EXHIBIT 1.1
FTI CONSULTING, INC.
4,450,000 Common Shares
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UNDERWRITING AGREEMENT
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New York, New York
October __, 2000
ING Barings LLC
Xxxxxx Xxxxxxxxxx Xxxxx LLC
As Representatives of the Several Underwriters
Named in Schedule I Attached Hereto
00 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
FTI Consulting, Inc., a Maryland corporation (the "Company"), and the
Company's stockholders who are listed in the Company's Registration Statement
(defined below) as selling stockholders (the "Selling Stockholders") propose to
issue and sell an aggregate of 4,450,000 shares of common stock of the Company
to ING Barings LLC and Xxxxxx Xxxxxxxxxx Xxxxx LLC (the "Representatives") and
the several underwriters named in Schedule I hereto (collectively with the
Representatives, the "Underwriters" and individually, an "Underwriter," which
terms shall also include any Underwriter substituted as hereinafter provided in
Section 11). The shares of the Company's common stock, par value $.01 per share,
are hereinafter referred to as the "Common Shares," and the 4,450,000 Common
Shares to be issued and sold to the Underwriters by the Company and Selling
Stockholders are hereinafter referred to as the "Offered Shares." The public
offering price per Offered Share (the "Offering Price") and the purchase price
per Offered Share for the Offered Shares to be paid by the several Underwriters
shall be agreed upon by the Company, the Selling Stockholders and the
Representatives, acting on behalf of the several Underwriters, and such
agreement shall be set forth in a separate written instrument substantially in
the form of Exhibit A hereto (the "Price Determination Agreement"). The Price
Determination Agreement may take the form of an exchange of any standard form of
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written telecommunication among the Company, the Selling Stockholders and the
Representatives and shall specify such applicable information as is indicated in
Exhibit A hereto. The offering of the Offered Shares will be governed by this
Agreement, as supplemented by the Price Determination Agreement. From and after
the date of execution and delivery of the Price Determination Agreement, this
Agreement shall be deemed to incorporate, and, unless the context otherwise
indicates, all references contained herein to "this Agreement" and to the
phrases "herein" and "hereof" shall be deemed to include the Price Determination
Agreement.
In addition, the Underwriters, in order to cover over-allotments in the
sale of the Offered Shares, may purchase from the Company and the Selling
Stockholders within 30 business days after the Effective Date (as hereinafter
defined), for their own account for offering to the public at the Offering
Price, up to 667,500 additional Common Shares (the "Optional Shares"), upon the
terms and conditions set forth in Section 4 hereof. Certain of the Selling
Stockholders have executed and delivered a Power of Attorney and a Custody
Agreement in the form attached hereto as Exhibit B (collectively, the "Agreement
and Power of Attorney") pursuant to which those Selling Stockholders have placed
their portion of the Offered Shares and Optional Shares in custody and appointed
the person or persons designated therein with authority to execute and deliver
this Agreement on behalf of the Selling Stockholders and to take certain other
actions with respect thereto and hereto. The Offered Shares and the Optional
Shares are hereinafter collectively referred to as the "Shares." The Company and
the Selling Stockholders, intending to be legally bound hereby, confirm their
respective agreements with each of the Underwriters as follows:
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with, each
of the several Underwriters that:
(i) The Company has prepared in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"),
and the rules, regulations, releases and instructions (the
"Regulations") of the Securities and Exchange Commission (the
"SEC") under the Act in effect at all applicable times and has
filed with the SEC a registration statement on Form S-2 (File No.
333-45278) and one or more amendments thereto registering the
Shares under the Act. If the Company elects to rely on Rule 462(b)
of the Regulations to register a portion of the Shares, a
registration statement on Form S-2 relating to the Shares (the
"Rule 462 registration statement") has been or will be prepared by
the Company under the Act and the Regulations and has been or will
be filed with the SEC. Any preliminary prospectus included in such
registration statement or filed with the SEC pursuant to Rule
424(a) of the Regulations is hereinafter called a "Preliminary
Prospectus." The various parts of such initial registration
statement, including all exhibits thereto and the information
contained in the form of final prospectus filed with the SEC
pursuant to Rule 424(b) of the Regulations in
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accordance with Section 5(a) of this Agreement and deemed by virtue
of Rule 430A of the Regulations to be part of the registration
statement at the time it was declared effective, each as amended at
the time the registration statement became effective, and any Rule
462 registration statement at the time it becomes or became
effective, are hereinafter collectively called the "Registration
Statement." The final prospectus in the form included in the
Registration Statement and any Rule 462 registration statement or
first filed with the SEC pursuant to Rule 424(b) of the Regulations
and any amendments or supplements thereto is hereinafter
collectively called the "Prospectus."
(ii) The Registration Statement and any Rule 462 registration
statement have become effective under the Act as of their
respective Effective Date (as defined below), and the SEC has not
issued any stop order suspending the effectiveness of such
Registration Statement or Rule 462 registration statement or
preventing or suspending the use of the Preliminary Prospectus nor,
to the knowledge of the Company, has the SEC instituted,
contemplated or threatened to institute proceedings with respect to
such an order. No stop order suspending the sale of the Shares in
any jurisdiction designated by the Representatives has been issued,
and no proceedings for that purpose, to the knowledge of the
Company, have been instituted or are contemplated or threatened.
The Company has complied in all material respects with any request
of the SEC, or any state securities commission in a state
designated by the Representatives for additional information to be
included in the Registration Statement or Prospectus or otherwise.
Each Preliminary Prospectus conformed to the Act and the
Regulations as of its date in all material respects and did not as
of its date contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading, except the foregoing shall
not apply to statements in or omissions from any Preliminary
Prospectus in reliance upon and in conformity with information
furnished to the Company in writing by or on behalf of any
Underwriter through the Representatives expressly for use therein.
The Registration Statement and any Rule 462 registration statement
on the date on which it is declared effective by the SEC (the
"Effective Date") conformed, and any post-effective amendment
thereof on the date it shall become effective, and the Prospectus
at the time it is filed with the SEC pursuant to Rule 424(b) and on
the Closing Date (as defined in Section 3 hereof) and any Option
Closing Date (as defined in Section 4(b) hereof), will conform in
all material respects to the requirements of the Act and the
Regulations, and neither the Registration Statement, any Rule 462
registration statement, any post-effective amendment thereof nor
the Prospectus will, on any of such respective dates, contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, except that this representation
and warranty
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does not apply to statements in or omissions from the Registration
Statement, any Rule 462 registration statement or the Prospectus
made in reliance upon and in conformity with information furnished
to the Company in writing by or on behalf of any Underwriter
through the Representatives expressly for use therein.
(iii) Each of the Company and the Subsidiaries (as defined
herein) is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation
with all necessary power and authority, corporate and other, and
all required licenses, permits, certifications, registrations,
approvals, consents and franchises, to own or lease and operate its
properties and to conduct its business as described in the
Prospectus. The Company has full power and authority, corporate and
other, to execute, deliver and perform this Agreement. Each of the
Company and the Subsidiaries is duly qualified to do business as a
foreign corporation and is in good standing in all jurisdictions in
which such qualification is required, except where the failure so
to qualify would not have a material adverse effect on the general
affairs, material properties, condition (financial or otherwise),
results of operations, stockholders' equity, business or prospects
of the Company and the Subsidiaries taken as a whole. The Company
does not own any stock or other equity interest in any corporation,
partnership, joint venture or other entity other than as listed on
Exhibit 21.0 of the Company's Annual Report on Form 10-K for the
fiscal year end of December 31, 1999 (each a "Subsidiary" and
collectively, the "Subsidiaries"). Except as set forth in the
Credit Agreement dated February 4, 2000, and amended April 19,
2000, and the Investment and Loan Agreement dated February 4, 2000,
no Subsidiary is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making other
distributions on such Subsidiary's capital stock, from repaying to
the Company any loans or advances to such Subsidiary or from
transferring any of such Subsidiary's property or assets to the
Company or any other Subsidiary.
(iv) All of the issued shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are
fully paid and non-assessable and are owned beneficially, by the
Company free and clear of all liens, security interests, pledges,
charges, encumbrances, stockholders' agreements, voting trusts,
equities or claims of any nature whatsoever except for the security
interests created under the Credit Agreement dated as of February
4, 2000, by and among the Company and its subsidiaries named
therein and the agents and lenders named therein, as amended, and
any documents or instruments executed in connection therewith
(collectively, the "Loan Documents").
(v) This Agreement has been duly authorized, executed and
delivered by the Company and, assuming due execution by the
Representatives, constitutes the legal, valid and binding
obligation of the Company, enforceable against the
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Company in accordance with its terms, subject, as to enforcement,
to applicable bankruptcy, insolvency and moratorium laws and other
laws relating to or affecting the enforcement of creditors' rights
generally and to general equitable principles and except as the
enforceability of rights to indemnity and contribution hereunder
may be limited by federal or state securities laws or principles of
public policy underlying such laws.
(vi) The issue and sale of the Shares to be issued and sold by
the Company and the execution, delivery and performance of this
Agreement by the Company does not and will not, with or without the
giving of notice or the lapse of time, or both, (A) conflict with
any terms or provisions of the Charter or By-laws, as amended to
the date hereof of the Company or any of the Subsidiaries; (B)
result in a breach of, constitute a default under, result in the
termination or modification of or result in the creation or
imposition of any lien, security interest, charge or encumbrance
upon any of the material properties of the Company or any of the
Subsidiaries pursuant to any indenture, mortgage, deed of trust,
contract, commitment or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which any of
the properties of the Company or any of the Subsidiaries are bound
or affected; (C) violate any law, rule, regulation, judgment, order
or decree of any government or governmental agency, instrumentality
or court, domestic or foreign, having jurisdiction over the Company
or any of the Subsidiaries or any of the material properties or
business of the Company or any of the Subsidiaries or (D) result in
a breach, termination or lapse of the power and authority of the
Company or any of the Subsidiaries to own or lease and operate its
material properties and conduct its business as described in the
Prospectus.
(vii) At the date or dates indicated in the Prospectus, the
Company had, based on the assumptions stated and footnotes included
in the Prospectus, the capitalization set forth under the caption
"Capitalization" in the Prospectus and will have the pro forma as
adjusted capitalization set forth under the caption
"Capitalization" in the Prospectus. On the Effective Date, the
Closing Date and any Option Closing Date, there will be no options
or warrants for the purchase of, other outstanding rights to
purchase, agreements or obligations to issue or agreements or other
rights to convert or exchange any obligation or security into,
capital stock of the Company or any of the Subsidiaries or
securities convertible into or exchangeable for capital stock of
the Company or any such Subsidiary, except as described in the
Registration Statement or the Prospectus with respect to the (A)
options and awards that have been granted or are available for
grant to employees, directors and certain others to purchase Common
Shares (the "Employee Options"); (B) the Over-allotment Option
granted hereunder; and (C) warrants described in the Registration
Statement (the "Warrants").
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(viii) The outstanding Common Shares have been duly authorized
and are validly issued, fully paid and nonassessable and the
Employee Options and Warrants have been duly authorized and validly
issued and are legal, valid and binding obligations enforceable
against the Company in accordance with the terms thereof, except as
the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other laws affecting the enforcement
of creditors' rights or contractual obligations generally. The
Common Shares issuable pursuant to the Employee Options and
Warrants when issued in accordance with the terms thereof, will be
duly authorized, validly issued, fully paid and nonassessable. None
of such outstanding Common Shares, Employee Options, Warrants or
shares of capital stock of each Subsidiary were, and none of such
issuable Common Shares will be, issued in violation of any
preemptive rights of any security holder of the Company or any
Subsidiary that have not been waived. The Company has reserved a
sufficient number of Common Shares for issuance pursuant to the
Employee Options and Warrants. The holders of the outstanding
Common Shares are not subject to personal liability solely by
reason of being such holders, and the holders of the Common Shares
issuable pursuant to the Employee Options or Warrants will not be
subject to personal liability solely by reason of being such
holders. The offers and sales of the outstanding Common Shares,
Employee Options, Warrants and the shares of capital stock of each
Subsidiary were, and the issuance of the Common Shares pursuant to
the Employee Options and Warrants will be, made in conformity with
applicable registration requirements or exemptions therefrom under
federal and applicable state securities laws.
(ix) The issuance and sale of the Shares by the Company have
been duly authorized and, when the Shares have been duly delivered
against payment therefor as contemplated by this Agreement, the
Shares will be validly issued, fully paid and nonassessable, and
the holders thereof will not be subject to personal liability
solely by reason of being such holders. None of the Shares will be
issued in violation of any preemptive rights of any stockholder of
the Company. The certificates representing the Shares are in proper
legal form under, and conform in all respects to the requirements
of, the Maryland General Corporation Law, as amended (the "MGCL").
Neither the filing of the Registration Statement nor the offering
or sale of the Shares as contemplated by this Agreement gives any
security holder of the Company, other than the Selling Stockholders
with regard to the Common Shares included in the Registration
Statement, any rights, other than those which have been waived, for
or relating to the registration of any Common Shares or other
security of the Company.
(x) No consent, approval, authorization, order,
registration, license or permit of any court, government,
governmental agency, instrumentality or other
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regulatory body or official is required for the valid
authorization, issuance, sale and delivery by the Company of any of
the Shares, or for the execution, delivery or performance by the
Company of this Agreement, except such as may be required for the
registration of the Shares under the Act, the Regulations and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
which consent, approval and authorization have been obtained, and
for compliance with the applicable state securities or Blue Sky
laws, or the By-laws, rules and other pronouncements of the
National Association of Securities Dealers, Inc. ("NASD"). Upon the
effectiveness of the Registration Statement, the Common Shares will
be registered pursuant to Section 12(g) of the Exchange Act, and
will be listed on the American Stock Exchange ("ASE"). The Company
has taken no action designed to, or likely to, have the effect of
terminating the registration of the Common Shares from the ASE, nor
has the Company received any notification that the SEC or the NASD
is contemplating terminating such registration or listing.
