EXHIBIT 1.1
R&W DRAFT
12/2/97
1,600,000 SHARES
XXXXXXX CORPORATION
COMMON STOCK
(PAR VALUE $1.00 PER SHARE)
UNDERWRITING AGREEMENT
----------------------
, 1997
---------------
XXXXXX XXXX LLC
XXXXXXXX & COMPANY SECURITIES, INC.
ABN AMRO CHICAGO CORPORATION
c/o Xxxxxx Xxxx LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. INTRODUCTION. Xxxxxxx Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell to you (the "Underwriters") an aggregate
of 400,000 shares (the "Company Shares") of the Company's Common Stock, par
value $1.00 per share (the "Common Stock"). The stockholders listed in Schedule
II hereto (the "Selling Stockholders") propose severally to sell to the several
Underwriters an aggregate of 1,200,000 outstanding shares of Common Stock. The
400,000 shares of Common Stock to be sold by the Company and the 1,200,000
shares of Common Stock to be sold by the Selling Stockholders are referred to
herein as the "Firm Shares." The Company also grants to the several
Underwriters the option to purchase up to an aggregate of not more than 60,000
additional shares of Common Stock. One of the Selling Stockholders also grants
to the several Underwriters the option to purchase up to an aggregate of not
more than 64,484 additional shares of Common Stock. The 60,000 additional
shares of Common Stock to be sold by the Company and the 64,484 additional
shares of Common Stock to be sold by one of the Selling Stockholders are
collectively referred to herein as the "Additional Shares." The Firm Shares and
the Additional Shares are collectively referred to herein as the "Shares."
The Company and each of the Selling Stockholders hereby severally
agree with the several Underwriters as follows:
2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents, warrants and agrees with each of the
Underwriters that:
(i) Two registration statements on Form S-3 (File Nos. 333-37083
and 333-37085) under the Securities Act of 1933 as amended (the "Act"),
with respect to the Shares, including a form of prospectus subject to
completion, have been prepared by the Company in conformity with the
requirements of the Act and the rules and regulations of the Securities and
Exchange Commission (the "Commission") thereunder (the "Rules and
Regulations"). Such registration statements have been filed with the
Commission under the Act, and one or more amendments to such registration
statements also have been so filed. After the execution of this Agreement,
the Company shall file with the Commission either (A) if such registration
statements, as they may have been amended, have been declared by the
Commission to be effective under the Act, a prospectus in the form most
recently included in an amendment to such registration statements filed
with the Commission, with such insertions and changes as are required by
Rule 430A under the Act or permitted by Rule 424(b) under the Act as shall
have been provided to and approved by the Underwriters prior to the filing
thereof, or (B) if either such registration statement, as amended, has not
been declared by the Commission to be effective under the Act, an amendment
to such registration statement, including a form of prospectus, a copy of
which amendment has been furnished to and approved by the Underwriters
prior to the filing thereof. As used in this Agreement: the term
"Registration Statement" means each such registration statement, as amended
at the time when it was or is declared effective, including all financial
schedules and exhibits thereto and to documents incorporated therein by
reference; each Registration Statement shall be deemed to include any
information omitted therefrom pursuant to Rule 430A under the Act and
included in the Prospectus (as hereinafter defined) and any registration
statement filed pursuant to Rule 462(b) under the Act to increase the
number of Shares; the term "Preliminary Prospectus" means each prospectus
subject to completion contained in a registration statement or any
amendment thereto (including the prospectus subject to completion, if any,
included in a Registration Statement or any amendment thereto or filed
pursuant to Rule 424(a) under the Act at the time it was or is declared
effective); and the term "Prospectus" means the prospectus first filed with
the Commission pursuant to Rule 424(b) under the Act or, if no prospectus
is required to be filed pursuant to said Rule 424(b), such term means the
prospectus included in each Registration Statement. References herein to
any document or other information incorporated by reference in a
Registration Statement shall include documents or other information
incorporated by reference in the Prospectus (or, if the Prospectus is not
in existence, in the most recent Preliminary Prospectus). Reference made
herein to any Preliminary Prospectus or the Prospectus shall be deemed to
include all documents and information incorporated by reference therein and
shall be deemed to refer to and include any documents and information filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, which are so incorporated by reference, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
2
(ii) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus and has not instituted or
threatened to institute any proceedings with respect to such an order.
When any Preliminary Prospectus provided by the Company to the Underwriters
for distribution to the public was filed with the Commission it (A)
contained all statements required to be stated therein in accordance with,
and complied in all material respects with the requirements of, the Act and
the Rules and Regulations and (B) did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. When each Registration Statement or any
amendment thereto was or is declared effective, it (A) contained or will
contain all statements required to be stated therein in accordance with,
and complied or will comply in all material respects with the requirements
of, the Act and the Rules and Regulations and (B) did not or will not
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading.
When the Prospectus and when any amendment or supplement thereto is filed
with the Commission pursuant to Rule 424(b) (or, if the Prospectus or such
amendment or supplement is not required to be so filed, when each
Registration Statement and when any amendment thereto containing such
amendment or supplement to the Prospectus was or is declared effective) and
at all times subsequent thereto up to and including the Closing Date (as
defined in Section 3 hereof) and the Option Closing Date (as defined in
Section 9 hereof), the Prospectus, as amended or supplemented at any such
time, (A) contained or will contain all statements required to be stated
therein in accordance with, and complied or will comply in all material
respects with the requirements of, the Act and the Rules and Regulations
and (B) did not or will not include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The foregoing provisions of this paragraph (ii)
shall not apply to statements or omissions made in any Preliminary
Prospectus, any Registration Statement or any amendment thereto or the
Prospectus or any amendment or supplement thereto in reliance upon, and in
conformity with, information furnished in writing to the Company by or on
behalf of the Underwriters expressly for use therein. The documents which
are incorporated by reference in any Preliminary Prospectus provided by the
Company to the Underwriters for distribution to the public or the
Prospectus or from which information is so incorporated by reference, when
they became effective or were filed with the Commission, as the case may
be, complied in all material respects with the requirements of the Act and
the Rules and Regulations or the Exchange Act and the rules and regulations
thereunder, as applicable, and did not, when such documents were so filed,
contain any untrue statement of a material fact or omit to state a 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, and any documents so filed and incorporated by
reference subsequent to the effective date of each Registration Statement
shall, when they are filed with the Commission, conform in all material
respects with the requirements of the Act and the Rules and Regulations and
the Exchange Act and the rules and regulations thereunder, as applicable.
3
(iii) Each of the Company and its subsidiaries (the
"Subsidiaries") (A) is a duly organized and validly existing corporation or
limited partnership in good standing under the laws of its jurisdiction of
organization with full power and authority (corporate, partnership and
other) to own or lease its properties and to conduct its business as
described in each Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus);
and (B) is duly qualified to do business and is in good standing in each
jurisdiction (x) in which the conduct of its business requires such
qualification and (y) in which it owns or leases property (in each case
except for those jurisdictions in which the failure so to qualify has not
had and will not have a Material Adverse Effect. "Material Adverse Effect"
means, when used in connection with the Company or its Subsidiaries, any
development, change or effect that is materially adverse to the business,
properties, assets, net worth, condition (financial or other), results of
operations or prospects of the Company and its Subsidiaries taken as a
whole.
(iv) The Company has the duly authorized and validly outstanding
capitalization as of September 30, 1997 set forth under the caption
"Capitalization" in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and will have the
adjusted capitalization as of September 30, 1997 set forth therein on the
Closing Date and the Option Closing Date, based on the assumptions set
forth therein. The securities of the Company conform to the descriptions
thereof contained in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus). The outstanding shares
of Common Stock have been duly authorized and validly issued by the Company
and are fully paid and nonassessable. Except as created hereby or referred
to in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), there are no outstanding options, warrants,
rights or other arrangements requiring the Company at any time to issue any
capital stock. No holders of outstanding shares of capital stock of the
Company are entitled as such to any preemptive or other rights to subscribe
for any of the Shares and neither the filing of the registration statements
nor the offering or sale of the Shares as contemplated by this Agreement
gives rise to any rights, other than those which have been waived or
satisfied, for or relating to, the registration of any securities of the
Company. The Shares have been duly authorized and are validly issued,
fully paid and nonassessable; and, after payment therefor and transfer
thereof in accordance with this Agreement, good and marketable title to the
Company Shares will pass to the Underwriters on the Closing Date or the
Option Closing Date (as the case may be) free and clear of any lien,
encumbrance, security interest, claim or other restriction whatsoever. All
the outstanding shares of capital stock or partnership interests of each
Subsidiary have been duly authorized and validly issued, are fully paid and
nonassessable (in the case of corporate Subsidiaries only), except as
provided in Section 630 of the New York Business Corporation Law, and in
each case are owned directly by the Company or another Subsidiary, free and
clear of any lien, encumbrance, security interest, claim or other
restriction whatsoever. The Shares are listed on The New York Stock
Exchange and the Company knows of no reason or set of facts which is likely
to adversely affect such listing.
