not be 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 in writing, or by telephone. Any such telephone notice shall be
confirmed promptly thereafter in writing. Such termination shall be without
liability of any party to any other party except as provided in Section 6 hereof
and except that Sections 1, 2, 8, 9, and 12 shall survive any such termination
and remain in full force and effect.
21
8. Indemnification.
(a) The Company and the Significant Subsidiaries shall, jointly and
severally, indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, against any and all losses, liabilities,
claims, damages and expenses whatsoever as incurred (including but not limited
to reasonable 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 Securities 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 (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, 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
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Company 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 Underwriters' Information.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have including under this Agreement.
(b) The Selling Stockholder and each Stockholder Owner who owns any
equity of the Selling Stockholder agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act
against any and all losses, liabilities, claims, damages and expenses whatsoever
as incurred (including but not limited to reasonable 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 Securities
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 (i) any untrue statement or alleged untrue statement of a material fact in
respect of the Selling Stockholder contained in the Registration Statement, 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
material fact in respect of a Selling Stockholder required to be stated therein
or necessary to make the statements therein not misleading; provided, however,
that in no such case shall the Selling Stockholder or any Stockholder Owner be
liable or responsible for any amount in excess of the proceeds (net of the
underwriting discount) applicable to the Shares sold by the Selling Stockholder
pursuant to the transactions contemplated hereby. This indemnity agreement will
be in addition to any liability which any the Selling Stockholder or any
Stockholder Owner may otherwise have including under this Agreement.
22
(c) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, 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 Securities Act or Section 20 of the Exchange Act, against any
losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to reasonable 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 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 Underwriters' Information;
provided, however, that in no such case shall any Underwriter be liable or
responsible for any amount in excess of the amount by which the aggregate
commissions received by such Underwriter in respect of Shares underwritten by it
and distributed to the public exceed the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. This indemnity will be
in addition to any liability which any Underwriter may otherwise have including
under this Agreement.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of any claims or 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 claim or the commencement
thereof (but the failure so to notify an indemnifying party shall not relieve
the indemnifying party from any liability which it may have under this Section 8
to the extent that it is not materially prejudiced as a result thereof and in
any event shall not relieve it from any liability that such indemnifying party
may have otherwise than on account of the indemnity agreement hereunder). In
case any such claim or action is brought against any indemnified party, an
indemnifying party may participate, at its own expense in the defense of such
action, 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; provided however, that counsel to the indemnifying party
shall not (except with the written consent of the indemnified party) also be
counsel to the indemnified party. Notwithstanding the foregoing, the indemnified
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, (iii) the
indemnifying party does not diligently
23
defend the action after assumption of the defense, or (iv) 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
such fees and expenses shall be borne by the indemnifying parties. No
indemnifying party shall, without the prior written consent of the indemnified
parties, effect any settlement or compromise of, or consent to the entry of
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could have been
sought under Section 8 or 9 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of the indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim,
(ii) does not include a statement as to, or an admission of, fault, culpability
or a failure to act, by or on behalf of the indemnified party, and (iii) the
indemnifying party reaffirms its obligations pursuant to this Agreement.
9. Contribution.
(a) In order to provide for contribution in circumstances in which
the indemnification provided for in Section 8 hereof is for any reason held to
be unavailable from any indemnifying party or is insufficient to hold harmless a
party indemnified thereunder, each indemnifying party 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 Stockholder, any contribution received
by the Company and/or the Selling Stockholder from persons, other than the
Underwriters, who may also be liable for contribution, including persons who
control the Company and/or the Selling Stockholder within the meaning of Section
15 of the Securities 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 Stockholder and one or more of the
Underwriters may be subject, in such proportions as are appropriate to reflect
the relative benefits received by the Company, the Selling Stockholder and the
Underwriters under this Agreement 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 8 hereof,
in such proportions as are appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company, the Selling
Stockholder and the Underwriters 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.
(b) The relative benefits received by the Company, the Selling
Stockholder and the Underwriters shall be deemed to be in the same proportion as
(x) the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and the
Selling Stockholder, respectively, bear to (y) the underwriting discount
received by the respective Underwriters, respectively, in each case as set forth
in the table on the cover page of the Prospectus.