(xi) The statements in the Registration Statement and the
Prospectus, insofar as they are descriptions of or references to
statutes, legal and governmental proceedings or contracts,
agreements or other documents, are accurate in all material
respects and present or summarize fairly, in all material respects,
the information required to be disclosed under the Act or the
Regulations, and there are no contracts, agreements or other
documents required to be described or referred to in the
Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement under the Act or the Regulations that
have not been so described, referred to or filed, as required.
(xii) The consolidated financial statements of the Company,
its consolidated subsidiaries and Xxxxxxxx & Xxxxx, LLC ("P&M")
(including the notes thereto) filed as part of the Preliminary
Prospectus, the Prospectus and the Registration Statement present
fairly, in all material respects, the financial position of the
Company, its consolidated subsidiaries, on a consolidated basis,
and P&M, as of the respective dates thereof, and the results of
operations and cash flows of the Company, its consolidated
subsidiaries, on a consolidated basis, and P&M, for the respective
periods indicated therein, all in conformity with generally
accepted accounting principles consistently applied. The supporting
schedules included in the Registration Statement fairly state in
all material respects the information required to be stated therein
in relation to the basic financial statements taken as a whole. The
financial information included in the Prospectus under the captions
"Summary" and "Selected Financial Data" presents fairly the
information shown therein and has been compiled on a basis
consistent with that of the audited financial statements included
in the Registration Statement. No other financial statements or
schedules of any Subsidiary are required by the Act or the
Regulations to be included in the Registration Statement or the
Prospectus.
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(xiii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has not been (A) any material
adverse change, including, whether or not insured against, any
material loss or damage to any material assets, or development
involving a prospective material adverse change, in the general
affairs, properties, assets, management, condition (financial or
otherwise), results of operations, stockholders' equity, business
or prospects of the Company or any of the Subsidiaries taken as a
whole, (B) any transaction entered into other than in the ordinary
course of business consistent with past practice by the Company or
any of the Subsidiaries that is material to the Company and the
Subsidiaries taken as a whole, (C) any dividend or distribution of
any kind declared, paid or made by the Company or any of the
Subsidiaries on their respective capital stock, (D) any liabilities
or obligations, direct or indirect, incurred by the Company or any
of the Subsidiaries that are material to the Company and the
Subsidiaries other than liabilities incurred in the ordinary course
of the Company's business consistent with past practice or (E) any
material change in the short-term debt or long-term debt of the
Company or any of the Subsidiaries. Neither the Company nor any of
the Subsidiaries has any contingent liabilities or obligations that
are material and that are not disclosed in the Prospectus.
(xiv) The Company has not distributed and, prior to the later
to occur of the Closing Date, the Option Closing Date or the
completion of the distribution of the Shares, will not distribute
any offering material in connection with the offering and sale of
the Shares other than the Registration Statement, the Preliminary
Prospectus, the Prospectus and other materials, if any, permitted
by the Act and the Regulations.
(xv) The Company and each of the Subsidiaries has filed with
the appropriate federal state and local governmental agencies, and
all foreign countries and political subdivisions thereof, all
material tax returns that are required to be filed or has duly
obtained extensions of time for the filing thereof and has paid all
taxes shown on such returns and all material assessments received
by it to the extent that the same have become due. The Company and
each of the Subsidiaries has not executed or filed with any taxing
authority, foreign or domestic, any agreement extending the period
for assessment or collection of any income or other taxes, is not a
party to any pending action or proceeding by any foreign or
domestic governmental agencies for the assessment or collection of
taxes, and no claims for assessment or collection of taxes have
been asserted against the Company or any of the Subsidiaries that
would materially adversely affect the general affairs, assets,
material properties, condition (financial or otherwise), results of
operations, stockholders' equity, business or prospects of the
Company and the Subsidiaries taken as a whole.
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(xvi) To the best of the Company's knowledge, Ernst & Young
LLP, which has certified certain financial statements of the
Company, its consolidated subsidiaries and P&M, included in the
Registration Statement and the Prospectus, are independent public
accountants as required by the Act, the Exchange Act and the
Regulations. The statements included in the Registration Statement
with respect to Ernst & Young LLP pursuant to Rule 509 of
Regulation S-K are true and correct in all material respects.
(xvii) Neither the Company nor any of the Subsidiaries is, or
with the giving of notice or the passage of time or both would be,
in violation of, or in default under, any of the terms or
provisions of (A) its Charter or By-laws, as amended to the date
hereof, or (B) except to the extent such action would not have a
material adverse effect on the general affairs, material
properties, assets, condition (financial or otherwise), results of
operations, stockholders' equity, business or prospects of the
Company and the Subsidiaries taken as a whole, (1) any indenture,
mortgage, deed of trust, contract, loan agreement, commitment or
other agreement or instrument to which it is a party or by which it
or any of its material properties is bound or affected; (2) any
law, rule, regulation, judgment, order or decree of any government
or governmental agency, instrumentality or court, domestic or
foreign, having jurisdiction over it or any of its material
properties or business or (3) any license, permit, certification,
registration, approval, consent or franchise referred to in
subsection (iii) of this Section 1(a).
(xviii) Other than as disclosed in the Prospectus, there are no
material claims, actions, suits, proceedings, arbitrations,
investigations or inquiries pending before or, to the knowledge of
the Company, threatened or contemplated by, any governmental
agency, instrumentality, court or tribunal, domestic or foreign, or
before any private arbitration tribunal, relating to or affecting
the Company or any of the Subsidiaries or any of their respective
material properties or business that might affect the issuance or
validity of any of the Shares or the validity of any of the
outstanding Common Shares, or that, if determined adversely to the
Company, would, in any case or in the aggregate, result in any
material adverse change in the general affairs, material
properties, assets, condition (financial or otherwise), results of
operations, stockholders' equity, business or prospects of the
Company and the Subsidiaries taken as a whole; nor, to the
knowledge of the Company, is there any reasonable basis for any
such material claim, action, suit, proceeding, arbitration,
investigation or inquiry. Other than as disclosed in the
Prospectus, there are no outstanding orders, judgments or decrees
of any court, governmental agency, instrumentality or other
tribunal enjoining the Company or any Subsidiary from, or requiring
the Company to take or refrain from taking, any action, or to which
the Company or
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any Subsidiary, or their respective material properties, assets or
business is bound or subject.
(xix) Except as disclosed in the Prospectus, the Company and
each of the Subsidiaries owns, or possesses adequate rights to use,
all patents, patent applications, trademarks, trademark
registrations, applications for trademark registration, trade
names, service marks, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential technology, information, systems,
design methodologies and devices or procedures developed or derived
from the Company's or a Subsidiary's business), trade secrets,
confidential information, processes and formulations necessary for
or used in the conduct of its business as described in the
Prospectus (collectively, the "Intellectual Property") that, if not
so owned, or if rights to use were not so possessed, would
materially adversely affect the general affairs, material
properties, condition (financial or otherwise), results of
operations, stockholders' equity, business or prospects of the
Company and the Subsidiaries; neither the Company nor any of the
Subsidiaries has knowingly infringed, is infringing or has received
any notice of conflict with the asserted rights of others with
respect to the Intellectual Property that, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially adversely affect the general affairs,
material properties, condition (financial or otherwise), results of
operations, stockholders' equity, business or prospects of the
Company and the Subsidiaries taken as a whole; and, to the
knowledge of the Company, no others have infringed upon or are in
conflict with its Intellectual Property.
(xx) The Company and each of the Subsidiaries has good and
marketable title to all personal property (tangible and intangible)
described in the Prospectus as being owned by it, free and clear of
all liens, security interests, charges or encumbrances, except (A)
those as are described in the Prospectus, (B) liens arising in the
ordinary course of the Company's business consistent with past
practice since the date of the latest balance sheet in the
Prospectus, (C) purchase money security interests, conditional sale
contracts, capitalized leases and other title retention or deferred
purchase devices arising in the ordinary course of the Company's
business consistent with past practice, (D) deposits or pledges
made in connection with workers' compensation or unemployment
insurance, (E) liens arising by operation of law to secure
landlords and lessors under lease agreements, (F) liens to secure
claims for labor, material or supplies to the extent payment
therefor shall not at the time be required to be made, (G) liens
for current taxes not yet due or for taxes being contested in good
faith and (H) those as do not materially affect the value or the
transferability of such property and do not interfere in any
material respect with the use made, or proposed to be made, of such
property by the Company or such Subsidiary. The Company and each of
the
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Subsidiaries has adequately insured with insurers of recognized financial
responsibility its personal property against loss or damage by fire or
other casualty and maintains, in adequate amounts, insurance against such
other risks as are prudent and customary in the businesses in which they
are engaged. The Company does not own any real property, and all real
property used or leased by the Company or any of the Subsidiaries, as
described in the Prospectus (collectively, the "Premises"), is held by the
Company or such Subsidiary under a valid, subsisting and enforceable lease,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other laws affecting the enforcement of
creditors' rights or contractual obligations generally. To the knowledge of
the Company, the Premises, and all operations conducted thereon, are now
and, since the Company or such Subsidiary began to use such Premises,
always have been in compliance in all material respects with all federal,
state and local statutes, ordinances, regulations, rules, standards and
requirements of common law concerning or relating to industrial hygiene and
the protection of health and the environment (collectively, "the
Environmental Laws"), except to the extent that any failure to be in such
compliance would not materially adversely affect the general affairs,
material properties, assets, condition (financial or otherwise), results of
operations, stockholders' equity, business or prospects of the Company and
the Subsidiaries taken as a whole. To the knowledge of the Company, there
have been no releases of hazardous substances on, beneath or arising from
the Premises since the Company or such Subsidiary began to use such
Premises that would give rise to liability, the imposition of a statutory
lien or require a "Response," "Removal" or "Remedial Action," as defined
herein, under any of the Environmental Laws, and that would materially
adversely affect the general affairs, material properties, assets,
condition (financial or otherwise), results of operations, stockholders'
equity, business or prospects of the Company and the Subsidiaries taken as
a whole. Neither the Company nor any of the Subsidiaries has received
written notice, and does not have actual knowledge, of any claim,
investigation, regulatory action, suit or other action instituted or
threatened against it or the Premises relating to any of the Environmental
Laws. Neither the Company nor any of the Subsidiaries has received any
notice of material violation, citation, complaint, order, directive,
request for information or response thereto, notice letter, demand letter
or compliance schedule to or from any governmental or regulatory agency
arising out of or in connection with Hazardous Substances (as defined by
applicable Environmental Laws) on, beneath, arising from or generated at
the Premises. As used in this subsection, the terms "Response," "Removal"
and "Remedial Action" shall have the respective meanings assigned to such
terms under Sections 101 (23)-101 (25) of the Comprehensive Environmental
Response, Compensation and Liability Act, as amended by the Superfund
Amendments and Reauthorization Act.
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(xxi) Each of the Company and the Subsidiaries maintains a system
of internal accounting controls sufficient to provide reasonable assurances
that: (A) transactions are executed in accordance with management's general
or specific authorization; (B) transactions are recorded as necessary in
order to permit preparation of the Company's consolidated financial
statements in accordance with generally accepted accounting principles and
to maintain accountability for assets; (C) access to assets is permitted
only in accordance with management's general or specific authorization; and
(D) the recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences.
(xxii) All offers and sales of the Company's capital stock prior to
the date hereof were at all relevant times duly registered under the Act or
exempt from the registration requirements of the Act and were duly
registered or the subject of an available exemption from the registration
requirements of applicable state securities or blue sky laws.
(xxiii) Each material contract or other material instrument (however
characterized or described) to which the Company or any of the Subsidiaries
is a party or by which any of its properties or business is bound or
affected and to which reference has been made in the Prospectus or which
has been filed as an exhibit to the Registration Statement has been duly
and validly executed by the Company or such Subsidiary and, to the
knowledge of the Company, by the other parties thereto. Except as described
in the Prospectus, each such contract or other instrument is in full force
and effect in all material respects and is enforceable against the parties
thereto in all material respects in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors' rights
or contractual obligations generally, and neither the Company nor such
Subsidiary is and, to the knowledge of the Company, no other party is in
material default thereunder and no event has occurred that, with the lapse
of time or the giving of notice, or both, would constitute a material
default thereunder.
(xxiv) All employee benefit plan, profit sharing plan, employee
pension benefit plan or employee welfare benefit plan or deferred
compensation arrangements (collectively, "Plans") that are subject to the
provisions of the Employee Retirement Income Security Act of 1974, as
amended, or the rules and regulations thereunder ("ERISA") are and have
been at all times since their establishment, in compliance with ERISA in
all material respects and, to the extent required by the Internal Revenue
Code of 1986, as amended (the "Code"), in compliance with the Code in all
material respects. Neither the Company nor any Subsidiary has sponsored any
employee pension benefit plan that is subject to Part 3 of Subtitle B of
Title I of ERISA or any defined benefit plan or
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multiemployer plan. Neither the Company nor any Subsidiary has maintained
retired life and retired health insurance plans that are employee welfare
benefit plans providing for continuing benefit or coverage for any employee
or any beneficiary of any employee after such employee's termination of
employment, except as required by Section 4980B of the Code. To the
knowledge of the Company, no fiduciary or other party in interest with
respect to any of the Plans has caused any of such Plans to engage in a
prohibited transaction as defined in Section 406 of ERISA. As used in this
subsection, the terms "defined benefit plan," "employee benefit plan,"
"employee pension benefit plan," "employee welfare benefit plan,"
"fiduciary" and "multiemployer plan" shall have the respective meanings
assigned to such terms in Section 3 of ERISA.
(xxv) No material labor dispute exists with the employees of the
Company or any of the Subsidiaries and, to the knowledge of the Company, no
such labor dispute is imminent.
(xxvi) Except as disclosed in the Prospectus, the Company has not
incurred any liability for any finder's fees or similar payments in
connection with the transactions contemplated herein.