4
(v) The financial statements and the related notes and schedules
thereto included in each Registration Statement or incorporated therein by
reference and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) fairly present the financial
condition, results of operations, stockholders' equity and cash flows of
the Company and its Subsidiaries at the dates and for the periods specified
therein. Such financial statements and the related notes and schedules
thereto have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved (except as
otherwise noted therein) and such financial statements as are audited have
been examined by Ernst & Young LLP, Schitag Ernst & Young Deutsche
Allgmeine Treuhand AG Wirtschaftsprufung-sgesellschaft or Xxxxx & Xxxxxxx,
all of whom are independent public accountants within the meaning of the
Act and the Rules and Regulations, as indicated in their reports filed
therewith. The selected financial information and statistical data set
forth under the captions "Prospectus Summary -- Summary Consolidated
Financial Data," "Capitalization," "Management's Discussion and Analysis of
Results of Operations and Financial Condition" and "Business" in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) have been prepared on a basis consistent with the
financial statements of the Company and its Subsidiaries. The pro forma
financial statements of the Company and its Subsidiaries, and the related
notes thereto, set forth in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence the most recent Preliminary
Prospectus), have been prepared in conformity with the requirements of the
Act and the Rules and Regulations and present fairly the information shown
therein; and the pro forma adjustments on such pro forma financial
statements have been properly applied on the basis described in the related
notes thereto. The pro forma financial data set forth in the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus), under the captions "Prospectus Summary -- Summary Consolidated
Financial Data," "Capitalization" and "Management's Discussion and Analysis
of Results of Operations and Financial Condition," have been prepared on a
basis consistent with the pro forma consolidated financial statements of
the Company and its Subsidiaries.
(vi) The Company and each of its Subsidiaries has filed all
necessary United States federal, state and local, and all necessary
foreign, income, franchise and other material tax returns and has paid all
taxes shown as due thereunder, and the Company has no knowledge of any tax
deficiency which might be assessed against the Company or any of its
Subsidiaries which, if so assessed, may have a Material Adverse Effect.
(vii) The Company and each of its Subsidiaries maintains
insurance of the types and in amounts which they reasonably believe to be
adequate for their business.
(viii) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus),
there is no pending action, suit, proceeding or investigation or threatened
action, suit, proceeding or investigation before or by any court,
regulatory body or administrative agency or any other
5
governmental agency or body, domestic or foreign, which (A) questions the
validity of the capital stock of the Company or this Agreement or of any
action taken or to be taken by the Company pursuant to or in connection
with this Agreement, (B) is required to be disclosed in either Registration
Statement which is not so disclosed (and such proceedings, if any, as are
summarized in each Registration Statement or incorporated therein by
reference are accurately summarized in all respects), or (C) could
reasonably be expected to have a Material Adverse Effect.
(ix) The Company has full legal right, power and authority to
enter into this Agreement and to consummate the transactions provided for
herein. This Agreement has been duly authorized, executed and delivered by
the Company, and none of the Company's execution or delivery of this
Agreement, its performance hereunder, its consummation of the transactions
contemplated herein, its application of the net proceeds of the offering in
the manner set forth under the caption "Use of Proceeds" or the conduct of
its business as described in the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus), conflicts or will
conflict with or results or will result in any breach or violation of any
of the terms or provisions of, or constitutes or will constitute a default
under, causes or will cause (or permits or will permit) the maturation or
acceleration of any liability or obligation or the termination of any right
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 its
Subsidiaries pursuant to the terms of (A) the certificate of incorporation
or by-laws of the Company or any of its Subsidiaries, (B) any indenture,
mortgage, deed of trust, voting trust agreement, stockholders' agreement,
note agreement or other agreement or instrument to which the Company or any
of its Subsidiaries is a party or by which any of them are or may be bound
or to which any of their respective property is or may be subject or (C)
any statute, judgment, decree, order, rule or regulation applicable to the
Company or any of its Subsidiaries of any government, arbitrator, court,
regulatory body or administrative agency or other governmental agency or
body, domestic or foreign, having jurisdiction over the Company, any of its
Subsidiaries or any of their respective activities or properties.
(x) All agreements filed or incorporated by reference as exhibits
to each Registration Statement to which the Company or any of its
Subsidiaries is a party or by which any of them are or may be bound or to
which any of their assets, properties or businesses is or may be subject
have been duly and validly authorized, executed and delivered by the
Company or such Subsidiary, as the case may be, and constitute the legal,
valid and binding agreements of the Company or such Subsidiary, as the case
may be, enforceable against each of them in accordance with their
respective terms (except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
relating to enforcement of creditors' rights generally, and general
equitable principles relating to the availability of remedies, and except
as rights to indemnity or contribution may be limited by federal or state
securities laws and the public policy underlying such laws). The
descriptions in each Registration Statement or incorporated therein by
reference of contracts and other documents are accurate and fairly present
the information required to be shown with respect thereto by the Act and
6
the Rules and Regulations, and there are no contracts or other documents
which are required by the Act or the Rules and Regulations to be described
in either Registration Statement or filed as exhibits to either
Registration Statement which are not described or filed as required or
incorporated therein by reference, and the exhibits which have been filed
are complete and correct copies of the documents of which they purport to
be copies.
(xi) Subsequent to the most recent respective dates as of which
information is given in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), and except as expressly
contemplated therein, neither the Company nor any of its Subsidiaries has
incurred, other than in the ordinary course of its business, any material
liabilities or obligations, direct or contingent, purchased any of its
outstanding capital stock, paid or declared any dividends or other
distributions on its capital stock or entered into any material
transactions not in the ordinary course of business, and there has been no
material change in capital stock or debt or any material adverse change in
the business, properties, assets, net worth, condition (financial or
other), or results of operations or prospects of the Company and its
Subsidiaries taken as a whole. Neither the Company nor any of its
Subsidiaries (and the manner in which any of them conducts its business) is
in breach or violation of, or in default under, any term or provision of
(A) its certificate of incorporation or bylaws, (B) any indenture,
mortgage, deed of trust, voting trust agreement, stockholders' agreement,
note agreement or other agreement or instrument to which it is a party or
by which it is or may be bound or to which any of its property is or may be
subject, or any indebtedness, the effect of which breach or default singly
or in the aggregate could reasonably be expected to have a Material Adverse
Effect, or (C) any statute, judgment, decree, order, rule or regulation
applicable to the Company or any of its Subsidiaries or of any arbitrator,
court, regulatory body, administrative agency or any other governmental
agency or body, domestic or foreign, having jurisdiction over the Company
or any of its Subsidiaries or any of their respective activities or
properties and the effect of which breach or default singly or in the
aggregate could reasonably be expected to have a Material Adverse Effect.
(xii) No labor disturbance by the employees of the Company or
any of its Subsidiaries exists or is imminent which could reasonably be
expected to have a Material Adverse Effect.
(xiii) Each of the Company and its Subsidiaries owns, or is
licensed or otherwise has sufficient right to use, the material proprietary
knowledge, inventions, patents, trademarks, service marks, trade names,
logo marks and copyrights used in or necessary for the conduct of its
business (collectively "Rights") as described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
No claims have been asserted against the Company or any of its Subsidiaries
by any person with respect to the use of any such Rights or challenging or
questioning the validity or effectiveness of any such Rights. The use, in
connection with the business and operations of the Company of such Rights
does not, to the Company's best knowledge, infringe on the rights of any
person.
7
(xiv) No consent, approval, authorization or order of or filing
with any court, regulatory body, administrative agency or any other
governmental agency or body, domestic or foreign, is required for the
performance of this Agreement or the consummation of the transactions
contemplated hereby, except such as have been or may be obtained under the
Act or may be required under state securities or Blue Sky laws in
connection with the Underwriters' purchase and distribution of the Shares.
(xv) Neither the Company nor, to the best knowledge of the
Company, any of its officers, directors or affiliates (within the meaning
of the Rules and Regulations) has taken, directly or indirectly, any action
designed to stabilize or manipulate the price of any security of the
Company, or which has constituted or which could reasonably be expected to
cause or result in stabilization or manipulation of the price of any
security of the Company, to facilitate the sale or resale of the Shares or
otherwise.