24
(c) The relative fault of each of the Company, the Selling
Stockholder and of the Underwriters shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Stockholder or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(d) The Company, the Selling Stockholder, and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 9. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
9 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
(e) Notwithstanding the provisions of this Section 9, (i) no
Underwriter shall be required to contribute any amount in excess of the amount
by which the aggregate commissions received by such Underwriter in respect of
Shares underwritten by it and distributed to the public exceed the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and
(ii) no person guilty of fraudulent misrepresentation (within in the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 9, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 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
Securities Act or Section 20 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 and the
Selling Stockholder, as applicable, subject in each case to clauses (i) and (ii)
of the immediately preceding sentence. 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 9 or otherwise. The
obligations of the Underwriters to contribute pursuant to this Section 9 are
several in proportion to the respective number of Shares purchased by each of
the Underwriters hereunder and not joint.
10. 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
25
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, the 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 10, 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 Selling Stockholder to sell the Additional Shares shall thereupon terminate,
without liability on the part of the Company or the Selling Stockholder with
respect thereto (except in each case as provided in Sections 6, 8 and 9 hereof
with respect to the Company and Sections 8 and 9 hereof with respect to the
Selling Stockholder) or the Underwriters, but nothing in this Agreement shall
relieve a defaulting Underwriter or Underwriters of its or their liability, if
any, to the other Underwriters and the Company and the Selling Stockholder 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 Company
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 10 with like
effect as if it had originally been a party to this Agreement with respect to
such Firm Shares and Additional Shares.
11. Default by Selling Stockholder. If the Selling Stockholder shall
fail to sell and deliver the number of Shares which the Selling Stockholder is
obligated to sell hereunder, then the Underwriters may, at option of the
Representatives, by notice from the Representatives to the Company, terminate
this Agreement without any liability on the fault of any non-defaulting party
except that the provisions of Sections 1, 2, 6, 8, 9 and 12 shall remain in full
force and effect. No action taken pursuant to this Section 11 shall relieve the
Selling Stockholder from liability, if any, in respect of such default.
12. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Underwriters, and the Company and
the Selling Stockholder contained in this Agreement or in certificates of
officers of the Company or any Subsidiary submitted hereto or thereto, including
the agreements contained in Section 6, the
26
indemnity agreements contained in Section 8 and the contribution agreements
contained in Section 9, 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 or the Selling
Stockholder, any of their officers and directors 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 2 and the
agreements contained in Sections 6, 8, 9, 12 and 13(d) hereof shall survive the
termination of this Agreement, including termination pursuant to Section 10, 11
or 13 hereof.
13. 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 public offering price or the purchase price per Share has not been agreed
upon prior to 5:00 P.M., New York City 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
Stockholder or the Underwriters except as herein expressly provided. Until this
Agreement becomes effective as aforesaid, it may be terminated by the Company by
notifying you or by you notifying the Company. Notwithstanding the foregoing,
the provisions of this Section 13 and of Sections 1, 2, 6, 8 and 9 hereof shall
at all times be in full force and effect.
(b) You shall have the right to terminate this Agreement, by notice
to the Company and the Selling Stockholder, at any time prior to the Closing
Date or the obligations of the Underwriters to purchase any Additional Shares at
any time prior to any Additional Closing Date, as the case may be, if (A) 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 (B) if trading on the
NASDAQ National Market or the New York 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 NASDAQ
National Market or the New York Stock Exchange or by the NASD or by order of the
Commission or any other governmental authority having jurisdiction; or (C) if a
banking moratorium has been declared by any state or federal authority or if any
material disruption in commercial banking or securities settlement or clearance
services shall have occurred; or (D) any downgrading shall have occurred in the
Company's corporate credit rating or the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization" as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act or if any such organization shall have publicly announced that it
has under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities; or (E) if there has been since
the time of the execution of this Agreement or since the respective dates as of
which information is given in the Prospectus (excluding any supplement thereto),
any Material Adverse Effect, or (F) (i) if there shall have occurred any
outbreak or escalation of hostilities or acts of terrorism involving the United
States or there is a declaration of a national emergency or war by the United
States or (ii) if there shall have been any other calamity or crisis or any
change in political, financial or economic conditions if the effect of any such
event in (i) or (ii) as in your judgment makes it impracticable or inadvisable
to proceed with the offering, sale and delivery of the Firm Shares or the
27
Additional Shares, as the case may be, on the terms and in the manner
contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 13 shall be
in writing.