(xxvii) Except as described in the Prospectus or as entered into in
the ordinary course of the Company's business consistent with past
practice, neither the Company nor any Subsidiary is a party to, nor is it
bound by, any agreement pursuant to which royalties, honoraria or fees are
payable by the Company or such Subsidiary to any person by reason of the
ownership or use of any Intellectual Property that is material to the
business of the Company or such Subsidiary.
(xxviii) The Company is familiar with the Investment Company Act of
1940, as amended (the "1940 Act"), and the rules and regulations
thereunder, and has in the past conducted, and intends in the future to
continue to conduct, its affairs in such a manner to ensure that it will
not become an "investment company" within the meaning of the 1940 Act and
such rules and regulations.
(xxix) Neither the Company nor, to the knowledge of the Company,
any of its officers, directors or affiliates has (A) taken, directly or
indirectly, any action designed to cause or result in, or that has
constituted or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares or (B) since the filing of
the Registration Statement (1) sold, bid for, purchased or paid anyone any
compensation for soliciting purchases of, the Shares or (2) paid or agreed
to pay to any person any compensation for soliciting another to purchase
any other securities of the Company.
-13-
(xxx) The Company has obtained for the benefit of the Company and
the Underwriters from the Selling Stockholders and each of the Company's
directors and executive officers listed on Schedule II hereto a written
agreement ("lock-up agreement"), in the form of Exhibit C hereto, that for
a period of 90 days from the Effective Date such Selling Stockholders,
director or executive officer will not, without the prior written consent
of the Representatives, offer, sell, contract to sell, grant any option for
the sale of, or otherwise dispose of, directly or indirectly, any shares of
Common Stock.
(xxxi) Neither the Company, any of the Subsidiaries, nor, to the
knowledge of the Company, any director, officer, employee or other person
associated with or acting on behalf of the Company or any Subsidiary has,
directly or indirectly: used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity; made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political
parties or campaigns from corporate funds; violated any provision of the
Foreign Corrupt Practices Act of 1977, as amended; or made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(xxxii) The Company has registered with Network Solutions, Inc. the
Internet domain names xxx.xxxxxxxxxxxxx.xxx and xxx.xxxxxxxxxx.xxx and has
---------------------
administrative control over these sites. The Company has no knowledge of a
registered trademark held by a third party that may be used to prevent the
Company from using these domain names.
(xxxiii) The Company and each of the Subsidiaries are insured by
recognized, financially sound and reputable institutions with policies in
such amounts and with such deductibles and covering such risks as are
generally deemed adequate and customary for their business including, but
not limited to, policies covering real and personal property owned or
leased by the Company and the Subsidiaries against theft, damage,
destruction, acts of vandalism and earthquakes, general liability and
directors and officers liability, all of which insurance is in full force
and effect. The Company has no reason to believe that it or the
Subsidiaries will not be able to (i) renew their existing insurance
coverage as and when such policies expire or (ii) obtain comparable
coverage from similar institutions as may be necessary or appropriate to
conduct their business as now conducted and at a cost that would not result
in a material adverse effect on the Company and the Subsidiaries taken as a
whole or adversely affect the ability of the Company to perform its
obligations under this Agreement. Neither of the Company nor any of the
Subsidiaries has been denied any insurance coverage which it has sought or
for which it has applied.
-14-
Any certificate signed by any officer of the Company in such capacity and
delivered to the Representatives or to counsel for the Underwriters pursuant to
this Agreement shall be deemed a representation and warranty by the Company to
the several Underwriters as to the matters covered thereby.
(b) Representations and Warranties of the Selling Stockholders. Each of
the Selling Stockholders severally represents and warrants to each of the
several Underwriters and the Company that:
(i) Each of the Selling Stockholders that is a business entity is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization with all necessary power and authority,
corporate and otherwise, and all required licenses, permits,
certifications, registrations, approvals, consents and franchises, to
conduct its business and enter into this Agreement.
(ii) Such Selling Stockholder has full right, power (corporate and
other) and authority to enter into this Agreement and the Agreement and
Power of Attorney and to sell, assign, transfer and deliver to the
Underwriters the Shares to be sold by the Selling Stockholder hereunder;
and the execution and delivery of this Agreement and the Agreement and
Power of Attorney have been duly authorized by all necessary action of the
Selling Stockholder.
(iii) Such Selling Stockholder has duly executed and delivered this
Agreement and the Agreement and Power of Attorney and, assuming due
execution of this Agreement by the Representatives of the Underwriters,
this Agreement and the Agreement and Power of Attorney constitute the valid
and binding agreements of the Selling Stockholder enforceable against the
Selling Stockholder in accordance with its terms, subject, as to
enforcement, to applicable bankruptcy, insolvency, reorganization and
moratorium laws and other laws relating to or affecting the enforcement of
creditors' rights generally and to general equitable principles and, with
respect to this Agreement and the Agreement and Power of Attorney, except
as the enforceability of rights to indemnity and contribution under this
Agreement may be limited under applicable securities laws or the public
policy underlying such laws.
(iv) No consent, approval, authorization, order or declaration of or
form, or registration, qualification or filing with, any court or
governmental agency or body is required for the sale of the Shares to be
sold by such Selling Stockholder or the consummation of the transactions
contemplated by this Agreement and the Agreement and Power of Attorney,
except the registration of such Shares under the Act (which, if the
Registration Statement is not effective as of the time of execution hereof,
shall be obtained as provided in this Agreement)
-15-
and such as may be required under state securities or Blue Sky laws in
connection with the offer, sale and distribution of such Shares by the
Underwriters.
(v) The sale of the Shares to be sold by such Selling Stockholder
and the performance of this Agreement and the Agreement and the Power of
Attorney and the consummation of the transactions therein and herein
contemplated will not conflict with, or, with or without the giving of
notice or the passage of time or both, result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Selling Stockholder (or any of its
subsidiaries if the Selling Stockholder is a business entity) is a party or
to which any of their respective material properties or assets is subject,
nor will such action conflict with or violate: (i) any provision of the
charter documents or by-laws of the Selling Stockholder or governing
instruments of any of its subsidiaries if the Selling Stockholder is a
business entity; or (ii) any statute, rule or regulation or any order,
judgement or decree of any court or governmental agency or body having
jurisdiction over the Selling Stockholder or any of the Selling
Stockholder's material properties or assets.
(vi) Such Selling Stockholder has, and immediately prior to the
Closing Date or Option Closing Date, as the case may be (as defined in
Section 4 hereof), the Selling Stockholder will have, good and valid title
to the Shares to be sold by the Selling Stockholder hereunder, free and
clear of all liens, security interests, pledges, charges, encumbrances,
defects, shareholders' agreements, voting trusts, equities or claims of any
nature whatsoever (other than pursuant to this Agreement and the Agreement
and Power of Attorney); and, upon delivery of such Shares against payment
therefor as provided herein, good and valid title to such Shares, free and
clear of all liens, security interests, pledges, charges, encumbrances,
defects, stockholders' agreements, voting trusts, equities or claims of any
nature whatsoever, will pass to the several Underwriters.
(vii) Neither such Selling Stockholder nor any of its officers or
directors (if applicable) or affiliates has (A) taken, directly or
indirectly, any action designed to cause or result in, or that has
constituted or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares or (B) since the filing of
the Registration Statement (1) sold, bid for, purchased or paid anyone any
compensation for soliciting purchases of, the Shares or (2) paid or agreed
to pay to any person any compensation for soliciting another to purchase
any other securities of the Company.
(viii) Certificates in negotiable form for the Shares to be sold
hereunder and warrants to be exercised by such Selling Stockholder have
been placed in
-16-
custody, for the purpose of making delivery of such Shares under this
Agreement, under the Agreement and Power of Attorney which appoints
Xxxxxxxx X. Xxxxxx as custodian (the "Custodian") for the Selling
Stockholder. Such Selling Stockholder agrees that the Shares
represented by the certificates and warrants held in custody for it
under the Agreement and Power of Attorney are for the benefit of and
coupled with and subject to the interest hereunder of the Custodian,
the Underwriters and the Company, that the arrangements made by the
Selling Stockholder for such custody and the appointment of the
Custodian by the Selling Stockholder are irrevocable, and that the
obligations of the Selling Stockholder hereunder shall not be
terminated by operation of law, the liquidation of the Selling
Stockholder or any other event, and after any such liquidation or
event, certificates for the Shares shall be delivered by the Custodian
in accordance with the terms and conditions of this Agreement and any
actions taken by the Custodian pursuant to the Agreement and Power of
Attorney shall be as valid as if such liquidation or other event had
not occurred, regardless of whether or not the Custodian shall have
received notice thereof.
In order to document the Underwriters' compliance with the reporting
and withholding provisions of the Code, with respect to the transactions
herein contemplated, such Selling Stockholder agrees to deliver to the
Representatives prior to or at the Closing Date, a properly completed and
executed United States Treasury Department Form W-8 or other applicable
form or statement specified by Treasury Department regulations in lieu
thereof.
2. Purchase and Sale of Offered Shares. On the basis of the
representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company and Selling
Stockholders shall sell the Offered Shares to the several Underwriters at the
Offering Price less the underwriting discount shown on the cover page of the
Prospectus (the "Underwriting Discount"), and the Underwriters, severally and
not jointly, shall purchase from the Company on a firm commitment basis, at the
Offering Price less the Underwriting Discount, the respective Offered Shares set
forth opposite their names on Schedule I hereto. In making this Agreement, each
Underwriter is contracting severally, and not jointly, and except as provided in
Sections 4 and 11 hereof, the agreement of each Underwriter is to purchase only
that number of Offered Shares specified with respect to that Underwriter in
Schedule I. The Underwriters shall offer the Offered Shares to the public as set
forth in the Prospectus.
3. Payment and Delivery. Payment for the Offered Shares shall be made to
the Company and the Custodian by certified or official bank check payable to
order in New York Clearing House funds, at the offices of ING Barings LLC, 00
Xxxx 00/xx/ Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or at such other location as
shall be agreed upon by the Company, the Custodian and the Representatives, or
in immediately available funds wired to such account as the Company and the
Custodian may specify with all costs and expenses incurred by the
-17-
Underwriters in connection with such settlement in immediately available funds
(including, but not limited to, interest or cost of funds expenses) to be borne
by the Company and Selling Shareholders, against delivery of the Offered Shares
to the Representatives at the offices of The Depository Trust Company, 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, for the respective accounts of the
Underwriters. Such payment and delivery will be made at 10:00 A.M., New York
time, on the third (or, if the Offered Shares are priced, as contemplated by
Rule 15c6-1(c) under the Exchange Act after 4:30 P.M. New York time, the fourth)
business day after the date of this Agreement or at such other time and date not
later than five business days thereafter as the Representatives and the Company
shall agree upon. Such time and date are referred to herein as the "Closing
Date." The certificates representing the Offered Shares to be sold and delivered
will be in such denominations and registered in such names as the
Representatives request not less than two full business days prior to the
Closing Date, and will be made available to the Representatives for inspection,
checking and packaging at the office of The Depository Trust Company in New
York, New York or at such other location in New York, New York as is specified
by the Representatives, not less than one full business day prior to the Closing
Date.
4. Option to Purchase Optional Shares.
(a) For the purposes of covering any over-allotments in connection
with the distribution and sale of the Offered Shares as contemplated by the
Prospectus, subject to the terms and conditions herein set forth, the
several Underwriters are hereby granted an option by the Company and
Selling Stockholders to purchase all or any part of the Optional Shares
from the Company and Selling Stockholders (the "Over-allotment Option") as
set forth in the Registration Statement and as enumerated on Schedule III
attached hereto. The purchase price to be paid for the Optional Shares
shall be the Offering Price less the Underwriting Discount. The Over-
allotment Option granted hereby may be exercised by the Representatives on
behalf of the several Underwriters as to all or any part of the Optional
Shares at any time (but not more than once) within 30 business days after
the Effective Date. No Underwriter shall be under any obligation to
purchase any Optional Shares prior to an exercise of the Over-allotment
Option. In the event that the several Underwriters purchase less than all
of the Optional Shares, the number of Optional Shares purchased shall be
divided pro rata among those entities listed on Schedule III.
(b) The Over-allotment Option granted hereby may be exercised by the
Representatives on behalf of the several Underwriters by giving notice to
the Company by a letter sent by registered or certified mail, postage
prepaid, telex, telegraph, telegram or facsimile (such notice to be
effective when sent), addressed as provided in Section 13 hereof, setting
forth the number of Optional Shares to be purchased, the date and time for
delivery of and payment for the Optional Shares and stating that the
Optional Shares referred to therein are to be used for the purpose of
covering over-allotments in connection with the distribution and sale of
the Offered Shares. If such notice is given prior to the Closing Date, the
date set forth therein for such delivery and payment shall
-18-
not be earlier than either five full business days thereafter or the
Closing Date, whichever occurs later. If such notice is given on or after
the Closing Date, the date set forth therein for such delivery and payment
shall be a date selected by the Representatives that is not earlier than
three or later than five full business days after the exercise of the Over-
allotment Option. The date and time set forth in such a notice is referred
to herein as an "Option Closing Date," and a closing held pursuant to such
a notice is referred to herein as an "Option Closing." The number of
Optional Shares to be sold to each Underwriter pursuant to each exercise of
the Over-allotment Option shall be the number that bears the same ratio to
the aggregate number of Optional Shares being purchased through such Over-
allotment Option exercise as the number of Offered Shares opposite the name
of such Underwriter in Schedule I hereto bears to the total number of all
Offered Shares; subject, however, to such adjustment as the Representatives
may approve to eliminate fractional shares and subject to the provisions
for the allocation of Optional Shares purchased for the purpose of covering
over-allotments set forth in of the Agreement Among Underwriters. Upon the
exercise of the Over-allotment Option, the Company and Selling Stockholders
shall become obligated to issue and sell to the Representatives for the
respective accounts of the Underwriters, and on the basis of the
representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, the several
Underwriters shall become severally but not jointly obligated to purchase
from the Company and Selling Stockholders, the number of Optional Shares
specified in the notice of exercise of the Over-allotment Option.