(xvi) Each of the Company and its Subsidiaries has good and
marketable title to, or valid and enforceable leasehold interests in, all
properties and assets owned or leased by it, free and clear of all liens,
encumbrances, security interests, claims, restrictions, equities, claims
and defects, except (A) such as are described in each Registration
Statement and Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), or such as do not materially adversely
affect the value of any of such properties or assets taken as a whole and
do not materially interfere with the use made and proposed to be made of
any of such properties or assets, and (B) liens for taxes not yet due and
payable as to which appropriate reserves have been established and
reflected in the financial statements included or incorporated by reference
in each Registration Statement. The Company owns or leases all such
properties as are necessary to its operations as now conducted, and as
proposed to be conducted as set forth in each Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), and the properties and business of the Company and
its Subsidiaries conform in all material respects to the descriptions
thereof contained in the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus). All the material leases and subleases of the Company and its
Subsidiaries, and under which the Company or any Subsidiary holds material
properties or assets as lessee or sublessee, constitute valid leasehold
interests of the Company or such Subsidiary free and clear of any lien,
encumbrance, security interest, restriction, equity, claim or defect, are
in full force and effect, and neither the Company nor any Subsidiary is in
default in respect of any of the material terms or provisions of any such
material leases or subleases, and neither the Company nor any Subsidiary
has notice of any claim which has been asserted by anyone adverse to the
Company's or any of its Subsidiary's rights as lessee or sublessee under
either the material lease or sublease, or affecting or questioning the
Company's or any Subsidiary's right to the continued possession of the
leased or subleased premises under any such material lease or sublease,
which may have a Material Adverse Effect.
(xvii) Neither the Company nor any Subsidiary has violated any
applicable environmental, safety, health or similar law applicable to the
business of the
8
Company, nor any foreign or United States federal or state law relating to
discrimination in the hiring, promotion, or pay of employees, nor any
applicable federal or state wages and hours law, nor any provisions of
ERISA or the rules and regulations promulgated thereunder, the consequences
of which violation could reasonably be expected to have a Material Adverse
Effect.
(xviii) Each of the Company and its Subsidiaries holds all
material franchises, licenses, permits, approvals, certificates and other
authorizations from foreign and United States federal, state and other
governmental or regulatory authorities necessary to the ownership, leasing
and operation of its properties or required for the present conduct of its
business, and such material franchises, licenses, permits, approvals,
certificates and other governmental authorizations are in full force and
effect and the Company and its Subsidiaries are in compliance therewith
except where the failure so to obtain, maintain or comply with could not
reasonably be expected to have a Material Adverse Effect.
(xix) No Subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such Subsidiary's capital stock, from
repaying to the Company any loans or advances to such Subsidiary from the
Company or from transferring any of such Subsidiary's property or assets to
the Company or any other Subsidiary of the Company, except as described in
or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), and except where such
prohibition could not reasonably be expected to have a Material Adverse
Effect.
(xx) The Company meets the requirements for use of Form S-3 under
the Rules and Regulations.
(b) Each Selling Stockholder severally represents and warrants
to, and agrees with, the several Underwriters that:
(i) Such Selling Stockholder has full legal right, power and
authority to enter into this Agreement. This Agreement has been duly
executed and delivered by such Selling Stockholder.
(ii) None of the execution, delivery or performance of this
Agreement and the consummation of the transactions herein contemplated,
will conflict with or result in a breach of, or default under, any
indenture, mortgage, deed of trust, voting trust agreement, stockholders'
agreement, note agreement, or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder is or
may be bound or to which any of his or its property is or may be subject,
or any statute, judgment, decree, order, rule or regulation applicable to
such Selling Stockholder of any government, arbitrator, court, regulatory
body or administrative agency or other governmental agency or body,
domestic or foreign, having jurisdiction over such Selling Stockholder or
any of his activities or properties.
9
(iii) At the date hereof such Selling Stockholder has, and at
the time of delivery of the Shares to be sold by such Selling Stockholder
to the several Underwriters, such Selling Stockholder will have, full
right, power and authority to sell, assign, transfer and deliver the Shares
to be sold by such Selling Stockholder hereunder. At the date hereof such
Selling Stockholder is, and at the time of delivery of the Shares to be
sold by such Selling Stockholder, such Selling Stockholder will be, the
lawful owner of and has and will have, good and marketable title to such
Shares free and clear of any liens, encumbrances, security interests,
claims, community property rights, restrictions on transfer or other
defects in title. Upon delivery of and payment for the Shares to be sold
by such Selling Stockholder hereunder, good and marketable title to such
Shares will pass to the Underwriters, free and clear of any liens,
encumbrances, security interests, claims, community property rights,
restrictions on transfer or other defects in title. Except as described in
each Registration Statement and the Prospectus (or, if there is no
Prospectus, the most recent Preliminary Prospectus) or created hereby,
there are no outstanding options, warrants, rights, or other agreements or
arrangements requiring such Selling Stockholder at any time to transfer any
Common Stock to be sold hereunder by such Selling Stockholder.
(iv) At the time when each Registration Statement becomes or
became effective, and at all times subsequent thereto up to and including
the Closing Date and the Option Closing Date, each Registration Statement
and any amendments thereto will not contain any untrue statement of a
material fact regarding such Selling Stockholder or omit to state a
material fact regarding such Selling Stockholder required to be stated
therein or necessary in order to make the statements therein regarding such
Selling Stockholder not misleading, and the Prospectus (and any supplements
thereto) (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) will not contain any untrue statement of a material
fact regarding such Selling Stockholder or omit to state a material fact
regarding such Selling Stockholder required to be stated therein or
necessary in order to make the statements therein regarding such Selling
Stockholder, in light of the circumstances under which they were made, not
misleading.
(v) Such Selling Stockholder has not taken, directly or
indirectly, any action designed to stabilize or manipulate the price of any
security of the Company, or which has constituted or which might in the
future reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company, to facilitate the
sale or resale of the Shares or otherwise.
(vi) There is not pending or threatened against such Selling
Stockholder any action, suit or proceeding which (A) questions the validity
of this Agreement or of any action taken or to be taken by such Selling
Stockholder pursuant to or in connection with this Agreement or (B) is
required to be disclosed in either Registration Statement which is not so
disclosed, and such actions, suits or proceedings as are summarized in each
Registration Statement, if any, are accurately summarized.
3. PURCHASE, SALE AND DELIVERY OF THE SHARES. On the basis of the
representations, warranties, covenants and agreements herein contained, but
subject to the terms
10
and conditions herein set forth, (A) the Company agrees to sell to each
Underwriter and each Underwriter, severally and not jointly, agrees to purchase
from the Company at a purchase price of $_____ per Share, the number of Firm
Shares set forth opposite the name of such Underwriter in Column (1) of Schedule
I hereto and (B) each Selling Stockholder, severally and not jointly, agrees to
sell to each Underwriter, and each Underwriter, severally and not jointly,
agrees to purchase from such Selling Stockholder at the same purchase price per
Share, the number of Firm Shares equal to the number of Firm Shares set forth
opposite the name of such Underwriter in Column (2) of Schedule I, multiplied by
the number of Firm Shares set forth opposite the name of such Selling
Stockholder in Column (1) of Schedule II and divided by the total number of Firm
Shares to be sold by all Selling Stockholders, in each case subject to such
adjustments as are necessary to eliminate any fractional shares.
Delivery of certificates, and payment of the purchase price, for the
Firm Shares shall be made at the offices of Xxxxxx Xxxx LLC at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or such other location as shall be agreed upon by the
Company and the Underwriters. Such delivery and payment shall be made at 10:00
a.m., New York City time, on __________, 1997 or at such other time and date not
more than ten business days thereafter as shall be agreed upon by the
Underwriters and the Company. The time and date of such delivery and payment
are herein called the "Closing Date."
Delivery of the certificates for the Firm Shares shall be made to the
Underwriters for the respective accounts of the several Underwriters against
payment by the several Underwriters of the purchase price for the Firm Shares by
wire transfer of same day funds to an account of the Company in the case of Firm
Shares sold by it and the Selling Stockholders in the case of Firm Shares sold
by the Selling Stockholders. The certificates for the Firm Shares to be so
delivered will be in definitive, fully registered form, will bear no restrictive
legends and will be in denominations and registered in such names as the
Underwriters shall request not less than two full business days prior to the
Closing Date. The certificates for the Firm Shares will be made available to
Xxxxxx Xxxx LLC at such office or such other place as Xxxxxx Xxxx LLC may
designate for inspection, checking and packaging not later than 9:30 a.m., New
York time on the business day prior to the Closing Date.