(d) If this Agreement is terminated pursuant to any of the
provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 13(a) hereof or (ii) Section 10(b)), 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 to perform any
agreement herein or comply with any provision hereof, the Company will, subject
to demand by you, reimburse the Underwriters for all out-of-pocket expenses
incurred by the Underwriters (including the fees and expenses of their counsel)
in connection herewith.
14. Notices. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing, and:
(a) if sent to any Underwriter, shall be mailed, delivered, or
faxed and confirmed in writing, to such Underwriter c/o Bear, Xxxxxxx & Co.
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Senior Managing
Director, Equity Capital Markets, with a copy to Underwriter's Counsel at Xxxxxx
Xxxxx Xxxxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx X. Xxxxxx, Esq.;
(b) if sent to the Company, shall be mailed, delivered, or faxed
and confirmed in writing to the Company and its counsel at the addresses set
forth in the Registration Statement, Attention: [___________];
provided, however, that any notice to an Underwriter pursuant to Section 8 shall
be delivered or sent by mail or facsimile transmission to such Underwriter at
its address set forth in its acceptance facsimile to you, which address will be
supplied to any other party hereto by you upon request. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof.
15. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the Underwriters, the Company, the Selling Stockholder
and the controlling persons, directors, officers, employees and agents referred
to in Section 8 and 9 hereof, 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. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors, and said controlling persons, directors,
officers, employees, agents and their heirs and legal representatives, and it is
not for the benefit of any other person, firm or corporation. The term
"successors and assigns" shall not include a purchaser, in its capacity as such,
of Shares from any of the Underwriters.
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
28
17. Counterparts. This Agreement may be executed in any number of
counterparts shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument. Counterparts may be delivered
by facsimile and shall have the same legally binding effect as an original.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
19. Time is of the Essence. Time shall be of the essence of this
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
[SIGNATURE PAGE FOLLOWS]
29
If the foregoing correctly sets forth the understanding among you, the
Company, the Significant Subsidiaries and the Selling Stockholder, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among us. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination, upon request, but
without warranty on your part as to the authority of the signers thereof.
Very truly yours,
X.X. XXXX TRANSPORT SERVICES, INC.
By:
---------------------------------------
Name:
Title:
X.X. XXXX TRANSPORT, INC.
By:
---------------------------------------
Name:
Title:
L.A., INC.
By:
---------------------------------------
Name:
Title:
X.X. XXXX CORP.
By:
---------------------------------------
Name:
Title:
30
FIS, INC.
By:
---------------------------------------
Name:
Title:
The Selling Stockholder:
By:
---------------------------------------
Name:
Title: Attorney-in-Fact for the Selling
Stockholder
X.X. XXXX
in his individual capacity
-------------------------------------------
XXXXXXXX XXXX
in her individual capacity
-------------------------------------------
Accepted as of the date first set forth above:
BEAR, XXXXXXX & CO. INC.
By:
---------------------------------------
Name:
Title:
31
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
--------------------------------------
Name:
Title:
DEUTSCHE BANK SECURITIES INC.
By:
--------------------------------------
Name:
Title:
On behalf of themselves and the other
Underwriters named in Schedule I hereto.
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SCHEDULE I
Number of
Firm Shares
to be
Name of Underwriter Purchased
------------------- -----------
Bear, Xxxxxxx & Co. Inc.
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
BB&T Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxxx Inc.
Total...............................................................
===========
SCHEDULE II
Number of Maximum Number of
Name Firm Shares Additional Shares
---- ----------- -----------------
Company
[SELLING STOCKHOLDER TO BE PROVIDED.]
1
SCHEDULE III
SHAREHOLDERS SUBJECT TO THE LOCK-UP PROVISION
[TO BE PROVIDED.]
ANNEX I
Form of Opinion of Company Counsel
(i) Each of the Company and the Subsidiaries has been duly incorporated and
is validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation with all requisite corporate 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 described
in the Prospectus.