(c) Payment for the Optional Shares shall be made by certified or
official bank check payable to order in New York Clearing House funds, at
the offices of ING Barings LLC, 00 Xxxx 00/xx/ Xxxxxx, Xxx Xxxx, Xxx Xxxx,
or such other location as shall be agreed upon by the Company and the
Representatives, or in immediately available funds wired to such account as
the Company may specify (with all costs and expenses incurred by the
Underwriters in connection with such settlement in immediately available
funds (including, but not limited to, interest or cost of funds expenses)
to be borne by the Company, against delivery of the Optional Shares to the
Representatives at the offices of The Depository Trust Company, 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, for the respective accounts of the
Underwriters. The certificates representing the Optional Shares to be
issued and delivered will be in such denominations and registered in such
names as the Representatives request not less than two full business days
prior to the Option Closing Date, and will be made available to the
Representatives for inspection, checking and packaging at the office of The
Depository Trust Company in New York, New York or at such other location in
New York, New York as is specified by the Representatives not less than one
full business day prior to the Option Closing Date.
-19-
5. Certain Covenants and Agreements of the Company and the Selling
Stockholders.
(a) Covenants of the Company. The Company covenants and agrees with
the several Underwriters as follows:
(i) If Rule 430A of the Regulations is employed, the Company
will timely file the Prospectus pursuant to and in compliance with
Rule 424(b) of the Regulations and will advise the Representatives of
the time and manner of such filing.
(ii) The Company will not at any time, whether before or after
the Registration Statement shall have become effective, during such
period as, in the opinion of counsel for the Underwriters, the
Prospectus is required by law to be delivered in connection with sales
by the Underwriters or a dealer, file or publish any amendment or
supplement to the Registration Statement or the Prospectus of which
the Representatives have not been previously advised and furnished a
copy, or which is not in compliance with the Regulations, or, during
the period before the distribution of the Offered Shares and the
Optional Shares is completed, file or publish any amendment or
supplement to the Registration Statement or the Prospectus to which
the Representatives reasonably object in writing.
(iii) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time and date that
this Agreement is executed and delivered by the parties hereto, to
become effective and will advise the Representatives immediately, and
confirm such advice in writing, (A) when the Registration Statement,
or any post-effective amendment to the Registration Statement, is
filed with the SEC, (B) of the receipt of any comments from the SEC,
(C) when the Registration Statement has become effective and when any
post-effective amendment thereto becomes effective, or when any
supplement to the Prospectus or any amended Prospectus has been filed,
(D) of any request of the SEC for amendment or supplementation of the
Registration Statement or Prospectus or for additional information,
(E) during the period when the Prospectus is required to be delivered
under the Act and Regulations, of the happening of any event which in
the Company's judgment makes any material statement in the
Registration Statement or the Prospectus untrue or which requires any
changes to be made in the Registration Statement or the Prospectus in
order to make any material statements therein not misleading and (F)
of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
or suspending the use of any Preliminary Prospectus or the Prospectus,
the suspension of the qualification of any of the Shares for offering
or sale in any jurisdiction in which the Underwriters intend to make
such offers or sales, or of the initiation or threatening of any
proceedings for
-20-
any of such purposes. The Company will use its best efforts to
prevent the issuance of any such stop order or of any order
preventing or suspending such use and, if any such order is
issued, to obtain as soon as possible the lifting thereof.
(iv) The Company has delivered to the Representatives,
without charge, and will continue to deliver from time to time
until the Effective Date, as many copies of each Preliminary
Prospectus as the Representatives may reasonably request. The
Company will deliver to the Representatives, without charge, as
soon as possible after the Effective Date, and thereafter from
time to time during the period when delivery of the Prospectus is
required under the Act, such number of copies of the Prospectus
(as supplemented or amended, if the Company makes any supplements
or amendments to the Prospectus) as the Representatives may
reasonably request. The Company hereby consents to the use of
such copies of the Preliminary Prospectus and the Prospectus for
the purposes permitted by the Act, the Regulations and the
securities or Blue Sky laws of the jurisdictions in which the
Shares are offered by the several Underwriters and by all dealers
to whom Shares may be sold, both in connection with the offering
and sale of the Shares and for such period of time thereafter as
the Prospectus is required by the Act to be delivered in
connection with sales by any Underwriter or dealer. The Company
has furnished or will furnish to the Representatives two signed
copies of the Registration Statement as originally filed and of
all amendments thereto, whether filed before or after the
Effective Date, two copies of all exhibits filed therewith and
two signed copies of all consents and certificates of experts,
and will deliver to the Representatives such number of conformed
copies of the Registration Statement, including financial
statements and exhibits, and all amendments thereto, as the
Representatives may reasonably request.
(v) The Company will comply with the Act, the Regulations,
the Exchange Act and the rules and regulations thereunder so as
to permit the continuance of sales of and dealings in the Shares
for as long as may be necessary to complete the distribution of
the Shares as contemplated hereby. The Company will comply with
all of the provisions of any undertakings contained in the
Registration Statement.
(vi) Subject to subsection (ii) of this Section 5(a), in
case of any event, at any time within the period during which, in
the opinion of counsel for the Underwriters, a prospectus is
required to be delivered under the Act and the Regulations, as a
result of which event any Preliminary Prospectus or the
Prospectus, as then amended or supplemented, would contain in the
judgment of the Company or in the opinion of counsel for the
Underwriters an untrue statement of a material fact, or omit to
state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
-21-
made, not misleading, or, if it is necessary at any time to amend
any Preliminary Prospectus or the Prospectus to comply with the
Act and the Regulations or any applicable securities or Blue Sky
laws, the Company promptly will prepare and file with the SEC,
and any applicable state securities commission, an amendment or
supplement that will correct such statement or omission or an
amendment that will effect such compliance and will furnish to
the Representatives such number of copies of such amendment or
amendments or supplement or supplements to the Prospectus, in
form and substance satisfactory to the Representatives and
counsel for the Underwriters, as the Representatives may
reasonably request. For purposes of this subsection, the Company
will furnish such information to the Representatives, the
Underwriters' counsel and counsel to the Company as shall be
necessary to enable such persons to consult with the Company with
respect to the need to amend or supplement the Prospectus, and
shall furnish to the Representatives and the Underwriters'
counsel such further information as each may from time to time
reasonably request. If the Company and the Representatives agree
that the Prospectus should be amended or supplemented, the
Company, if requested by the Representatives, will, if and to the
extent required by law, promptly issue a press release announcing
or disclosing the matters to be covered by the proposed amendment
or supplement.
(vii) For a period of five years from the Effective
Date, the Company will deliver to the Representatives: (i) a copy
of each report or document, including, without limitation,
reports on Forms 8-K, 10-Q and 10-K (or such similar forms as may
be designated by the SEC), registration statements and any
exhibits thereto, filed or furnished to the SEC or any securities
exchange or the NASD, on the date each such report or document is
so filed or furnished; (ii) as soon as practicable, copies of any
reports or communications (financial or other) of the Company
mailed to its security holders and (iii) every material press
release in respect of the Company or its affairs that was
released or prepared by the Company.
(viii) The Company will not (A) take, directly or
indirectly, prior to the termination of the underwriting
syndicate contemplated by this Agreement, any action designed to
cause or to result in, or that might reasonably be expected to
constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares, (B) sell, bid for, purchase or pay anyone any
compensation for soliciting purchases of, the Shares or (C) pay
or agree to pay to any person any compensation for soliciting
another to purchase any other securities of the Company.
(ix) In connection with the lock-up agreements,
appropriate stop transfer instructions with respect to any Common
Shares held by such person will be issued by the Company to the
transfer agent for such Common Shares.
-22-
(x) The Company will not sell, issue, contract to sell
offer to sell or otherwise dispose of any Common Shares, options
to purchase Common Shares or any other security convertible into
or exchangeable for Common Shares, from the date of the Effective
Date through the period ending 90 days after the Effective Date,
without the prior written consent of the Representatives, which
consent shall not be unreasonably withheld, except for (i) the
sale of the Shares as contemplated by this Agreement and the
granting of options, (ii) the grant of options or awards under,
or the issuance of Common Shares upon the exercise of options or
awards granted under, the Company's 1992 Stock Option Plan or the
Company's 1997 Stock Option Plan described in the Prospectus,
(iii) the issuance of shares as consideration for future
acquisitions if the terms of such issuance provide that such
Common Shares shall not be sold prior to the expiration of the
90-day period referenced under the lock-up agreements, and (iv)
issuance of shares upon the exercise of outstanding Warrants.
(xi) The Company will cooperate with the
Representatives and counsel to the Underwriters in connection
with the filings requested to be made by Representatives with the
NASD and will pay the fee of the NASD in connection with its
review of the offering of the Shares.
(xii) The Company shall, at its sole cost and expense,
supply and deliver to the Representatives and the Underwriters'
counsel, within a reasonable period from the Closing Date, three
transaction binders, each of which shall include the Registration
Statement, as amended or supplemented, the Prospectus, and any
supplement thereto and all other underwriting and closing
documents.
(xiii) The Company will use the net proceeds from the
sale of the Shares to be sold by it hereunder substantially in
accordance with the description set forth in the Prospectus and
shall file such reports with the SEC with respect to the sale of
such Shares and the application of the proceeds therefrom as may
be required in accordance with Rule 463 under the Act.
(xiv) The Company shall cause to be prepared and
delivered, at its expense, within one business day from the date
hereof, to the Underwriters an "electronic Prospectus" to be used
by the Underwriters in connection with the offering and sale of
the Shares. As used herein, the term "electronic Prospectus"
means a form of Prospectus, and any amendment or supplement
thereto, that meets each of the following conditions: (i) it
shall be encoded in an electronic format, satisfactory to the
Underwriters, that may be transmitted electronically by the
Underwriters to offerees and purchasers of the Shares for at
least during the period when, in the opinion of counsel to the
Underwriters, the Prospectus is required to be delivered under
the Act or the Exchange Act; (ii) it shall disclose
-23-
the same information as the paper Prospectus and Prospectus filed
pursuant to the Electronic Data Gathering Analysis and Retrieval
System of the SEC ("XXXXX"), except to the extent that graphic
and image material cannot be disseminated electronically, in
which case such graphic and image material shall be replaced in
the electronic Prospectus with a fair and accurate narrative
description or tabular representation of such material, as
appropriate; and (iii) it shall be in or convertible into a paper
format or an electronic format, satisfactory to the
Representatives, that will allow investors to store and have
continuously ready access to the Prospectus at any future time,
without charge to investors (other than any fee charged for
subscription to the system as a whole and for on-line time). The
Company hereby confirms that it has included or will include in
the Prospectus filed pursuant to XXXXX or otherwise with the
Commission and in the Registration Statement at the effective
date of the Registration Statement an undertaking that, upon
receipt of a request by an investor or his or her representative
during the period when, in the opinion of counsel to the
Underwriters, delivery of a Prospectus by an Underwriter or
dealer may be required by the Act, the Company shall transmit or
cause to be transmitted promptly, without charge, a paper copy of
the Prospectus.
(b) Covenants of the Selling Stockholders. Each of the Selling
Stockholders covenants and agrees with each of the Underwriters:
(i) Such Selling Stockholder will execute a lock-up
agreement, which lock-up agreement shall be in form of Exhibit C
hereto, and shall deliver such agreement to the Representatives
prior to the Effective Date. Appropriate stop transfer
instructions with respect to the Common Shares held by such
Selling Stockholder, other than the Shares to be sold by such
Selling Stockholder hereunder, will be issued by the Company to
the transfer agent for the Common Shares.
(ii) Neither such Selling Stockholder nor any of its
officers, directors (if applicable) or affiliates will (A) take,
directly or indirectly, prior to the termination of the
underwriting syndicate contemplated by this Agreement, any action
designed to cause or to result in, or that might reasonably be
expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of any of the Shares, (B) sell, bid for, purchase or pay
anyone any compensation for soliciting purchases of, the Shares
or (C) pay to or agree to pay any person any compensation for
soliciting another to purchase any other securities of the
Company.
(iii) Such Selling Stockholder will not, without the
prior written consent of the Representatives, make any bid for or
purchase any Common Shares during the 90-day period following the
date hereof.
-24-
6. Payment of Expenses.
(a) Whether or not the transactions contemplated by this
Agreement are consummated and regardless of the reason this Agreement
is terminated, the Company will pay or cause to be paid, and bear or
cause to be borne, all costs and expenses incident to the performance
of the obligations of the Company and the Selling Stockholders under
this Agreement, including: (i) the fees and expenses of the
accountants and counsel for the Company incurred in the preparation of
the Registration Statement and any post-effective amendments thereto
(including financial statements and exhibits), the Preliminary
Prospectuses and the Prospectus and any amendments or supplements
thereto; (ii) printing and delivery expenses associated with the
Registration Statement and any post-effective amendments thereto, the
Preliminary Prospectus, the Prospectus and related documents and any
supplement thereto; (iii) the costs (other than fees and expenses of
the Underwriters' counsel) incident to the authentication, issuance,
sale and delivery of the Shares to the Underwriters; (iv) all taxes,
if any, on the issuance, delivery and transfer of the Shares to be
sold by the Company and the Selling Stockholders; (v) the fees,
expenses and other costs of, or incident to, securing any review or
approvals by or from the NASD including the fees, disbursements and
other charges of the Underwriters' counsel in connection therewith;
(vi) the filing fees of the SEC; (vii) the cost of furnishing to the
Underwriters copies of the Registration Statement, the Preliminary
Prospectuses and the Prospectuses as herein provided; (viii) the
Company's travel expenses in connection with meetings with the
brokerage community and institutional investors; (ix) the costs and
expenses associated with settlement in same day funds (including, but
not limited to, interest or cost of funds expenses), if desired by the
Company or the Selling Stockholders; (x) the fees for listing the
Shares on the ASE; (xi) the cost of printing certificates for the
Shares; (xii) the cost and charges of any transfer agent or custodian;
(xiii) all costs and expenses incident to Company travel for "road
show" presentations to be made to prospective investors; and (xiv) all
other costs and expenses reasonably incident to the performance of
their respective obligations hereunder that are not otherwise
specifically provided for in this Section 6, provided that except as
specifically set forth in subsection (c) of this Section 6 the
Underwriters shall be responsible for their out-of-pocket expenses,
including those associated with meetings with the brokerage community
and institutional investors, other than the Company's travel expenses,
and the fees and expenses of their counsel.