4. PUBLIC OFFERING OF THE SHARES. It is understood that the
Underwriters propose to make a public offering of the Shares at the price and
upon the other terms set forth in the Prospectus.
5. COVENANTS OF THE COMPANY AND THE SELLING STOCKHOLDERS.
(a) The Company covenants and agrees with each of the
Underwriters that:
(i) The Company will use its best efforts to cause each
Registration Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto to become effective as promptly as
practicable. If required, the Company will file the Prospectus and any
amendment or supplement thereto with the Commission in the manner and
within the time period required by Rule 424(b) under the
11
Act. During any time when a prospectus relating to the Shares is required
to be delivered under the Act, the Company (A) will comply with all
requirements imposed upon it by the Act and the Rules and Regulations to
the extent necessary to permit the continuance of sales of or dealings in
the Shares in accordance with the provisions hereof and of the Prospectus,
as then amended or supplemented, and (B) will not file with the Commission
the prospectus or the amendment referred to in the third sentence of
Section 2(a)(i) hereof, any amendment or supplement to such prospectus or
any amendment to either Registration Statement of which the Underwriters
shall not previously have been advised and furnished with a copy a
reasonable period of time prior to the proposed filing and as to which
filing the Underwriters shall not have given their consent.
(ii) As soon as the Company is advised or obtains knowledge
thereof, the Company will advise the Underwriters (A) when each
Registration Statement, as amended, has become effective; if the provisions
of Rule 430A promulgated under the Act will be relied upon, when the
Prospectus has been filed in accordance with said Rule 430A and when any
post-effective amendment to either Registration Statement becomes
effective; (B) of any request made by the Commission for amending either
Registration Statement, for supplementing any Preliminary Prospectus or the
Prospectus or for additional information; or (C) of the issuance by the
Commission of any stop order suspending the effectiveness of either
Registration Statement or any post-effective amendment thereto or any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto or the institution or
threat of any investigation or proceeding for that purpose, and will use
its best efforts to prevent the issuance of any such order and, if issued,
to obtain the lifting thereof as soon as possible.
(iii) The Company consents to the use of the Prospectus (and any
amendment or supplement thereto) by the Underwriters and all dealers to
whom the Shares may be sold, in connection with the offering or sale of the
Shares and for such period of time thereafter as the Prospectus is required
by law to be delivered in connection therewith. If, at any time when a
prospectus relating to the Shares is required to be delivered under the
Act, any event occurs as a result of which the Prospectus, as then amended
or supplemented, would include any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein not
misleading, or if it becomes necessary at any time to amend or supplement
the Prospectus to comply with the Act or the Rules and Regulations, the
Company promptly will so notify the Underwriters and, subject to Section
5(a)(i) hereof, will prepare and file with the Commission an amendment to
each Registration Statement or an amendment or supplement to the Prospectus
which will correct such statement or omission or effect such compliance,
each such amendment or supplement to be reasonably satisfactory to counsel
to the Underwriters.
(iv) As soon as practicable, but in any event not later than 45
days after the end of the 12-month period beginning on the day after the
end of the fiscal quarter of the Company during which the effective date of
the Registration Statements occur (90 days in the event that the end of
such fiscal quarter is the end of the
12
Company's fiscal year), the Company will make generally available to its
security holders, in the manner specified in Rule 158(b) of the Rules and
Regulations, and to the Underwriters, an earnings statement which will be
in the detail required by, and will otherwise comply with, the provisions
of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations,
which statement need not be audited unless required by the Act or the Rules
and Regulations, covering a period of at least 12 consecutive months after
the effective date of the Registration Statements.
(v) During a period of five years after the date hereof, the
Company will furnish to its stockholders, as soon as practicable, annual
reports (including financial statements audited by independent public
accountants) and unaudited quarterly reports of earnings, and will
concurrently deliver to the Underwriters copies of such reports and any
other material furnished to the Company's stockholders.
(vi) The Company will maintain a Transfer Agent and, if necessary
under the jurisdiction of incorporation of the Company, a Registrar (which
may be the same entity as the Transfer Agent) for its Common Stock.
(vii) The Company will furnish, without charge, to the
Underwriters or on the Underwriters' order, at such place as the
Underwriters may designate, copies of the each Preliminary Prospectus, each
Registration Statement and any pre-effective or post-effective amendments
thereto (two of which copies will be signed and will include all financial
statements and exhibits) and the Prospectus, and all amendments and
supplements thereto, in each case as soon as available and in such
quantities as the Underwriters may reasonably request.
(viii) The Company will not, directly or indirectly, without the
prior written consent of the Underwriters, issue, offer, sell, grant any
option to purchase or otherwise dispose (or announce any issuance, offer,
sale, grant of any option to purchase or other disposition) of any shares
of Common Stock or any securities convertible into, or exchangeable or
exercisable for, shares of Common Stock for a period of 180 days after the
date hereof, except pursuant to this Agreement, except for issuances in
connection with an acquisition, merger or similar business combination
transaction or issuances pursuant to the exercise of stock options
outstanding on or granted subsequent to the date hereof, pursuant to (i) a
stock option or other employee benefit plan in existence on the date
hereof, (ii) the Company's Plan for the Deferral of Directors Fees and
(iii) except as contemplated by the Prospectus.
(ix) The Company will use its best efforts to maintain the
listing of the Shares on The New York Stock Exchange.
(x) The Company will apply the net proceeds of the offering
received by it in the manner set forth under the caption "Use of Proceeds"
in the Prospectus.
13
(b) Each Selling Stockholder covenants and agrees with each of
the Underwriters that:
(i) Each Selling Stockholder will not, directly or indirectly,
without the prior written consent of the Underwriters, offer, sell, grant
any option to purchase or otherwise dispose (or announce any offer, sale,
grant of any option to purchase or other disposition) of any shares of
Common Stock or any securities convertible into, or exchangeable or
exercisable for, shares of Common Stock for a period of 90 days after the
date hereof, except pursuant to this Agreement, and will not take during
such period, directly or indirectly, any action designed to, or which could
in the foreseeable future reasonably be expected to cause or result in,
stabilization or manipulation of the price of any securities of the
Company.
(ii) Each Selling Stockholder consents to the use of the
Prospectus and any amendment or supplement thereto by the Underwriters and
all dealers to whom the Shares may be sold, both in connection with the
offering or sale of the Shares and for such period of time thereafter as
the Prospectus is required by law to be delivered in connection therewith.
6. EXPENSES.
(a) Regardless of whether the transactions contemplated in this
Agreement are consummated, and regardless of whether for any reason this
Agreement is terminated, the Company and the Selling Stockholders will pay, and
hereby agree to indemnify each Underwriter against, all fees and expenses
incident to the performance of the obligations of the Company and the Selling
Stockholders under this Agreement, including, but not limited to: (i) fees and
expenses of accountants and counsel for the Company and the Selling
Stockholders, (ii) all costs and expenses incurred in connection with the
preparation, duplication, printing, filing, delivery and shipping of copies of
the Registration Statements and any pre-effective or post-effective amendments
thereto, any Preliminary Prospectus and the Prospectus and any amendments or
supplements thereto (including postage costs related to the delivery by any
financial printer selected by the Company to persons identified by the
Underwriters of any Preliminary Prospectus or Prospectus, or any amendment or
supplement thereto, but excluding postage costs related to the delivery of any
such materials or other materials by the Underwriters independently of
deliveries made by a financial printer selected by the Company), this Agreement
and all other documents in connection with the transactions contemplated herein,
including the cost of all copies thereof, (iii) filing fees of the Commission
and the NASD relating to the Shares, (iv) any fees and expenses in connection
with the listing of the Shares on The New York Stock Exchange, (v) costs and
expenses incident to the preparation, issuance and delivery to the Underwriters
of any certificates evidencing the Shares, including transfer agent's and
registrar's fees and any applicable transfer taxes incurred in connection with
the delivery to the Underwriters of the Shares to be sold by the Company and the
Selling Stockholders pursuant to this Agreement, and (vi) costs and expenses
relating to travel by representatives of the Company which is incident to any
meetings with prospective investors in the Shares (other than as shall have been
specifically approved by the Underwriters to be paid for by the Underwriters).