(ii) The Company has an authorized, issued and outstanding capital stock as
set forth in the Registration Statement and the Prospectus in the
column entitled "Actual" under the caption "Capitalization" and will,
after the Offering, have an authorized, issued and outstanding capital
stock as set forth in the column entitled "As Adjusted" under the
caption "Capitalization." The authorized capital stock of the Company,
including the Shares, conforms as to legal matters to the description
thereof under the heading "Description of Capital Stock" in the
Registration Statement of the Company on Form S-1 filed on September
22, 1983.
(iii) All of the issued shares of capital stock of the Company have been duly
and validly authorized and issued, are fully paid and non-assessable;
were not issued in violation of or subject to any preemptive or similar
rights that entitle or will entitle any person to acquire any Shares
from the Company upon issuance or sale by the Company of Shares in the
Offering, except for such rights as may have been fully satisfied or
waived prior to the effectiveness of the Registration Statement; and
all Shares to be sold by the Company are owned directly or indirectly
by the Company, free and clear of all liens, charges, encumbrances,
equities or claims.
(iv) The Shares to be delivered on the Closing Date and any Additional
Closing Date, respectively, have been duly and validly authorized and,
when delivered in accordance with this Agreement, will be (in the case
of the Company Shares only) and are (in the case of the Selling
Stockholder Shares only) duly and validly issued, fully paid and
non-assessable and will not have been issued in violation of or subject
to preemptive or similar rights that entitle or will entitle any person
to acquire any Shares from the Company upon issuance thereof by the
Company.
(v) All of the issued shares of capital stock of each of the Subsidiaries
has been duly and validly authorized and issued and are fully paid and
non-assessable and are owned directly or indirectly by the Company,
free and clear of all liens, charges, encumbrances, equities or claims.
(vi) Except as disclosed in or specifically contemplated by the Prospectus,
the Company has no outstanding options to purchase, or any preemptive
rights or other rights to subscribe for or to purchase, any shares of
its capital stock or obligations convertible into, or any
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contracts or commitments to issue or sell, shares of its capital stock
or any such options, rights, convertible securities or obligations.
(vii) 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, the Company has not paid
any dividends on its capital stock.
(viii) The Common Stock currently outstanding is listed, and the Shares to be
sold under this Agreement to the Underwriters are duly authorized for
quotation on, The NASDAQ National Market.
(ix) Neither the Company nor any of the Subsidiaries is in violation of its
respective certificate or articles of incorporation, by-laws,
certificate of formation, limited liability company agreement,
partnership agreement or other organizational documents and, to the
best of such counsel's knowledge after due inquiry, neither the Company
nor any of the Subsidiaries is in default in the performance of any
obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and the Subsidiaries, taken
as a whole, to which the Company or any of the Subsidiaries is a party
or by which the Company or any of the Subsidiaries or their respective
properties may be bound.
(x) 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 and is the valid and
binding agreement of the Company.
(xi) The issuance and sale of the Shares by the Company, the execution,
delivery, and performance of this Agreement, compliance by the Company
with all provisions of this Agreement and the consummation of the
transactions contemplated hereby and by the Registration Statement and
the Prospectus do not and will not (A) conflict with or result in a
breach of any of the terms or 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 Subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or any other agreement,
instrument, franchise, license or permit known to such counsel to which
the Company or any of the Subsidiaries is a party or by which any of
the Company or any of the Subsidiaries or their respective properties
or assets is subject or may be bound or (B) violate or conflict with
any provision of the certificate of incorporation, by-laws, certificate
of formation, partnership agreement, limited liability agreement or
other organizational documents of the Company or any of the
Subsidiaries, 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 or any of the Subsidiaries or any of their respective
properties or assets.
(xii) 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, domestic or foreign, having
jurisdiction over the Company or any of the Subsidiaries or
2
any of their respective properties or assets or any other third party
is required for the issuance and sale of the Shares by the Company, the
execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby or by the
Registration Statement or the Prospectus, except for the registration
under the Securities 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.