(b) If this Agreement shall be terminated by the Company or if
for any reason the Company shall fail to perform its obligations
hereunder, if any condition to the obligations of the Underwriters set
forth in Section 7 hereof is not satisfied or if the sale to the
Underwriters of the Shares on the Closing Date is not consummated
because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or to comply with any
provision hereof, the Company agrees to reimburse the Representatives
and the other Underwriters (or such Underwriters as have terminated
this
-25-
Agreement with respect to themselves), severally, upon demand for all
reasonable out-of-pocket expenses that shall have been incurred by the
Representatives and the Underwriters in connection with the proposed
purchase and the offering and sale of the Shares, including but not
limited to fees and disbursements of counsel, printing expenses,
travel expenses, postage, facsimile and telephone charges.
7. Conditions of the Underwriters' Obligations. The obligation of
each Underwriter to purchase and pay for the Offered Shares that it has
agreed to purchase hereunder on the Closing Date, and to purchase and pay
for any Optional Shares as to which it exercises its right to purchase
under Section 4 on any Option Closing Date, is subject at the date hereof,
the Closing Date and any Option Closing Date to the continuing accuracy of
the respective representations and warranties of the Company and of the
Selling Stockholders set forth herein, to the performance by the Company
and by the Selling Stockholders of their respective covenants and
obligations hereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not
later than 5:30 p.m., New York time, on the date of this Agreement, or
at such later time or on such later date as the Representatives may
agree to in writing; if required by the Regulations, the Prospectus
shall have been filed with the SEC pursuant to Rule 424(b) of the
Regulations within the applicable time period prescribed for such
filing by the Regulations and in accordance with subsection (a) of
Section 5 hereof; on or prior to the Closing Date or any Option
Closing Date, as the case may be, no stop order or other order
preventing or suspending the effectiveness of the Registration
Statement or the sale of any of the Shares shall have been issued
under the Act or any state securities law and no proceedings for that
purpose shall have been initiated or shall be pending or, to the
Representatives' knowledge or the knowledge of the Company, shall be
contemplated by the SEC and any request on the part of the SEC for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters.
(b) All corporate proceedings and other matters incident to the
authorization, form and validity of this Agreement, the Shares and the
form of the Registration Statement and the Prospectus, and all other
legal matters relating to this Agreement and the transactions
contemplated hereby, shall be satisfactory in all respects to counsel
to the Underwriters; the Company shall have furnished to such counsel
all documents and information that they may reasonably request to
enable them to pass upon such matters; and the Representatives shall
have received from the Underwriters' counsel, Duane, Morris &
Heckscher LLP, a favorable opinion, dated as of the Closing Date and
any Option Closing Date, as the case may be, and addressed to the
Representatives individually and as the Representatives of the several
Underwriters with respect to the due authorization, execution and
delivery of this Agreement, that the issuance and sale of the Shares
have been duly authorized by the Company and the Selling Stockholders,
that when the Offered Shares have been duly delivered against payment
therefor as
-26-
contemplated by this Agreement, they will be validly issued, fully
paid and nonassessable and that the Registration Statement has become
effective under the Act.
(c) The NASD shall have indicated that it has no objection to
the underwriting arrangements pertaining to the sale of any of the
Shares.
(d) The Representatives shall have received copies of the lock-
up agreements described in subsection (x) of Section 5(a) and
subsection (i) of Section 5(b) signed by those persons set forth on
Schedule II annexed hereto.
(e) On the Closing Date and any Option Closing Date, there shall
have been delivered to the Representatives a signed opinion of Xxxxx
Xxxxxxx Xxxxxxx & Xxxxx LLP, counsel for the Company ("Company
Counsel"), dated as of each such date and addressed to the
Representatives individually and as the Representatives of the several
Underwriters to the effect that:
(i) The Company has been incorporated and is
validly existing and in good standing under the laws of
Maryland, with corporate power and authority to own or lease
and operate its properties and to conduct its business as
described in the Prospectus and to execute, deliver and
perform this Agreement. To the knowledge of Company Counsel,
the Company does not own any stock or other equity interest
in any corporation, partnership or other entity other than
the Subsidiaries.
(ii) Each Subsidiary has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the
corporate power and authority to own or lease its properties
and conduct its business as described in the Prospectus.
(iii) This Agreement has been duly authorized,
executed and delivered by the Company.
(iv) The execution, delivery and performance of this
Agreement by the Company does not and will not, with or
without the giving of notice or the lapse of time, or both,
(A) conflict with any terms or provisions of the Charter or
By-laws, as amended to the date hereof of each of the
Company or the Subsidiaries; (B) to Company Counsel's
knowledge result in a material breach of, or constitute a
default under, result in the termination or modification of
or result in the creation or imposition of any lien,
security interest, charge or encumbrance upon any of the
material properties of the Company or any Subsidiary
pursuant to, any material indenture, mortgage, deed of
trust, contract, commitment or other agreement or
instrument, known to Company Counsel, to which the Company
or any Subsidiary is a party or by which any of the material
properties or assets of the Company or any Subsidiary is
bound or subject or (C) violate any law, rule or
-27-
regulation applicable to the Company or any Subsidiary, or
to Company Counsel's knowledge violate any judgment, order
or decree, of any government or governmental agency,
instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of
the material properties of the Company or any Subsidiary.
(v) The Company has the authorized and outstanding
capitalization as set forth in the Prospectus. To the
knowledge of Company Counsel there are no options or
warrants for the purchase of, other outstanding rights to
purchase, agreements or obligations to issue or agreements
or other rights to convert or exchange any obligation or
security into, capital stock of the Company or securities
convertible into or exchangeable for capital stock of the
Company, except as described in the Registration Statement
or the Prospectus.
(vi) The Common Shares outstanding immediately prior
to the Closing Date, including the Common Shares to be sold
by the Selling Stockholders, have been duly authorized and
are validly issued, fully paid and nonassessable; the
Employee Options have been duly authorized and validly
issued; the Common Shares issuable pursuant to the Employee
Options, when issued in accordance with the respective terms
thereof, will be duly authorized and validly issued, fully-
paid and nonassessable; the Company has reserved a
sufficient number of Common Shares for issuance pursuant to
the Employee Options, and none of such outstanding Common
Shares or Employee Options are, and none of such issuable
Common Shares will be, issued in violation of any preemptive
rights, known to Company Counsel of any security holder of
the Company that have not been waived.
(vii) All of the issued shares of capital stock of
each of the Subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable, and, to
the knowledge of Company Counsel, are owned beneficially by
the Company free and clear of all liens, security interests,
pledges, charges, encumbrances, stockholders agreements,
voting trusts, equities or claims of any nature whatsoever
except as provided under the Loan Documents.
(viii) The issuance and sale of the Shares by the
Company have been duly authorized and, when the Shares have
been duly delivered against payment therefor as contemplated
by this Agreement, the Shares will be validly issued, fully
paid and nonassessable. None of the Shares issued by the
Company will be issued in violation of any preemptive rights
of any stockholder of the Company pursuant to the Charter or
By-laws, as amended to the date hereof, of the Company and,
to the knowledge of Company Counsel, there are no
contractual preemptive rights that have not been waived that
exist with respect to the Shares. The certificates
representing the Shares are in proper legal form under, and
-28-
conform in all material respects to the requirements of, the
MGCL. Neither the filing of the Registration Statement nor
the offering or sale of the Shares as contemplated by this
Agreement gives any security holder of the Company any
rights, other than those which have been waived and those of
the Selling Stockholders, for or relating to the
registration of any Common Shares and there are no
contracts, agreements or understandings known to such
counsel between the Company and any person granting such
person the right to require the Company to file a
registration statement under the Act with respect to any
securities of the Company owned or to be owned by such
person.
(ix) No consent, approval, authorization, order,
registration, license or permit of any court, government,
governmental agency, instrumentality or other regulatory
body or official is required for the valid authorization,
issuance, sale and delivery by the Company of any of the
Shares or for the execution, delivery or performance by the
Company of this Agreement, except such as may be required
for the registration of the Shares under the Act, the
Regulations or the Exchange Act, or for compliance with the
applicable state securities or Blue Sky laws, or the By-
laws, rules and other pronouncements of the NASD as to which
no opinion shall be required.
(x) To Company Counsel's knowledge except as
disclosed in the Registration Statement there are no
material claims, actions, suits, proceedings, arbitrations,
investigations or inquiries pending before, or threatened or
contemplated by, any governmental agency, instrumentality,
court or tribunal, domestic or foreign, or before any
private arbitration tribunal, to which the Company is a
party or is threatened to be made a party that, if
determined adversely to the Company, would, in any case or
in the aggregate, result in any material adverse change in
the general affairs, material properties, condition
(financial or otherwise), results of operations,
stockholders' equity or business of the Company and the
Subsidiaries.
(xi) The Registration Statement has become effective
under the Act, as of the Effective Date, and, to Company
Counsel's knowledge, the SEC has not issued any stop order
suspending the effectiveness of the Registration Statement,
nor has the SEC instituted or threatened to institute
proceedings with respect to any such order. Any and all
filings required to be made by Rule 424 and Rule 430A under
the Act have been made.
(xii) The Registration Statement and the Prospectus,
as of the Effective Date, and each amendment or supplement
thereto as of its effective or issue date (except for the
financial statements and notes thereto, and related
schedules, and other financial, statistical, technical or
scientific information, included therein or omitted
therefrom, as to which Company Counsel need not express an
opinion)
-29-
comply as to form in all material respects with the
applicable requirements of the Act and Regulations.
(xiii) Assuming application of the net proceeds of the
offering in accordance with the Prospectus, the Company is
not, and will not be as a result of the consummation of the
transactions contemplated by this Agreement, an "investment
company" or a company "controlled" by an "investment
company" within the meaning of the 1940 Act.
In addition to the matters set forth above, such
opinion shall also include a statement to the effect that
while Company Counsel has participated in the preparation of
the Registration Statement and the Prospectus, including
reviews and discussions of the contents thereof, and while
such Counsel has no particular expertise and is not
expressing any view with respect to the financial statements
and notes thereto and related schedules and the other
financial, statistical, technical and scientific information
contained in the Prospectus, and is not passing upon the
accuracy or completeness of the statements contained in the
Registration Statement or the Prospectus, other than those
specifically referred to in clause (v) of this subsection
(e) of this Section 7, in the course of such reviews and
discussions, no facts came to its attention that would cause
it to have reason to believe that (A) the Registration
Statement or any post-effective amendment thereto, on the
date it became effective and on the Closing Date or the
Option Closing Date, as the case may be, contained any
untrue statement of a material fact or omitted any material
fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading
or that (B) the Prospectus on the Effective Date, on the
date it was filed pursuant to Rule 424(b) and on the Closing
Date or Option Closing Date, as the case may be, contained
any untrue statement of material fact or omitted any
material fact necessary to make the statements therein, in
light of the circumstances under which made, not misleading.
(xv) Nothing has come to the attention of Company
Counsel that causes it to believe that each of the Company
and the Subsidiaries does not have sufficient licenses,
permits, certifications, registrations, approvals, consents
and franchises (collectively, "Permits") required to conduct
its business as described in the Prospectus in all material
respects.
(xvi) The Common Shares have been approved for
inclusion on the ASE.
The foregoing opinion may be limited to the laws of the
United States and the State of Maryland and Company Counsel may rely
as to certain legal matters on other counsel to the Company provided
that, in each case, Company Counsel shall state that
-30-
they believe that they and the Underwriters are justified in relying on
such other counsel and shall deliver signed copies of any such opinion to
the Representatives and as to questions of fact upon the representations of
the Company set forth in this Agreement and upon certificates of officers
of the Company and of government officials, all of which certificates must
be reasonable and satisfactory in form and scope to counsel to the
Underwriters provided that, in each case, Company Counsel shall deliver
signed copies of any such certificate to the Representatives. As to matters
of _________ law relating to the Selling Stockholders included in the
opinion of__________ delivered concurrently with the foregoing opinion,
Company Counsel shall state that it is reasonable for the Underwriters to
rely on such opinion. The foregoing opinion shall also include the opinions
set forth in Section 7(i)(iii) and Section 7(i)(v) of this Agreement to the
extent based upon U.S. law.
(g) For each of the Selling Stockholders on the Closing Date and any
Option Closing Date, there shall have been delivered to the Representatives
a signed opinion of counsel satisfactory to the Representatives dated as of
each such date and addressed to the Representatives, individually and as
the Representatives of the several Underwriters, to the effect that:
(i) The Selling Stockholder has been duly organized and is
validly existing in good standing under the laws of the state of its
organization.
The Agreement has been duly authorized, executed and
delivered by the Selling Stockholder and such execution, delivery and
performance does not and will not, with or without the giving of
notice or the lapse of time, or both, (A) conflict with any terms or
provisions of the organizational documents of such Selling
Stockholder, as amended to the date hereof; (B) result in a breach of,
or constitute a default under, result in the termination or
modification of or result in the creation or imposition of any lien,
security interest, charge or encumbrance upon any of the material
properties of the Selling Stockholder pursuant to, any material
indenture, mortgage, deed of trust, contract, commitment or other
agreement or instrument, known to such counsel upon due inquiry, to
which such Selling Stockholder is a party or by which any of the
material properties or assets of the Selling Stockholder is bound or
subject or (C) violate any law, rule or regulation, or violate any
judgment, order or decree, known to such counsel, of any government or
governmental agency, instrumentality or court, domestic or foreign,
having jurisdiction over the Selling Stockholder or any of the
material properties of the Selling Stockholder.