14
(b) If the purchase of the Shares as herein contemplated is not
consummated for any reason other than the Underwriters' default under this
Agreement or other than by reason of Section 11(a), the Company and the Selling
Stockholders shall reimburse the several Underwriters for their out-of-pocket
expenses (including reasonable counsel fees and disbursements) in connection
with any investigation made by them, and any preparation made by them in respect
of marketing of the Shares or in contemplation of the performance by them of
their obligations hereunder; provided, however, that the maximum amount for
which the Company and the Selling Stockholders shall be liable pursuant to this
Section 6(b) is $150,000.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligation of
each Underwriter to purchase and pay for the Shares set forth opposite the name
of such Underwriter in Schedule I is subject to the continuing accuracy of the
representations and warranties of the Company and the Selling Stockholders
herein as of the date hereof and as of the Closing Date as if they had been made
on and as of the Closing Date; the accuracy on and as of the Closing Date of the
statements of officers of the Company and the Selling Stockholders made pursuant
to the provisions hereof; the performance by the Company and the Selling
Stockholders on and as of the Closing Date of their respective covenants and
agreements hereunder; and the following additional conditions:
(a) If the Company has elected to rely on Rule 430A under the Act, the
Registration Statements shall have been declared effective, and the Prospectus
(containing the information omitted pursuant to Rule 430A) shall have been filed
with the Commission not later than the Commission's close of business on the
second business day following the date hereof or such later time and date to
which the Underwriters shall have consented; if the Company does not elect to
rely on Rule 430A, the Registration Statement shall have been declared effective
not later than 11:00 A.M., New York time, on the date hereof or such later time
and date to which the Underwriters shall have consented; if required, in the
case of any changes in or amendments or supplements to the Prospectus in
addition to those contemplated above, the Company shall have filed such
Prospectus as amended or supplemented with the Commission in the manner and
within the time period required by Rule 424(b) under the Act; no stop order
suspending the effectiveness of each Registration Statement or any amendment
thereto shall have been issued, and no proceedings for that purpose shall have
been instituted or threatened or, to the knowledge of the Company or the
Underwriters, shall be contemplated by the Commission; and the Company shall
have complied in all material respects with any request of the Commission for
additional information (to be included in each Registration Statement or the
Prospectus or otherwise).
(b) Neither Registration Statement, or any amendment thereto, contains
an untrue statement of fact which, in the Underwriters' reasonable opinion, is
material, or omits to state a fact which, in the Underwriters' reasonable
opinion, is material and is required to be stated therein or is necessary to
make the statements therein not misleading, or that the Prospectus, or any
supplement thereto, contains an untrue statement of fact which, in the
Underwriters' reasonable opinion, is material, or omits to state a fact which,
in the Underwriters' reasonable opinion, is material and is required to be
stated therein or is necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
15
(c) On or prior to the Closing Date, the Underwriters shall have
received from counsel to the Underwriters, such opinion or opinions with respect
to the issuance and sale of the Firm Shares, each Registration Statement and the
Prospectus and such other related matters as the Underwriters reasonably may
request and such counsel shall have received such documents and other
information as they request to enable them to pass upon such matters.
(d) On the Closing Date the Underwriters shall have received the
opinion, dated the Closing Date, of Nixon, Hargrave, Devans & Xxxxx LLP, counsel
to the Company ("Company Counsel"), to the effect set forth below:
(i) Each of the Company and its U.S. Subsidiaries (A) is duly
organized and validly existing as a corporation or limited partnership in
good standing under the laws of its jurisdiction of formation with full
power and authority (corporate, partnership and other) to own or lease its
properties and to conduct its business as described in the Prospectus, and
(B) is duly qualified to do business as a foreign entity and is in good
standing in each jurisdiction (x) in which the conduct of its business
requires such qualification and (y) in which it owns or leases property (in
each case except for those jurisdictions in which the failure so to qualify
can be cured without having a Material Adverse Effect);
(ii) The Company has authorized capital stock as set forth in the
Prospectus; the securities of the Company conform in all material respects
to the description thereof contained in the Prospectus; the outstanding
shares of Common Stock have been duly authorized and validly issued by the
Company, are fully paid and nonassessable, and are free of any preemptive
or, to such counsel's knowledge, any other rights to subscribe for any of
the Shares; the Company has duly authorized the sale of the Shares to be
sold by it hereunder; such Shares, are validly issued, fully paid and
nonassessable and conform in all material respects to the description
thereof contained in the Prospectus and are not be subject to any
preemptive, or, to such counsel's knowledge, any subscription or other
similar rights; and the Shares are listed on The New York Stock Exchange;
(iii) Such counsel has been advised by the Commission that each
Registration Statement is effective under the Act; any required filing of
the Prospectus pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); and such counsel has no
knowledge that any stop order suspending the effectiveness of either
Registration Statement or any amendment thereto has been issued, or that
proceedings for that purpose have been instituted, are pending or are
threatened or contemplated under the Act; each Registration Statement and
each amendment thereto and the Prospectus and, if any, each amendment and
supplement thereto (except for the financial statements, schedules and
other financial data included therein, as to which such counsel need not
express any opinion), complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations; the descriptions
contained and summarized in the Registration Statement and the Prospectus
of contracts and other documents, are accurate and fairly represent in all
material respects the information
16
required to be shown by the Act and the Rules and Regulations with respect
to such contracts and other documents; such counsel is not aware of any
contracts or documents which are required by the Act to be described in the
Registration Statements or the Prospectus or to be filed as exhibits to the
Registration Statements which are not described or filed as required by the
Act and the Rules and Regulations; such counsel is not aware of any action,
suit, proceeding or investigation before or by any court, regulatory body,
or administrative agency or any other governmental agency or body, domestic
or foreign, pending or threatened against the Company and of a character
required to be disclosed in the Registration Statements or the Prospectus
which is not so disclosed therein; and the statements set forth under the
headings "Description of Capital Stock" and "Certain Anti-Takeover
Provisions," in the Prospectus, insofar as such statements constitute a
summary of the legal matters, documents or proceedings referred to therein,
provide an accurate summary of such legal matters, documents and
proceedings;
(iv) The Company has full legal right, power, and authority to
enter into this Agreement and to consummate the transactions provided for
herein; this Agreement has been duly authorized, executed and delivered by
the Company;
(v) Upon the delivery of the Company Shares and payment therefor
in accordance with the terms of this Agreement and assuming that each of
the Underwriters which has severally purchased such Company Shares acquires
such Company Shares without notice of any adverse claim (within the meaning
of the Uniform Commercial Code), such Underwriter will have acquired all of
the rights of the Company to such Company Shares and will have acquired
title to such Company Shares free and clear of any adverse claim.
(vi) None of the Company's execution or delivery of this
Agreement, its performance hereof, its consummation of the transactions
contemplated herein or its application of the net proceeds of the offering
in the manner set forth under the caption "Use of Proceeds," conflicts or
will conflict with or results or will result in any breach or violation of
any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon, any
property or assets of the Company or any of its U.S. Subsidiaries pursuant
to the terms of the certificate of incorporation or by-laws of the Company
or any of its U.S. Subsidiaries; the terms of any agreement or other
document which is an exhibit to either Registration Statement or any
document incorporated by reference in either Registration Statement; any
statute, rule or regulation of any regulatory body or administrative agency
or other governmental agency or body, domestic or foreign, having
jurisdiction over the Company or any of its Subsidiaries or any of their
respective activities or properties; or any judgment, decree or order,
known to such counsel after reasonable investigation, of any government,
arbitrator, court, regulatory body or administrative agency or other
governmental agency or body, domestic or foreign, having such jurisdiction;
and such counsel is not aware that any consent, approval, authorization or
order of any court, regulatory body or administrative agency or other
governmental agency or body, domestic or foreign, has been or is required
for the Company's performance of this
17
Agreement or the consummation of the transactions contemplated hereby,
except such as have been obtained under the Act or may be required under
state securities or blue sky laws in connection with the purchase and
distribution by the Underwriters of the Shares;
(vii) The issued shares of capital stock of each of the U.S.
Subsidiaries have been duly authorized and validly issued, are fully paid
and nonassessable and are owned by the Company free and clear of any
perfected security interests or, to the best knowledge of such counsel, any
other liens, encumbrances, claims or security interests; and
(viii) Such counsel is not aware of any claims, except those
described in the Prospectus, which have been asserted against the Company
or any of its Subsidiaries by any person challenging or questioning the
validity or effectiveness of any Rights used in, or necessary for, the
conduct of its business as described in the Prospectus or alleging that the
business and operations of the Company and its Subsidiaries using such
Rights infringe on the rights of any person.