(xiii) Except as described in the Prospectus, there are no legal or
governmental proceedings to which the Company or any of the
Subsidiaries is a party or of which any property of the Company or any
of the Subsidiaries is the subject which, if determined adversely to
the Company or any of the Subsidiaries, are reasonably likely,
singularly or in the aggregate, to have a Material Adverse Effect; and,
to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(xiv) Each of the Company and the Subsidiaries has all Consents as are
necessary to own, lease, license and operate its properties and to
conduct its business as described in the Prospectus, except where the
failure to have any such Consent would not have a Material Adverse
Effect; and the Company is not in violation of any such Consent, except
for any violations which would not have a Material Adverse Effect.
(xv) No holders of securities of the Company have any rights under any
agreement known to such counsel to which the Company or any of the
Subsidiaries is a party or by which any of the Company or any of the
Subsidiaries or their respective properties or assets is subject or may
be bound to have such securities included in the Registration
Statement, except for those rights that have been waived.
(xvi) The Company is not and, after giving effect to the offering and sale of
the Shares and the application of the proceeds thereof as described in
the Prospectus, will not be, an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(xvii) The Registration Statement, at the time it became effective and as of
the Closing Date, and the Prospectus, as of its date and as of the
Closing Date, complied as to form in all material respects to the
requirements of the Securities Act and the Rules and Regulations.
(xviii) The statements under the captions "Business" in the Prospectus and
under "Prospectus Summary", "Risk Factors", "Management's Discussion
and Analysis of Financial Condition and Results of Operations",
"Management" and "Related Party Transactions" in the Form 10-K, insofar
as such statements constitute a summary of the legal matters, documents
or proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents and
proceedings.
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(xix) The statements in the Prospectus under the caption "Underwriting,"
insofar as such statements purport to summarize certain provisions of
the Underwriting Agreement, fairly summarize such provisions in all
material respects.
(xx) No contract or agreement is required to be filed as an exhibit to the
Registration Statement or to a document incorporated by reference into
the Registration Statement that is not so filed, and no contract or
agreement is required to be described in the Registration Statement or
a document incorporated by reference into the Registration Statement
that is not described as required.
(xxi) The documents filed under the Exchange Act and incorporated by
reference in the Registration 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,
complied as to form in all material respects with the Exchange Act and
the rules and regulations of the Commission thereunder; and such
counsel has no reason to believe that any of such documents, when such
documents were so filed, contained, an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading.
(xxii) Such counsel has been orally advised by the Commission that the
Registration Statement was declared effective under the Act at ______
(a.m.), on ____________, 2002, and such counsel has been advised by the
Commission that no stop order suspending the effectiveness of the
Registration statement has been issued and no proceedings for that
purpose have been instituted or are pending or threatened by the
Commission.
In addition, such opinion shall also contain a statement that such
counsel has participated in conferences with officers and representatives of the
Company, representatives of the independent public accountants for the Company
and the Underwriters at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, no facts have come to the
attention of such counsel which would lead such counsel 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 any untrue statement of a material fact or omitted to state
any material fact required to be stated therein to make the statements therein
not misleading or that the Prospectus, as of its date (or any supplement thereto
made prior to the Closing Date as of the date of such 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 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 financial data included therein).
4
ANNEX II
Form of Opinion of Selling Stockholder's Counsel
(i) The Selling Stockholder is the lawful owner of the Shares and has,
and immediately prior to the Closing Date the Selling Stockholder will have,
good and marketable title to the Shares to be sold by the Selling Stockholder
under the Underwriting Agreement on such date, free and clear of all liens,
charges, encumbrances, equities or claims; and upon delivery of such shares and
payment therefor pursuant hereto and thereto, good and marketable title to such
shares, free and clear of all liens, charges, encumbrances, equities or claims
except those that may be created by the Underwriters, will pass to the several
Underwriters.
(ii) The Selling Stockholder has full legal right, power and authority
to enter into this Agreement, the Power of Attorney and the Custody Agreement.
(iii) This Agreement, the Custody Agreement, the Power of Attorney and
the transactions contemplated herein and therein have been duly and validly
authorized by the Selling Stockholder and this Agreement, the Custody Agreement
and the Power of Attorney have been duly executed and delivered by the Selling
Stockholder and are the valid and binding agreements of the Selling Stockholder,
enforceable against it in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the rights and remedies of creditors
or by general equitable principles.