(h) At the Closing Date and any Option Closing Date: (i) the
Registration Statement and any post-effective amendment thereto and the
Prospectus and any amendments or supplements thereto shall contain all
statements that are required to be stated therein in accordance with the
Act and the Regulations and in all material respects
-31-
shall conform to the requirements of the Act and the Regulations, and
neither the Registration Statement nor any post-effective amendment thereto
nor the Prospectus and any amendments or supplements thereto shall contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
(ii) since the respective dates as of which information is given in the
Registration Statement and any post-effective amendment thereto and the
Prospectus and any amendments or supplements thereto, except as otherwise
stated therein, there shall have been no material adverse change in the
material properties, assets, condition (financial or otherwise), results of
operations, stockholders' equity, business or management of the Company and
the Subsidiaries taken as a whole from that set forth therein, whether or
not arising in the ordinary course of business, other than as referred to
in the Registration Statement or the Prospectus; (iii) since the respective
dates as of which information is given in the Registration Statement and
the Prospectus or any amendment or supplement thereto, there shall have
been no transaction, contract or agreement entered into by the Company or
any Subsidiary, other than as set forth in the Registration Statement or
the Prospectus, that has not been, but would be required to be, set forth
in the Registration Statement or the Prospectus and (iv) no action, suit or
proceeding at law or in equity shall be pending or, to the knowledge of the
Company, threatened against the Company or any Subsidiary that would be
required to be set forth in the Prospectus, other than as set forth
therein, and no proceedings shall be pending or, to the knowledge of the
Company, threatened against the Company or any Subsidiary before or by any
federal, state or other commission, board or administrative agency wherein
an unfavorable decision, ruling or finding would materially adversely
affect the material properties, assets, condition (financial or otherwise),
results of operations, stockholders' equity or business of the Company and
the Subsidiaries taken as a whole other than as set forth in the
Prospectus. The Representatives shall have received certificates of the
Chief Executive Officer and the Chief Financial Officer of the Company
dated as of the date of the Closing Date or Option Closing Date, as the
case may be, and certificates of the Selling Stockholders dated as of the
date of the Closing Date or Option Closing Date, as the case may be, and
addressed to the Representatives, individually and as the Representatives
of the several Underwriters, to the effect that the conditions set forth in
this subsection have been satisfied and as to the accuracy and performance
as of the Closing Date or the Option Closing Date, as the case may be, of
the agreements, representations and warranties of the Company set forth
herein and as to the accuracy and performance as of the Closing Date and
Option Closing Date, as the case may be, the agreements, representations
and warranties of the Selling Stockholder set forth herein.
(i) At the time this Agreement is executed and at the Closing Date
and any Option Closing Date, the Representatives shall have received a
letter addressed to the Representatives, individually and as the
Representatives of the several Underwriters, and in form and substance
satisfactory to the Representatives in all respects, including the
-32-
non-material nature of the changes or decreases, if any, referred to in
clause (iv) below, from Ernst & Young LLP dated as of the date of this
Agreement, the Closing Date or any Option Closing Date, as the case may be:
(i) confirming that they are independent public accountants
with respect to the Company and its consolidated subsidiaries within
the meaning of the Act and the Regulations and stating that the
section of the Registration Statement under the caption "Experts" is
correct insofar as it relates to them;
(ii) stating that, in their opinion, the consolidated financial
statements of the Company, the Subsidiaries audited by them and P&M
included in the Registration Statement and in the Prospectus comply in
form in all material respects with the applicable accounting
requirements of the Act and the Regulations;
(iii) the consolidated financial statements of the Company and
the Subsidiaries (including P&M) as of and for the six-month period
ended June 30, 2000, were reviewed by them in accordance with the
standards established by the American Institute of Certified Public
Accountants and based upon their review they are not aware of any
material modifications that should be made to such financial
statements for them to be in conformity with generally accepted
accounting principles, and such financial statements comply as to form
in all material respects with the applicable accounting requirements
of the Act and the Regulations thereunder;
(iv) stating that, on the basis of specified procedures, not
constituting an audit in accordance with generally accepted accounting
principles, which included a reading of the unaudited interim
consolidated financial statements of the Company and the Subsidiaries
(including P&M) for period ended June 30, 2000, a reading of the
minutes of the meetings of the stockholders and the Board of Directors
of the Company and audit and compensation committees of such Board, if
any, and inquiries to certain officers and other employees of the
Company who are responsible for financial and accounting matters and
other specified procedures and inquiries, nothing has come to their
attention that would cause them to believe that (A) the unaudited
consolidated financial statements and related schedules of the Company
and the Subsidiaries (including P&M) included in the Registration
Statement, if any (1) do not comply in form in all material respects
with the applicable accounting requirements of the Act and the
Regulations or (2) were not fairly presented in conformity with
generally accepted accounting principles on a basis substantially
consistent with that of the audited consolidated financial statements
and related schedules included in the Registration Statement or (B)(1)
at a specified date, not more than five business days prior to the
date of such letter, there was more than a 10% change in the
-33-
capital stock, inventories or short-term or long-term debt of the
Company and the Subsidiaries (including P&M) or any decrease
(increase) of more than 10% in net current assets, total assets or
stockholders' equity compared with the amounts shown in the ________,
2000 consolidated balance sheet of the Company included in the
Registration Statement, other than as set forth in or contemplated by
the Registration Statement and the Prospectus, or if there was any
such change or decrease (increase), setting forth the amount of such
change or decrease (increase), and (2) during the period from
___________, 2000 to a specified date not more than five business days
prior to the date of such letter, there has been any decrease of more
than 10% in revenues or any increase of more than 10% in loss before
interest income (expense), net and taxes or net loss of the Company
and the Subsidiaries on a consolidated basis other than as set forth
in or contemplated by the Registration Statement or the Prospectus;
and
(v) stating that they have compared specific dollar amounts,
percentages, numbers of shares and other information (including pro
forma information) pertaining to the Company and the Subsidiaries
(including P&M) set forth in the Registration Statement and the
Prospectus that have been specified by the Representatives prior to
the date of this Agreement, to the extent that such amounts,
percentages, numbers and information may be derived from the general
accounting or other records of the Company and the Subsidiaries
(including P&M), with the results obtained from the application of
specified readings, inquiries and other appropriate procedures, which
procedures do not constitute an audit in accordance with generally
accepted auditing standards, set forth in the letter, and found them
to be in agreement.
(vi) in the event that the letters referred to in this Section
7(i) set forth any changes, decreases or increases in the items
specified in subsection (v) of this Section 7(i), it shall be a
further condition to the obligations of the Underwriters that (A) such
letters shall be accompanied by a written explanation by the Company
as to the significance thereof, unless the Representatives deem such
explanation unnecessary, and (B) such changes, decreases or increases
do not, in their sole judgment, make it impractical or inadvisable to
proceed with the purchase, sale and delivery of the Shares being
delivered at the Closing Date or any Option Closing Date, as the case
may be, as contemplated by the Registration Statement, as amended as
of the date of such letter.
In addition the Representatives shall have received from Ernst & Young LLP
a letter addressed to the Company and made available for the use of the
Underwriters stating that their review of the Company's system of internal
accounting controls, to the extent they deemed necessary in establishing the
scope of their examination of the Company's consolidated financial statements as
of December 31, 1999, did not disclose any weaknesses in internal controls that
they considered to be substantial or material weaknesses.
-34-
(k) There shall have been duly tendered to the Representatives for
the respective accounts of the Underwriters certificates representing all
of the Shares to be purchased by the Underwriters on the Closing Date or
any Option Closing Date, as the case may be.
(l) At the Closing Date and any Option Closing Date, the
Representatives shall have been furnished such additional documents and
certificates as they shall reasonably request.
(m) No action shall have been taken by the NASD the effect of which
is to make it improper, at any time prior to the Closing Date or any Option
Closing Date, for members of the NASD to execute transactions as principal
or as agent in the Shares or to trade or deal in the Shares, and no
proceedings for the purpose of taking such action shall have been
instituted or shall be pending or, to the Company's or the Representatives'
knowledge, shall be threatened by the NASD.
If any condition to the Underwriters' obligations hereunder to be
fulfilled prior to or at the Closing Date or any Option Closing Date, as
the case may be, is not fulfilled, the Representatives may on behalf of the
several Underwriters terminate this Agreement or, if they so elect, waive
any such conditions which have not been fulfilled or extend the time for
their fulfillment.
8. Indemnification.
(a) The Company shall indemnify and hold harmless each Underwriter,
and each person, if any, who controls each Underwriter within the meaning
of the Act or the Exchange Act, against any and all loss, liability, claim,
damage and expense whatsoever, whether joint or several, to which such
Underwriter may become subject, under the Act or otherwise, including, but
not limited to, any and all expense whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or
any claim whatsoever or in connection with any investigation or inquiry of,
or action or proceeding that may be brought against, the respective
indemnified parties, arising out of or based upon any untrue statements or
alleged untrue statements of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the foregoing indemnity of the Company (i) shall not apply in
respect of any statement or omission made in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or
any amendment thereto or supplement thereof, or in any application or in
any communication to the SEC, as the case may be,
-35-
and (ii) with respect to any Preliminary Prospectus, shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages, liabilities or expenses purchased the Shares that are the
subject thereof (or to the benefit of any person controlling such
Underwriter) if at or prior to the written confirmation of the sale of such
Shares a copy of an amended Preliminary Prospectus or the Prospectus (or
the Prospectus as amended or supplemented) was not sent or delivered to
such person and the untrue statement or omission of a material fact
contained in such Preliminary Prospectus was corrected in the amended
Preliminary Prospectus or Prospectus (or the Prospectus as amended or
supplemented). The Company will not, without the prior written consent of
the Underwriters, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding (or
related cause of action or portion thereof) in respect of which
indemnification may be sought hereunder, whether or not any Underwriter is
a party to such claim, action, suit or proceeding, unless such settlement,
compromise or consent includes an unconditional release of each Underwriter
from all liability arising out of such claim, action, suit or proceeding
(or related cause of action or portion thereof). This indemnity agreement
will be in addition to any liability the Company may otherwise have.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, each of the directors of the Company, each of
the officers of the Company who shall have signed the Registration
Statement and each other person, if any, who controls the Company within
the meaning of the Act or the Exchange Act to the same extent as the
foregoing indemnities from the Company to the several Underwriters, but
only with respect to any loss, liability, claim, damage or expense
resulting from statements or omissions, or alleged statements or omissions,
if any, made in any Preliminary Prospectus, the Registration Statement or
the Prospectus or any amendment thereto or supplement thereof or any
application in reliance upon, and in conformity with written information
furnished to the Company by any Underwriter through the Representatives or
with respect to any Underwriter by or on behalf of such Underwriter
expressly for use in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any amendment thereto or supplement thereof or any
application, as the case may be, or from the failure of any Underwriter at
or prior to the written confirmation of the sale of Shares to send or
deliver a copy of an amended Preliminary Prospectus or the Prospectus (or
the Prospectus as amended or supplemented) to the person asserting any such
losses, claims, damages, liabilities or expenses who purchased the Shares
that are the subject thereof and the untrue statement or omission of a
material fact contained in such Preliminary Prospectus was corrected in the
amended Preliminary Prospectus or Prospectus (or the Prospectus as amended
or supplemented). This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
(c) If any action, inquiry, investigation or proceeding is brought
against any person in respect of which indemnity may be sought pursuant to
any of the two preceding paragraphs, such person (hereinafter called the
"indemnified party") shall, promptly after
-36-
formal notification of, or receipt of service of process for, such action,
inquiry, investigation or proceeding, notify in writing the party or
parties against whom indemnification is to be sought (hereinafter called
the "indemnifying party") of the institution of such action, inquiry,
investigation or proceeding and the indemnifying party, upon the request of
the indemnified party, shall assume the defense of such action, inquiry,
investigation or proceeding, including the employment of counsel,
reasonably satisfactory to such indemnified party, and payment of expenses.
No indemnification provided for in this Section 8 shall be available to any
indemnified party who shall fail to give such notice if the indemnifying
party does not have knowledge of such action, inquiry, investigation or
proceeding and shall have been materially prejudiced by the failure to give
such notice, but the omission so to notify the indemnifying party shall not
relieve the indemnifying party otherwise than under this Section 8. Such
indemnified party or controlling person shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless the
employment of such counsel shall have been authorized in writing by the
indemnifying party in connection with the defense of such action or the
indemnifying party shall not have employed counsel, within a reasonable
period of time, to have charge of the defense of such action, inquiry,
investigation or proceeding or such indemnified party or parties shall have
been advised by counsel that there is a conflict of interest that would
prevent counsel to the indemnifying party from representing both parties,
in any of which events the reasonable fees and expenses of such counsel
shall be borne by the indemnifying party. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses
of more than one separate counsel, in addition to one local counsel in each
jurisdiction in which any proceeding may be brought, for all indemnified
parties. In the case of any such separate counsel for the Underwriters,
such firm shall be designated in writing by the Representatives. Expenses
covered by the indemnification in this subsection (c) of this Section 8
shall be paid by the indemnifying party as they are incurred by the
indemnified party. Anything in this subsection to the contrary
notwithstanding, the indemnifying party shall not be liable for any
settlement of any such claim effected without its written consent. The
indemnifying party shall promptly notify the indemnified party of the
commencement of any litigation, inquiry, investigation or proceeding
against the indemnifying party or any of its officers or directors in
connection with the issue and sale of any of the Shares or in connection
with such Preliminary Prospectus, Registration Statement or Prospectus, or
any amendment thereto or supplement thereof or any such application.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsections (a) or (b) of this Section 8 in respect of any losses,
liabilities, claims, damages or expenses (or actions, inquiries,
investigations or proceedings in respect thereof) referred to therein
except either by reason of the proviso set forth in subsection (a) or the
failure to give notice as
-37-
required in subsection (c) (provided that the indemnifying party does not
have knowledge of the action, inquiry, investigation or proceeding and has
been materially prejudiced by the failure to give such notice), then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, liabilities, claims, damages
or expenses (or actions, inquiries, investigations or proceedings in
respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted
by applicable law or the indemnified party failed to give the notice
required under subsection (c) then each indemnifying party shall contribute
to such amount paid or payable by such indemnified party in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, liabilities, claims or reasonable expenses (or actions, inquiries,
investigations or proceedings in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the
Company 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
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the Prospectus.