In addition, such counsel shall state that in the course of the
preparation of the Registration Statements and the Prospectus, such counsel has
participated in conferences with officers and representatives of the Company and
with the Company's independent public accountants, at which conferences such
counsel made inquiries of such officers, representatives and accountants and
discussed the contents of the Registration Statements and the Prospectus and
(without taking any further action to verify independently the statements made
in the Registration Statements and the Prospectus and, except as stated in the
foregoing opinion, without assuming responsibility for the accuracy,
completeness or fairness of such statements) nothing has come to such counsel's
attention that causes such counsel to believe that (i) either Registration
Statement as of the date it is declared effective and as of the Closing Date, or
(ii) the Prospectus as of the date thereof and as of the Closing Date contained
or contains any untrue statement of a material fact or omitted or omits to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading (it being understood that such counsel need
not express any opinion with respect to the financial statements, schedules and
other financial data included in either Registration Statement or the
Prospectus).
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials. In addition, where an opinion is
qualified by "the best knowledge of such counsel," that such counsel is "not
aware of" or other words of similar import, such opinion is based solely upon
the conscious awareness of facts or other information by the attorneys at such
counsel's firm who have had active involvement in the transactions contemplated
by this Agreement and such opinion shall not imply that such counsel has
undertaken any independent investigation to determine whether or not such fact,
circumstance or other information is true or exists.
References to the Registration Statements and the Prospectus in this
paragraph (d) shall include any amendment or supplement thereto at the date of
such opinion.
18
(e) On or prior to the Closing Date, counsel to the Underwriters shall
have been furnished such documents, certificates and opinions as they may
reasonably request in order to evidence the accuracy, completeness or
satisfaction of any of the representations or warranties of the Company or the
Selling Stockholders, or conditions herein contained.
(f) At the time that this Agreement is executed by the Company the
Underwriters shall have received from Ernst & Young LLP a letter as of the date
this Agreement is executed by the Company in form and substance satisfactory to
you (the "Original Letter"), and on the Closing Date the Underwriters shall have
received from such firm a letter dated the Closing Date stating that, as of a
specified date not earlier than five (5) days prior to the Closing Date, nothing
has come to the attention of such firm to suggest that the statements made in
the Original Letter are not true and correct.
(g) On the Closing Date, the Underwriters shall have received a
certificate, dated the Closing Date, of the principal executive officer and the
principal financial or accounting officer of the Company to the effect that each
of such persons has carefully examined the Registration Statements and the
Prospectus and any amendments or supplements thereto and this Agreement, and
that:
(i) The representations and warranties of the Company in this
Agreement are true and correct, as if made on and as of the Closing Date,
and the Company has complied with all agreements and covenants and
satisfied all conditions contained in this Agreement on its part to be
performed or satisfied at or prior to the Closing Date; and
(ii) To the best knowledge of each of such persons, no stop order
suspending the effectiveness of either Registration Statement has been
issued, and no proceedings for that purpose have been instituted or are
pending or are contemplated or threatened under the Act, and any and all
filings required by Rule 424 and Rule 430A have been timely made.
References to the Registration Statements and the Prospectus in this
paragraph (g) are to such documents as amended and supplemented at the date of
the certificate.
(h) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus up to and including the
Closing Date there has not been (i) any change or decrease specified in the
letter or letters referred to in paragraph (f) of this Section 7 or (ii) any
change, or any development involving a prospective change, in the business or
properties of the Company or its Subsidiaries which change or decrease in the
case of clause (i) or change or development in the case of clause (ii) makes it
impractical or inadvisable in the Underwriters' reasonable judgment to proceed
with the public offering or the delivery of the Shares as contemplated by the
Prospectus.
(i) On the Closing Date, the Underwriters shall have received the
opinion, dated the Closing Date, of Nixon, Hargrave, Devans & Xxxxx LLP in its
capacity as counsel for the Selling Stockholders, to the effect set forth below:
19
(i) Each Selling Stockholder has full legal right, power and
authority to enter into this Agreement and to sell, assign, transfer and
deliver in the manner provided herein the Shares sold by such Selling
Stockholder; this Agreement has been duly executed and delivered by such
Selling Stockholder; and
(ii) None of the execution, delivery or performance of this
Agreement by such Selling Stockholder and the consummation by such Selling
Stockholder of the transactions herein contemplated, conflict with or
result in a breach of, or default under, any material indenture, mortgage,
deed of trust, voting trust agreement, stockholders agreement, note
agreement or other agreement or other instrument of which such counsel is
aware to which such Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the property of any of the Selling
Stockholders is subject, or the charter or by-laws of any of the Selling
Stockholders that are corporations, and nothing has come to such counsel's
attention which causes such counsel to believe that such actions will
result in any violation of any law, rule, administrative regulation or
court decree applicable to such Selling Stockholder (other than state
securities or blue sky laws or regulations, as to which such counsel need
not express any opinion); and
(iii) Upon the delivery of the Shares to be sold hereunder by
the Selling Stockholders and payment therefor in accordance with the terms
of this Agreement and assuming that each of the Underwriters which has
severally purchased such Shares acquires such Shares without notice of any
adverse claim (within the meaning of the Uniform Commercial Code), such
Underwriter will have acquired all of the rights of such Selling
Stockholder to the Shares sold by such Selling Stockholder hereunder, and
in addition will have acquired title to such Shares free and clear of any
adverse claim.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Selling Stockholders and public officials. In addition, where
an opinion is qualified by "the best knowledge of such counsel," that such
counsel is "not aware of" or other words of similar import, such opinion is
based solely upon the conscious awareness of facts or other information by the
attorneys at such counsel's firm who have had active involvement in the
transactions contemplated by this Agreement and such opinion shall not imply
that such counsel has undertaken any independent investigation to determine
whether or not such fact, circumstance or other information is true or exists.
References to the Registration Statement and the Prospectus in this
paragraph (i) shall include any amendment or supplement thereto at the date of
such opinion.
(j) On the Closing Date, the Underwriters shall have received the
opinion, dated the Closing Date, of Beiten, Xxxxxxxxx, Xxxxx & Xxxxxx in its
capacity as counsel for Xxxxxxx-Xxxxx Maschinen und Werkzeuge Corporation,
Xxxxxxx-Xxxxxxx Maschinenfabrik GmbH and Xxxxxxx Xxxxxxx GmbH & Co. (together,
the "German Subsidiaries") to the effect set forth below:
20
(i) Each of the German Subsidiaries is duly organized, registered
and validly existing as a limited liability company or limited partnership
under the laws of the Federal Republic of Germany;
(ii) Each German Subsidiary has the capacity as a legal entity
under German law to own property and other assets and to enter into and
perform contracts.
(iii) All of the capital stock of the German Subsidiaries is
owned by the Company or one of its direct or indirect wholly-owned
Subsidiaries, and, to the knowledge of such counsel, such capital stock is
owned free and clear of any pledges, liens or other encumbrances or
restrictions whatsoever, except that 65% of the capital stock of each of
the German Subsidiaries has been pledged to the Chase Manhattan Bank and
certain other lenders under the Credit Agreement dated as of July 31, 1997
among Xxxxxxx Corporation et al., as Borrowers, The Chase Manhattan Bank,
as Administrative Agent, the Lenders named therein and Corestates Bank,
N.A. et al., as co-agents;
(iv) To the best knowledge of such counsel, the share capital of
each German Subsidiary has been fully paid in, has not been paid back and
no obligation to effect additional contributions exists in respect of its
shares.
(v) Such counsel is not aware of any action, suit, proceeding or
investigation before or by any court, regulatory body, or administrative
agency or any other governmental agency, pending or threatened against any
German Subsidiary which, if determined adversely to such German Subsidiary,
could be reasonably expected to have a Material Adverse Effect.
(k) On the Closing Date, the Underwriters shall have received a
certificate, dated the Closing Date, from each Selling Stockholder to the effect
that such Selling Stockholder has carefully examined the Registration Statement
and the Prospectus and this Agreement, and that the representations and
warranties of such Selling Stockholder in this Agreement are true and correct,
as if made at and as of the Closing Date, and such Selling Stockholder has
complied with all the agreements and satisfied all the conditions to be
performed or satisfied by such Selling Stockholder at or prior to the Closing
Date.
(l) The Underwriters shall have received from Xxxxx Xxxxxxx an
agreement to the effect that Xx. Xxxxxxx will not, directly or indirectly,
without the prior written consent of the Underwriters, offer, sell, grant any
option to purchase or otherwise dispose (or announce any offer, sale, grant of
an option to purchase or other disposition) of any shares of Common Stock or any
securities convertible into, or exchangeable or exercisable for, shares of
Common Stock for a period of 90 days after the date of this Agreement, except
for sales of Common Stock made by Xx. Xxxxxxx in order to pay income taxes
incurred as a result of the exercise of options to purchase Common Stock.