(iv) The execution, delivery and performance of the Underwriting
Agreement, the Power of Attorney and the Custody Agreement by the Selling
Stockholder and the consummation by the Selling Stockholder of the transactions
contemplated thereby will not conflict with or result in a breach of any of the
terms of 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 Selling Stockholder pursuant to, any indenture, mortgage, deed of
trust, loan agreement or any other agreement, instrument, franchise, license or
permit known to such counsel to which the Selling Stockholder is a party or by
which the Selling Stockholder or its properties or assets is subject or may be
bound, nor will such actions violate or conflict with any provision of the
certificate of incorporation, by-laws, certificate of formation, partnership
agreement, limited liability agreement or other organizational documents of the
Selling Stockholder, 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 Selling
Stockholder or any of its properties or assets; and, except for the registration
of the Shares under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
applicable state or foreign securities laws in connection with the purchase and
distribution of the Shares by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery and
performance of the Underwriting Agreement, the Power of Attorney or the Custody
Agreement by the Selling Stockholder and the consummation by the Selling
Stockholder of the transactions contemplated thereby.
1
(v) The Attorney-in-Fact has been duly authorized by the Selling
Stockholder to deliver the Shares on behalf of the Selling Stockholder in
accordance with the terms of the Underwriting Agreement.
(vi) No facts have come to the attention of such counsel which would
lead such counsel 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 any untrue statement of a
material fact 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 (it being understood that such counsel need
express no belief or opinion with respect to the financial statements and
schedules and other financial data included therein).
2
ANNEX III
_______________ __, 2002
BEAR, XXXXXXX & CO. INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES INC.
as Representatives of the several Underwriters
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Equity Capital Markets
X.X. Xxxx Transport Services, Inc. Lock-Up Agreement
Ladies and Gentlemen:
We refer to the proposed Underwriting Agreement (the "Underwriting
Agreement"), between X.X. Xxxx Transport Services, Inc., an Arkansas corporation
(the "Company"), and you as representatives of the Underwriters named therein
(the "Underwriters") relating to an underwritten public offering (the
"Offering") of common stock, $.01 par value (the "Common Stock"), of the
Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned hereby agrees that, without the prior
written consent of Bear, Xxxxxxx & Co. Inc., Credit Suisse First Boston
Corporation and Deutsche Bank Securities Inc., the undersigned will not,
directly or indirectly, during the period from the date hereof until ninety (90)
days from the date of the final prospectus for the Offering (the "Lock-Up
Period"), (i) offer, sell, agree to offer or sell, solicit offers to purchase,
grant any call option or purchase any put option with respect to, pledge, borrow
or otherwise dispose of, or (ii) make any short sale or maintain any short
position, establish or increase a "put equivalent position" or liquidate or
decrease a "call equivalent position" with respect to, any Relevant Security (in
each case within the meaning of Section 16 of the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder), or
otherwise enter into any swap, derivative transaction or other transaction or
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of any Relevant Security (whether or not such
transaction is to be settled by delivery of Relevant Securities, other
securities, cash or other consideration). As used herein, "Relevant Security"
means the Common Stock, any other equity security of the Company or any of the
Subsidiaries and any security convertible into, or exercisable or exchangeable
for, any Common Stock or other such equity security.
The undersigned hereby further agrees that, during the Lock-up Period,
the undersigned (x) will not file or participate in the filing with the
Securities and Exchange Commission of any registration statement, or circulate
or participate in the circulation of any preliminary or final prospectus or
other disclosure document with respect to any proposed offering or sale of a
3
Relevant Security and (y) will not exercise any rights the undersigned may have
to require registration with the Securities and Exchange Commission of any
proposed offering or sale of a Relevant Security.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this letter agreement and that this
letter agreement constitutes the legal, valid and binding obligation of the
undersigned, enforceable in accordance with its terms. Upon request, the
undersigned will execute any additional documents necessary in connection with
enforcement hereof. Any obligations of the undersigned shall be binding upon the
successors and assigns of the undersigned from the date first set forth above.
This letter agreement shall be governed by and construed in accordance
with the laws of the State of
New York. Delivery of a signed copy of this letter
by telecopier or facsimile transmission shall be effective as delivery of the
original hereof.
Very truly yours,
By:
-------------------------------
Print Name:
------------------------
4