The 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 on the one hand or the Underwriters on
the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company, and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, liabilities, claims, damages or reasonable expenses
(or actions, inquiries, investigations or proceedings in respect thereof)
referred to above in this subsection (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 subsection (d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the
public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
-38-
9. Representations and Agreements to Survive Delivery. Except as the
context otherwise requires, all representations, warranties and agreements
contained in this Agreement shall be deemed to be representations, warranties
and agreements at the Closing Date and any Option Closing Date; and such
representations, warranties and agreements of the Underwriter, the Company and
the Selling Stockholders, including without limitation the indemnity and
contribution agreements contained in Section 8 hereof and the agreements
contained in Sections 6, 9, 10 and 13 hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter or any controlling person thereof, and shall survive delivery of the
Shares and termination of this Agreement, whether before or after the Closing
Date or any Option Closing Date.
10. Effective Date of this Agreement and Termination Thereof.
(a) This Agreement shall become effective immediately as to Sections
6, 8, 9, 10 and 13 and, as to all other provisions, (i) if at the time of
execution and delivery of this Agreement the Registration Statement has not
become effective, at 11:00 a.m., New York time, on the first business day
following the Effective Date, or (ii) if at the time of execution and
delivery of this Agreement the Registration Statement has been declared
effective, at 11:00 a.m., New York time, on the date of execution of this
Agreement; but this Agreement shall nevertheless become effective at such
earlier time after the Registration Statement becomes effective as the
Representatives may determine by notice to the Company or by release of any
of the Shares for sale to the public. For the purposes of this Section 10,
the Shares shall be deemed to have been so released upon the release for
publication of any newspaper advertisement relating to the Shares or upon
the release by the Representatives of telegrams (i) advising the
Underwriters that the Shares are released for public offering or (ii)
offering the Shares for sale to securities dealers, whichever may occur
first. The Representatives may prevent the provisions of this Agreement
(other than those contained in Sections 6, 8, 9, 10 and 13) from becoming
effective without liability of any party to any other party, except as
noted below, by giving the notice indicated in subsection (c) of this
Section 10 before the time the other provisions of this Agreement become
effective.
(b) The Representatives shall have the right to terminate this
Agreement at any time prior to the Closing Date as provided in Sections 7
and 11 hereof or if any of the following have occurred: (i) since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change or any
development involving a prospective material adverse change in or affecting
the condition, financial or otherwise, of the Company and the Subsidiaries
taken as a whole, or the earnings, business affairs, management or business
prospects of the Company and the Subsidiaries, whether or not arising in
the ordinary course of business; (ii) any outbreak of hostilities or other
national or international calamity or crisis or change in economic,
political or financial market conditions if such outbreak, calamity, crisis
or
-39-
change would, in the Representatives' reasonable judgment, have a material
adverse effect on the Company, the financial markets of the United States
or the offering or delivery of the Shares; (iii) suspension of trading
generally in securities on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market or limitation on prices (other than
limitations on hours or numbers of days of trading) for securities or the
promulgation of any federal or state statute, regulation, rule or order of
any court or other governmental authority which in the Representatives'
reasonable opinion materially and adversely affects trading on such
Exchange or the over-the-counter market; (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation,
rule or order of any court or other governmental authority which in the
Representatives' reasonable opinion materially and adversely affects or
will materially or adversely affect the business or operations of the
Company and the Subsidiaries; (v) declaration of a banking moratorium by
federal authorities; (vi) the taking of any action by any federal, state or
local government or agency in respect of its monetary or fiscal affairs
which in the Representatives' reasonable opinion has a material adverse
effect on the securities markets in the United States; (vii) declaration of
a moratorium in foreign exchange trading by major international banks or
other institutions or (viii) trading in any securities of the Company shall
have been suspended or halted by the NASD or the SEC.
(c) If the Representatives elect to prevent this Agreement from
becoming effective or to terminate this Agreement as provided in this
Section 10, the Representatives shall notify the Company and the Selling
Stockholders thereof promptly by telephone, telex, telegraph, telegram or
facsimile, confirmed by letter.
11. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or their
obligation to purchase Offered Shares or Optional Shares hereunder, and if
the Offered Shares or Optional Shares with respect to which such default
relates do not exceed the aggregate of 10% of the number of Offered Shares
or Optional Shares, as the case may be, that all Underwriters have agreed
to purchase hereunder, then such Offered Shares or Optional Shares to which
the default relates shall be purchased severally by the non-defaulting
Underwriters in proportion to their respective commitments hereunder.
(b) If such default relates to more than 10% of the Offered Shares or
the Optional Shares, as the case may be, the Representatives may in their
discretion arrange for another party or parties (including a non-defaulting
Underwriter) to purchase such Offered Shares or Optional Shares to which
such default relates, on the terms contained herein. In the event that the
Representatives do not arrange for the purchase of the Offered Shares or
the Optional Shares to which a default relates as provided in this Section
11, this Agreement may be terminated by the Representatives or by the
Company, without liability on the part of the several Underwriters (except
as provided in Section 8 hereof) or the Company or the Selling Stockholders
(except as provided in)
-40-
Sections 6 and 8 hereof), but nothing herein shall relieve a defaulting
Underwriter of its liability, if any, to the other several Underwriters and
to the Company or the Selling Stockholders for damages occasioned by its
default hereunder.
(c) If the Offered Shares or Optional Shares to which the default
relates are to be purchased by the non-defaulting Underwriters, or are to
be purchased by another party or parties as aforesaid, the Representatives
or the Company shall have the right to postpone the Closing Date or the
Option Closing Date, as the case may be, for a reasonable period but not in
any event exceeding seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus
or in any other documents and arrangements, and the Company agrees to file
promptly any amendment to the Registration Statement or supplement to the
Prospectus which in the opinion of counsel for the Underwriters may thereby
be made necessary. The terms "Underwriters" and "Underwriter" as used in
this Agreement shall include any party substituted under this Section 11
with like effect as if it had originally been a party to this Agreement
with respect to such Offered Shares or Optional Shares.
12. Information Furnished by Underwriters. The statement set forth and
under the caption "Underwriting" in any Preliminary Prospectus and the
Prospectus constitutes the written information furnished by or on behalf of any
Underwriter referred to in subsection (ii) of Section 1(a) hereof and subsection
(a) and (b) of Section 8 hereof.
13. Notices. All communications hereunder, except as herein otherwise
specifically provided, shall be in writing and, if sent to any Underwriter,
shall be mailed, delivered, telexed, telegrammed, telegraphed or telecopied and
confirmed to such Underwriter, c/o ING Barings LLC, 00 Xxxx 00/xx/ Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, Attention: Xxxx Xxxxxxxxx, with a copy to Duane, Morris &
Heckscher LLP, 000 Xxxxx Xxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxxxxxx, Xxxxxxxxxxxx
00000-0000, Attention: Xxxxx X. Xxxxxxx, Esquire; if sent to the Company or the
Selling Stockholders shall be mailed, delivered, telexed, telegrammed,
telegraphed or telecopied and confirmed to FTI Consulting, Inc., 0000 Xxxxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxx, XX, with a copy to
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, 0000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000-
3600, Attention: Xxxxxxx X. Xxxxxxxx, Esquire.
14. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the several Underwriters, the Company, the Selling
Stockholders and the controlling persons, directors and officers referred to in
Section 8 hereof, and their respective successors, assigns, heirs and legal
representatives, and no other person shall have or be construed to have any
legal or equitable right, remedy or claim under or in respect of or by virtue of
this Agreement or any provision herein contained. The terms "successors" and
"assigns" shall not include any purchaser of the Shares merely because of such
purchase.
15. Definition of Business Day. For purposes of this Agreement, "business
day" means any day on which the American Stock Exchange, Inc. is opened for
trading.
-41-
16. Counterparts. This Agreement may be executed in one or more
counterparts and all such counterparts will constitute one and the same
instrument.
17. Waiver of Jury Trial. The Company, the Selling Stockholders and the
Underwriters each hereby irrevocably waive any right they may have to a trial by
jury in respect of any claim based upon or arising out of this Agreement or the
transactions contemplated hereby.
18. Consent to Jurisdiction. Any legal suit, action or proceeding arising
out of or based upon this Agreement or the transactions contemplated hereby
("Related Proceedings") may be instituted in the federal courts of the United
States of America located in the City and County of New York or the courts of
the State of New York in each case located in the City and County of New York
(collectively, the "Specified Courts"), and each party irrevocably submits to
the exclusive jurisdiction (except for proceedings instituted in regard to the
enforcement of a judgment of any such court (a "Related Judgment"), as to which
such jurisdiction is non-exclusive) of such courts in any such suit, action or
proceeding. Service of any process, summons, notice or document by mail to such
party's address set forth above shall be effective service of process for any
suit, action or other proceeding brought in any such court. The parties
irrevocably and unconditionally waive any objection to the laying of venue of
any suit, action or other proceeding in the Specified Courts and irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such suit, action or other proceeding brought in any such court has been brought
in an inconvenient forum.
19. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
contracts made and to be performed within the State of New York. This Agreement
may be executed in one or more counterparts, and if executed in more than one
counterpart, the executed counterparts shall together constitute a single
instrument. The descriptive headings in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
Time shall be of the essence of this Agreement.
This Agreement constitutes the entire agreement of the parties to this
Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter
hereof.
If any provision or portion of any provision of the Agreement, or the
application of any such provision or any portion thereof to any party or
circumstances, shall be held invalid or unenforceable, the remaining portion of
such provision and the remaining portion of such provision and the remaining
provisions of this agreement, and the application of such provision or portion
of such provision as is held invalid or unenforceable to any parties or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby and such remaining portion of such provision and
the remaining provisions of this Agreement shall continue to be valid and in
full force and effect.
-42-
If the foregoing correctly sets forth the understanding among the
Underwriters, the Company and the Selling Stockholders, please so indicate in
the space provided below for that purpose, whereupon this letter shall
constitute a binding agreement by and among the Underwriters, the Company and
the Selling Stockholders.
Very truly yours,
FTI CONSULTING, INC.
By:_________________________________
Xxxx X. Xxxx, XX, Chief Executive
Officer and Chairman of the Board
SELLING STOCKHOLDERS
By:_________________________________
Attorney-in-Fact
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
ING BARINGS LLC
By: ING BARINGS LLC Acting severally on behalf of itself and the several
Underwriters named in Schedule I hereto
By:__________________________
Authorized Officer
-43-
SCHEDULE I
Schedule of Underwriters
Number of Offered
Underwriter Shares to be Purchased
----------- ----------------------
ING Barings LLC.............................................................................
Xxxxxx Xxxxxxxxxx Xxxxx LLC.................................................................
_____________
Total ................................................................................. =============
-44-
SCHEDULE II
List of Persons Who Are to Deliver 90-Day Lock-Up Agreements
Called for Sections 5(a)(x), 5(b)(i) and 7(d)
Name
----
Xxxx X. Xxxx, XX
Xxxxxxx X. Xxxx
Xxxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxxxxx
Xxxxxx Xxxxx
Xxxxxxx Xxxxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxx, Xx.
Xxxxx X. X'Xxxxxx
Xxxxxx X. Xxxxxxxxxxx
Xxxxxx X. Xxxxxx
-45-
SCHEDULE III
Optional Shares
Name Shares
---- ------
FTI Consulting, Inc. 382,526
Xxxx X. Xxxx, XX 50,000
Xxxxxxx X. Xxxx 50,000
Xxxxx X. Xxxxxxx 50,000
Xxxxxx Xxxxx 50,000
Xxxxxxx Xxxxxxxx 50,000
Xxxxxx X. Xxxxxxxx 7,833
Xxxxxxxxxxx X. Xxxx 8,500
Xxxx X. Xxxxx 8,500
Xxxxxxx X. Xxxxxxxxxx 7,500
Xxxxxxx X. Xxxx 2,641
-46-
Exhibit A
---------
PRICE DETERMINATION AGREEMENT
-------, 2000
ING BARINGS LLC
XXXXXX XXXXXXXXXX XXXXX LLC
As Representatives of the
several Underwriters
00 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the Underwriting Agreement, dated ________, 2000 (the
"Underwriting Agreement"), among FTI Consulting, Inc., a Maryland corporation
(the "Company"), certain of the Company's stockholders who are listed in the
Company's Registration Statement (as defined in the Underwriting Agreement) (the
"Selling Stockholders") and the several Underwriters named in Schedule I thereto
or hereto (the "Underwriters"), for whom ING Barings LLC and Xxxxxx Xxxxxxxxxx
Xxxxx LLC are acting as representatives (the "Representatives"). The
Underwriting Agreement provides for the purchase by the Underwriters from the
Company and Selling Stockholders, subject to the terms and conditions set forth
therein, of an aggregate _________ of shares (the "Offered Shares") of the
Company's Common Stock, $.01 par value per share (the "Common Shares") and for
the purchase by the Underwriters, at their sole option to cover over-allotments
in the sale of the Offered Shares, from the Company, subject to the terms and
conditions set forth therein, of an aggregate of _________ Common Shares (the
"Optional Shares"). This Agreement is the Price Determination Agreement referred
to in the Underwriting Agreement.