(m) The Company and the Selling Stockholders shall have furnished the
Underwriters with such further certificates or documents as you or counsel for
the Underwriters
21
may reasonably request. All opinions, certificates, letters and documents to be
furnished by the Company and the Selling Stockholders will comply with the
provisions hereof only if they are reasonably satisfactory in all material
respects to the Underwriters and to counsel for the Underwriters. The Company
and the Selling Stockholders shall furnish the Underwriters with conformed
copies of such opinions, certificates, letters and documents in such quantities
as you reasonably request. The certificates delivered under this Section 7
shall constitute representations, warranties and agreements of the Company and
the Selling Stockholders, as the case may be, as to all matters set forth
therein as fully and effectively as if such matters had been set forth in
Section 2 of this Agreement.
(n) The Shares shall be listed on The New York Stock Exchange.
8. INDEMNIFICATION.
(a) The Company and the Selling Stockholders, jointly and severally,
agree to indemnify and hold harmless each Underwriter and each person, if any,
who controls such Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, against any and all losses, claims, damages or
liabilities, joint or several (and actions in respect thereof), to which such
Underwriter or such controlling person may become subject, under the Act or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or actions arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or the Prospectus or any
Preliminary Prospectus, or any amendment 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 not
misleading and will reimburse, as incurred, such Underwriter or such controlling
persons for any legal or other expenses incurred by such Underwriter or such
controlling persons in connection with investigating, defending or appearing as
a third party witness in connection with any such loss, claim, damage, liability
or action; provided, however, that the obligations of each of the Selling
-------- -------
Stockholders pursuant to this Section 8(a) shall apply only to the extent that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information furnished
in writing by such Selling Stockholder expressly for use in such documents, and
provided, further, that the Company and such Selling Stockholder will not be
-------- -------
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in any of such
documents in reliance upon and in conformity with information furnished in
writing to the Company on behalf of such Underwriter expressly for use therein,
and provided, further, that such indemnity with respect to any Preliminary
-------- -------
Prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of any person controlling such Underwriter) from whom the person asserting any
such loss, claim, damage, liability or action purchased Shares which are the
subject thereof to the extent that any such loss, claim, damage, liability or
action (i) results from the fact that such Underwriter failed to send or give a
copy of the Prospectus (as amended or supplemented) to such person at or prior
to the confirmation of the sale of such Shares to such person in any case where
such delivery is required by the Act and (ii) arises out of or is based upon an
untrue statement or
22
omission of a material fact contained in such Preliminary Prospectus that was
corrected in the Prospectus (as amended and supplemented), unless such failure
resulted from non-compliance by the Company with Section 5(a)(viii) hereof. The
Company and the Underwriters acknowledge that the statements with respect to the
Selling Stockholders set forth under the heading "Principal and Selling
Stockholders" in the Prospectus have been furnished in writing by the Selling
Stockholders for inclusion in the Prospectus and constitute the only information
furnished in writing by or on behalf of the Selling Stockholders for inclusion
in the Prospectus.
The indemnity agreement in this paragraph (a) shall be in addition to
any liability which the Company and the Selling Stockholders may otherwise have.
(b) Each of the Underwriters agrees severally, but not jointly, to
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the Registration Statements, each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act and each Selling Stockholder and each person, if any, who
controls a Selling Stockholder within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several (and actions in respect thereof) to which the
Company or any such Selling Stockholder, director, officer, or controlling
person may become subject, under the Act or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in either
Registration Statement or the Prospectus or any Preliminary Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with information furnished in writing by that Underwriter to the
Company expressly for use therein; and will reimburse, as incurred, all legal or
other expenses reasonably incurred by the Company or any such Selling
Stockholder, director, officer, controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action.
The Company and the Selling Stockholders acknowledge that the statements with
respect to the public offering of the Shares set forth under the heading
"Underwriting" and the stabilization legend in the Prospectus have been
furnished by the Underwriters to the Company expressly for use therein and
constitute the only information furnished in writing by or on behalf of the
Underwriters for inclusion in the Prospectus. The indemnity agreement contained
in this subsection (b) shall be in addition to any liability which the
Underwriters may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against one or more indemnifying parties
under this Section 8, notify such indemnifying party or parties of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) of this Section 8 or to the extent
that the indemnifying party was not adversely affected by such omission. In
case any such action is brought against an indemnified party and it notifies an
indemnifying party or parties of the
23
commencement thereof, the indemnifying party or parties against which a claim is
to be made will be entitled to participate therein and, to the extent that it or
they may wish, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, that if the
-------- -------
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party has reasonably concluded that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and otherwise to participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses (other than the reasonable
costs of investigation) subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party has
employed such counsel in connection with the assumption of such different or
additional legal defenses in accordance with the proviso to the immediately
preceding sentence, (ii) the indemnifying party has not employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action, or
(iii) the indemnifying party has authorized in writing the employment of counsel
for the indemnified party at the expense of the indemnifying party; provided, in
each case, that the indemnifying party shall not be liable for the fees and
expenses of more than one counsel for all indemnified parties and the
indemnifying party shall only be liable for reasonable fees and expenses.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above in respect of any losses, claims, damages, expenses
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) (i) in such proportion as is appropriate to reflect
the relative benefits received by each of the contributing parties, on the one
hand, and the party to be indemnified, on the other hand, from the offering of
the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of each of the contributing parties, on the one hand, and the party to be
indemnified, on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. In any case where the Company and/or
any Selling Stockholder are contributing parties and the Underwriters are the
indemnified party, the relative benefits received by the Company and/or the
Selling Stockholders on the one hand, and the Underwriters, on the other, shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Shares (before deducting expenses) bear to the total
underwriting discounts received by the Underwriters hereunder, in each case as
set forth in the table on the cover page of the Prospectus. Relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Selling Stockholders or by the Underwriters, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement
24
or omission. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this paragraph (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this paragraph (d), the Underwriters shall not be required to
contribute any amount in excess of the underwriting discount applicable to the
Shares purchased by the Underwriters hereunder. The Underwriters' obligations
to contribute pursuant to this paragraph (d) are several in proportion to their
respective underwriting obligations, and not joint. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), (i) each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter and (ii) each director of the Company, each
officer of the Company who has signed each Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act and each of the Selling Stockholders and
each person, if any, who controls the Selling Stockholders within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company, subject in each case to this paragraph
(d). Any party entitled to contribution will, promptly after receipt of notice
of commencement of any action, suit or proceeding against such party in respect
to which a claim for contribution may be made against another party or parties
under this paragraph (d), notify such party or parties from whom contribution
may be sought, but the omission so to notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any other
obligation (x) it or they may have hereunder or otherwise than under this
paragraph (d) or (y) to the extent that such party or parties were not adversely
affected by such omission. The contribution agreement set forth above shall be
in addition to any liabilities which any indemnifying party may otherwise have.
9. RIGHT TO INCREASE OFFERING. At anytime during a period of 30
days from the date of the Prospectus, the Underwriters, by no less than two
business days prior notice to the Company and the Selling Stockholders may
designate a closing (which may be concurrent with, and part of the closing on
the Closing Date with respect to the Firm Shares or may be a second closing held
on a date subsequent to the Closing Date, in either case such date shall be
referred to herein as the "Option Closing Date") at which the Underwriters may
purchase all or less than all of the Additional Shares in accordance with the
provisions of this Section 9 at the purchase price per share to be paid for the
Firm Shares. In no event shall the Option Closing Date be later than 10
business days after written notice of election to purchase Additional Shares is
given.
The Company and Xxxxxxx Foundation agree, severally and not jointly,
to sell to the several Underwriters the respective numbers of Additional Shares
obtained by multiplying the number of Shares specified in such notice by a
fraction, of which the numerator is, in the case of the Company, the maximum
number of Additional Shares offered by it, and, in the case of Xxxxxxx
Foundation the maximum number of Additional Shares offered by Xxxxxxx
Foundation, and the denominator is the total number of Additional Shares
(subject to adjustment by you to eliminate fractions). Such Additional Shares
shall be purchased from the Company
25
and Xxxxxxx Foundation for the account of each Underwriter in the same
proportion as the number of Firm Shares set forth opposite the name of such
Underwriter in Column (3) of Schedule I bears to the total number of Firm Shares
(subject to adjustment by you to eliminate fractions) and may be purchased by
the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Shares.
No Additional Shares shall be sold or delivered unless the Firm Shares
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Additional Shares or any portion thereof may be surrendered and
terminated at any time upon notice by you to the Company and the Selling
Stockholders.
Except to the extent modified by this Section 9, all provisions of
this Agreement relating to the transactions contemplated to occur on the Closing
Date for the sale of the Firm Shares shall apply, mutatis mutandis, to the
Option Closing Date for the sale of the Additional Shares.
10. REPRESENTATIONS, ETC. TO SURVIVE DELIVERY. The respective
representations, warranties, agreements, covenants, indemnities and statements
of, and on behalf of, the Company and its officers, the Selling Stockholders and
the Underwriters, respectively, set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or
on behalf of the Underwriters, and will survive delivery of and payment for the
Shares.
11. TERMINATION.
(a) This Agreement (except for the provisions of Sections 6 and 8
hereof) may be terminated by the Underwriters by notice to the Company and the
Selling Stockholders in the event that the Company or either of the Selling
Stockholders has failed to comply in any respect with any of the provisions of
this Agreement required on their respective parts to be performed at or prior to
the Closing Date or the Option Closing Date, or if any of the representations or
warranties of the Company or the Selling Stockholders is not accurate in any
respect or if the covenants, agreements or conditions of, or applicable to the
Company or the Selling Stockholders herein contained has not been complied with
in any respect or satisfied within the time specified on the Closing Date or the
Option Closing Date, respectively, or if between the date hereof and the Closing
Date or the Option Closing Date:
(i) the Company or any of its Subsidiaries shall have sustained a
loss by strike, fire, flood, accident or other calamity of such a character
as to interfere materially with the conduct of the business and operations
of the Company and its Subsidiaries taken as a whole regardless of whether
or not such loss was insured;
(ii) trading in the Common Stock shall have been suspended by the
Commission or The New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or a
material limitation on such trading shall have been imposed or minimum or
maximum prices shall have been established on any such exchange or market
system;
26
(iii) a banking moratorium shall have been declared by New York
or United States authorities;
(iv) (A) there shall have been an outbreak or escalation of
hostilities between the United States and any foreign power or an outbreak
or escalation of any other insurrection or armed conflict involving the
United States or (B) there shall have been a material adverse change in
general economic, political or financial conditions or (C) there shall
have been a material adverse change in the present or prospective business
or condition (financial or other) of the Company and its Subsidiaries taken
as a whole that, in the case of (A), (B) or (C), in the Underwriters'
reasonable judgment makes it impracticable or inadvisable to make or
consummate the public offering, sale or delivery of the Company's Shares on
the terms and in the manner contemplated in the Prospectus and the
Registration Statement.
(b) Termination of this Agreement under this Section 11 or Section 12
after the Firm Shares have been purchased by the Underwriters hereunder shall be
applicable only to the Additional Shares. Termination of this Agreement shall
be without liability of any party to any other party other than as provided in
Sections 6 and 8 hereof.
12. SUBSTITUTION OF UNDERWRITERS. If one or more of the Underwriters
shall fail or refuse (otherwise than for a reason sufficient to justify the
termination of this Agreement under the provisions of Section 7 or 11 hereof) to
purchase and pay for (a) in the case of the Closing Date, the number of Firm
Shares agreed to be purchased by such Underwriter or Underwriters upon tender to
you of such Firm Shares in accordance with the terms hereof or (b) in the case
of the Option Closing Date, the number of Additional Shares agreed to be
purchased by such Underwriter or Underwriters upon tender to you of such
Additional Shares in accordance with the terms hereof, and the number of such
Shares shall not exceed 10% of the Firm Shares or Additional Shares required to
be purchased on the Closing Date or the Option Closing Date, as the case may be,
then, each of the non-defaulting Underwriters shall purchase and pay for (in
addition to the number of such Shares which it has severally agreed to purchase
hereunder) that proportion of the number of Shares which the defaulting
Underwriter or Underwriters shall have so failed or refused to purchase on such
Closing Date or Option Closing Date, as the case may be, which the number of
Shares agreed to be purchased by such non-defaulting Underwriter bears to the
aggregate number of Shares so agreed to be purchased by all such non-defaulting
Underwriters on such Closing Date or Option Closing Date, as the case may be.
In such case, you shall have the right to postpone the Closing Date or the
Option Closing Date, as the case may be, to a date not exceeding seven full
business days after the date originally fixed as such Closing Date or the Option
Closing Date, as the case may be, pursuant to the terms hereof in order that any
necessary changes in the Registration Statement, the Prospectus or any other
documents or arrangements may be made.
If one or more of the Underwriters shall fail or refuse (otherwise
than for a reason sufficient to justify the termination of this Agreement under
the provisions of Section 7 or 11 hereof) to purchase and pay for (a) in the
case of the Closing Date, the number of Firm Shares agreed to be purchased by
such Underwriter or Underwriters upon tender to you of such Firm Shares in
accordance with the terms hereof or (b) in the case of the Option Closing Date,
the
27
number of Additional Shares agreed to be purchased by such Underwriter or
Underwriters upon tender to you of such Additional Shares in accordance with the
terms hereof, and the number of such Shares shall exceed 10% of the Firm Shares
or Additional Shares required to be purchased by all the Underwriters on the
Closing Date or the Option Closing Date, as the case may be, then (unless within
48 hours after such default arrangements to your satisfaction shall have been
made for the purchase of the defaulted Shares by an Underwriter or Underwriters)
and subject to the provisions of Section 11(b) hereof, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or on
the part of the Company or the Selling Stockholders except as otherwise provided
in Sections 6 and 8 hereof. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this paragraph.
Nothing in this Section 12, and no action taken hereunder, shall relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement, including liability for losses resulting from
any termination of this Agreement caused by, or permitted as a result of, the
defaulting Underwriter's default.
13. NOTICES. All communications hereunder shall be in writing and
shall be mailed or delivered or telegraphed and confirmed by letter or
telecopied and confirmed by letter, if sent to the Underwriters, to x/x Xxxxxx
Xxxx LLC at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Department or, if sent to the Company or any Selling Stockholder, to the Company
at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000-0000, Attention: Xxxxx X.
Xxxxxx, Esq.
14. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the Company, the Selling Stockholders, and each Underwriter and the
Company's, the Selling Stockholders' and each Underwriter's respective
successors and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person, except that the
representations, warranties, indemnities and contribution agreements of the
Company and the Selling Stockholders contained in this Agreement shall also be
for the benefit of any person or persons, if any, who control any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and except that the Underwriters' indemnity and contribution agreements shall
also be for the benefit of the directors of the Company, the officers of the
Company who have signed either Registration Statement, any person or persons, if
any, who control the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, the Selling Stockholders and any person or
persons, if any, who control a Selling Stockholder within the meaning of Section
15 of the Act or Section 20 of the Exchange Act. No purchaser of Shares from
the Underwriters will be deemed a successor because of such purchase.
15. APPLICABLE LAW; JURISDICTION. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York, without
giving effect to the choice of law or conflict of law principles thereof. Each
party hereto consents to the jurisdiction of the state and federal courts
sitting in New York and agrees to accept, either directly or through an agent,
service of process of each such court.
28
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
29
If the foregoing correctly sets forth our understanding, please
indicate the Underwriters' acceptance thereof in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement between
us.
Very truly yours,
XXXXXXX CORPORATION
By:
------------------------------
Name:
Title:
SELLING STOCKHOLDERS:
XXXXXXX FOUNDATION
By:
------------------------------
Name:
Title:
THE RETIREMENT PLAN OF THE
XXXXXXX WORKS
By:
------------------------------
Name:
Title:
30
Accepted as of the date first above written:
XXXXXX XXXX LLC
By:
------------------------------
Title:
---------------------------
XXXXXXXX & COMPANY SECURITIES, INC.
By:
------------------------------
Title:
---------------------------
ABN AMRO CHICAGO CORPORATION
By:
------------------------------
Title:
---------------------------
31
SCHEDULE I
UNDERWRITERS
Underwriting Agreement dated __________, 1997
(1) (2) (3)
Number of Firm
Number of Firm Shares to be Aggregate
Shares to be Purchased from Number of Firm
Purchased from the Selling Shares to be
the Company Stockholders Purchased
-------------- -------------- --------------
Name and Address
----------------
Xxxxxx Xxxx LLC......................
---------- ---------- ----------
XxXxxxxx & Company Securities, Inc...
---------- ---------- ----------
ABN AMRO Chicago Corporation.........
---------- ---------- ----------
Total................................ 400,000 1,200,000 1,600,000
========== ========== ==========
32
SCHEDULE II
SELLING STOCKHOLDERS
(2)
(1) Maximum Number of
Name and Address of Firm Shares Additional Shares
Selling Stockholder to be Sold to be Sold
------------------- ----------- -----------------
The Retirement Plan of The Xxxxxxx Works 770,104 0
Xxxxxxx Foundation 429,896 64,484
Total..................................... 1,200,000 64,484
========= ======
33