Pursuant to the Underwriting Agreement, the undersigned agree with the
Representatives as follows:
(i) The public offering price per share for the Offered Shares and
the Optional Shares shall be $ _____________.
(ii) The purchase price per share for the Offered Shares and, if
the Representatives shall exercise their option as to the
Optional Shares, for the Optional Shares to be paid by the
several Underwriters shall be $ __________ representing
A-1
an amount equal to the public offering price set forth above,
less $ __________ per share.
The Company represents and warrants to each of the Underwriters that the
representations and warranties of the Company set forth in Section 1(a) of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
The Selling Stockholders represent and warrant to each of the Underwriters
that the representations and warranties of the Selling Stockholders set forth in
Section 1(b) of the Underwriting Agreement are accurate as though expressly made
at and as of the date hereof.
As contemplated by the Underwriting Agreement, attached as Schedule I is a
completed list of the several Underwriters, which shall be a part of this
Agreement and the Underwriting Agreement.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
If the foregoing is in accordance with your understanding of the agreement
among the Underwriters, the Company and the Selling Stockholders, please sign
and return to the Company a counterpart hereof, whereupon this instrument along
with all counterparts and together with the Underwriting Agreement, shall be a
binding agreement among the Underwriters, the Company and the Selling
Stockholders in accordance with its terms and the terms of the Underwriting
Agreement.
Very truly yours,
FTI CONSULTING, INC.
By:_____________________________
Xxxx X. Xxxx, Chief Executive
Officer and Chairman of the
Board
SELLING STOCKHOLDERS
By:_____________________________
Attorney-in-Fact
A-2
Confirmed as of the date first above mentioned:
ING BARINGS LLC
XXXXXX XXXXXXXXXX XXXXX LLC
By: ING BARINGS LLC Acting severally and on behalf of and the several
Underwriters named in Schedule I hereto
By:__________________
Authorized Officer
A-3
Exhibit B
---------
POWER OF ATTORNEY AND CUSTODY AGREEMENT
---------------------------------------
[Registrar]
_______________________
As Attorneys-in-Fact
c/o FTI Consulting, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
The undersigned is a shareholder of FTI Consulting, Inc., a Maryland
corporation (the "Company"), who proposes to sell certain shares (the "Shares")
of Common Stock of the Company (the "Common Stock") to a group of underwriters
(the "Underwriters") represented by ING Barings LLC and Xxxxxx Xxxxxxxxxx Xxxxx
LLC (together, the "Representatives"). The undersigned and the other
shareholders of the Company who propose to sell Common Stock to the Underwriters
are referred to herein collectively as the "Sellers."
The Underwriters propose to offer shares of Common Stock (including the
Shares) to the public. The undersigned understands that, in connection with such
offering, the Company has filed a Registration Statement on Form S-2 (the
"Registration Statement") with the Securities and Exchange Commission (the
"SEC") to register the shares of Common Stock (including the Shares) to be
offered under the Securities Act of 1933, as amended (the "Act").
The undersigned hereby acknowledges receipt of a copy of the Registration
Statement dated , 2000 and a copy of a draft as of , 2000 of an Underwriting
Agreement by and among the Company, the Sellers and the Underwriters (the "Draft
Underwriting Agreement").
i. Appointment of Attorney-in-Fact. In connection with the foregoing, the
-------------------------------
undersigned hereby constitutes and appoints each of and, in the event is
unwilling or unable to serve, , the true and lawful attorney-in-fact (each
herein referred to as the "Attorney-in-Fact") of the undersigned, with full
power and authority to act in the name of, for and on behalf of the undersigned
with respect to all matters arising in connection with the sale to the
Underwriters of the number of Shares set forth opposite the name of the
undersigned at the end of this Agreement, including, without limitation, the
power and authority:
(i) to sell, assign and transfer to the Underwriters the Shares
represented by the certificate(s) deposited by the undersigned with the
Custodian hereunder, at such purchase price
B-1
per Share to be paid by the Underwriters as the Attorney-in-Fact shall determine
in his sole and absolute discretion, subject to the limitation that such
purchase price be the same price per share of Common Stock as is paid by the
Underwriters to the Company pursuant to the Underwriting Agreement (as hereafter
defined), and to duly endorse (in blank or otherwise) the certificate or
certificates representing such Shares or a stock power or powers with respect
thereto;
(ii) for the purpose of effecting such sale, to execute and deliver
an Underwriting Agreement by and among the Company, the Sellers and the
Underwriters substantially in the form of the Draft Underwriting Agreement, with
such changes therein as the Attorney-in-Fact, in his sole and absolute
discretion, may determine to be necessary or appropriate (the "Underwriting
Agreement"), providing for (i) the sale pursuant thereto by the undersigned of
the Shares in accordance with such terms, including the purchase price to be
paid by the Underwriters, as the Attorney-in-Fact shall determine (subject to
the limitation aforesaid), (ii) the indemnification of and contribution to
certain expenses of the Underwriters by the Sellers in certain events, (iii) the
restriction of the undersigned from selling or otherwise disposing of, or
exercising any registration rights with respect to, any Shares of Common Stock
of the Company (other than the Shares) from the date hereof for a period of days
after the effective date of the Registration Statement without the prior written
consent of the Representatives, (iv) the making of all representations and
warranties provided in the Underwriting Agreement, and (v) other provisions
concerning the public offering of the Shares by the Underwriters, the execution
and delivery of the Underwriting Agreement by the Attorney-in-Fact to be
conclusive evidence with respect to his approval thereof, and to carry out and
comply with each and all of the provisions of the Underwriting Agreement;
(iii) in his or her sole and absolute discretion, to exercise any
power conferred upon and to take any action authorized or required to be taken
by the Sellers pursuant to the Underwriting Agreement, and, subject to authority
otherwise specifically reserved to the Custodian (as hereafter defined) under
this Agreement, to give such instructions to the Custodian as the Attorney-in-
Fact may determine with respect to (i) the transfer on the record books of the
Company of the Shares in order to effect such sale (including the names in which
new certificates for the Shares are to be issued and the denominations thereof),
(ii) the delivery by the Custodian to or for the account of the Underwriters of
the certificates for the Shares against receipt of the purchase price to be paid
therefor, (iii) the payment out of the proceeds of any sale to the Underwriters
of the expenses, if any, to be borne by the undersigned pursuant to the
Underwriting Agreement, if any, (iv) the remittance to the undersigned of the
balance of the proceeds from any sale of the Shares sold by the undersigned, and
(v) the return to the undersigned of new certificates representing the number of
Shares, if any, represented by the certificate(s) deposited with the Custodian
which are in excess of the number of Shares sold by the undersigned to the
Underwriters;
(iv) to retain legal counsel in connection with any and all matters
referred to herein;
(v) to make, execute, acknowledge and deliver all such other
contracts, orders, receipts, notices, requests, consents, instructions,
certificates, letters and other writings (including communications to the SEC,
the National Association of Securities Dealers, Inc. (the "NASD") and state
securities commissions) and amendments to the
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Underwriting Agreement, and to take all action that the Attorney-in-Fact may
consider necessary or appropriate in connection with or to carry out the sale of
the Shares to the Underwriters as fully as the undersigned could if then
personally present and acting; and
(vi) to make payment, on behalf of and for the account of the
undersigned, all costs and expenses payable by the undersigned pursuant to the
provisions of the Underwriting Agreement or otherwise incurred and deemed
appropriate by the Attorney-in-Fact, including any applicable stock transfer
taxes chargeable to the undersigned and any fees and expenses of the Custodian,
out of and to the extent of funds available from the sale of the Shares
(provided, however, that the Attorney-in-Fact shall not have any personal
liability to make such payments out of other funds), all in the sole and
absolute discretion of the Attorney-in-Fact (the undersigned hereby expressly
promising to repay the Attorney-in-Fact for any such payments made on behalf and
for the account of the undersigned by the Attorney-in-Fact).
Without limiting the foregoing authority, the Attorney-in-Fact is
authorized to (i) request on behalf of the undersigned acceleration of the
Registration Statement relating to the aforementioned offering of Common Stock
and (ii) advise the SEC of the reason the undersigned is selling the Shares.
ii. Appointment of Custodian; Deposit of Securities; Instructions
-------------------------------------------------------------
to the Company.
--------------
(i) The undersigned hereby appoints __________ to act as the
custodian (the "Custodian") of certificates representing the Shares on the terms
and subject to the conditions set forth in this Agreement.
(ii) The undersigned herewith delivers to the Custodian a
certificate or certificates representing the Shares, in negotiable form (with
signatures guaranteed by a commercial bank or trust company or by a firm that is
a member of a national securities exchange or the NASD, unless the Company has
delivered an indemnity agreement covering transfers of such shares that is
reasonably satisfactory to the Company's transfer agent). The certificate(s) are
to be held by the Custodian for the account of the undersigned and are to be
disposed of by the Custodian for the account of the undersigned and are to be
disposed of by the Custodian in accordance with this Agreement. Such
certificate(s) are listed on the last page of this Agreement.
(iii) When delivered to the Custodian, the undersigned's
certificate(s), together with certificates of the other Sellers, will be
accompanied by written instructions from the Attorney-in-Fact to the Company to
(i) issue a new stock certificate evidencing the Shares being sold and, upon
such issuance, to deliver such new certificate to the Custodian and (ii) issue
in the name of the undersigned and deliver to the Custodian, for the
undersigned, a new stock certificate(s) evidencing the Shares, if any, not being
sold to the Underwriters.
(iv) The undersigned hereby authorizes and directs the
Custodian to hold the certificate(s) deposited herewith in its custody, with
full power and in the name of, for and on behalf of the undersigned:
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1) to instruct the Company's transfer agent to issue
certificates representing the Shares in accordance with the directions of the
Underwriters, and to permit inspection and packaging of such certificates by the
Underwriters as provided in the Underwriting Agreement;
2) to deliver the Shares to the Underwriters in accordance
with the Underwriting Agreement, and to deliver, or cause to be delivered,
certificates representing the Shares to the Underwriters on the Closing Date
fixed in accordance with the Underwriting Agreement against receipt by the
Attorney-in-Fact of the consideration provided for in the Underwriting
Agreement;
3) to determine, in his or her sole and absolute discretion,
whether and the time and times when, the purpose for, and the manner in which
any power conferred herein to the Custodian shall be exercised, and the
conditions, provisions and covenants of any instrument or document which may be
executed by the Custodian pursuant hereto; and
4) to do all things and perform all acts pursuant to the
terms of this Agreement as the Custodian may in his or her sole and absolute
discretion deem appropriate, including, without limitation, the execution and
delivery of all certificates, receipts, instruments, letters of transmittal and
other documents and papers required, contemplated by, or deemed by the Custodian
appropriate in connection with this Agreement to the Underwriters, the Company's
transfer agent or any other person, and the employment of such counsel or other
person or firms as the Custodian in his or her sole and absolute discretion
shall deem necessary.
iii. Representations, Warranties and Covenants. The undersigned
-----------------------------------------
hereby represents, warrants, covenants and agrees that:
(i) The undersigned has read the representations and
warranties contained in the Draft Underwriting Agreement applicable to the
undersigned and understands the same, confirms that the same are true and
correct, and hereby authorizes the Attorney-in-Fact, acting on behalf of the
undersigned, to make such representations and warranties to the Underwriters in
form or substance as provided therein, with such additions to and changes in the
form of the Draft Underwriting Agreement as the Attorney-in-Fact in his or her
sole and absolute discretion shall determine;
(ii) The undersigned has read the Draft Underwriting Agreement
and understands the same, and hereby authorizes the Attorney-in-Fact to enter
into the Underwriting Agreement with the Underwriters on behalf of the
undersigned, subject to any limitations on the price to be paid for the Shares
set forth herein;
(iii) To assure compliance with Rule 10b-6 under the Securities
Exchange Act of 1934, as amended, the undersigned will not directly or
indirectly make bids for or purchases of or induce bids for or purchases of any
shares of Common Stock of the Company until the distribution of all shares of
Common Stock (including the Shares) being sold in the public offering has been
completed;
(iv) If requested, the undersigned will furnish to the
Attorney-in-Fact a letter, addressed to the SEC, setting forth the purpose or
purposes for which the undersigned is selling the Shares;
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(v) All consents, approvals, authorizations and orders
necessary for the execution and delivery by the undersigned of this Agreement
and the Underwriting Agreement, and for the sale and delivery of the Shares to
be sold by the undersigned under the Underwriting Agreement, have been obtained
and the undersigned has full right, power and authority to enter into this
Agreement, to authorize the Attorney-in-Fact to enter into the Underwriting
Agreement and to sell, assign, transfer and deliver the Shares;
(vi) The performance of this Agreement and the Underwriting
Agreement, and the consummation of the transactions herein and therein
contemplated, will not result in a breach or violation of any of the terms or
provisions of or constitute a default under any statute, indenture, mortgage,
deed of trust, note agreement or other agreement or instrument to which the
undersigned is a party or by which the undersigned or the property of the
undersigned is bound, or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the undersigned or the
property of the undersigned;
(vii) The undersigned has, and immediately prior to the Closing
Date (as such term is defined in the Underwriting Agreement) the undersigned
will have, valid, marketable title to the Shares, free and clear of any pledge,
lien, security interest, encumbrance, claim or equitable interest other than
pursuant to this Agreement and the Underwriting Agreement; and upon delivery of
such Shares hereunder and payment of the purchase price as herein contemplated,
each of the Underwriters will obtain valid, marketable title to the Shares
purchased by it from the undersigned, free and clear of any pledge, lien,
security interest, encumbrance, claim or equitable interest, including any
liability for estate or inheritance taxes, or any liability to or claims of any
creditor, devisee, legatee or beneficiary of the undersigned;
(viii) The undersigned has carefully read the prospectus
included in the Registration Statement and will carefully read each prospectus
contained in any amendment to the Registration Statement upon receipt thereof
from the Company (such prospectus and each prospectus contained in any
amendment, including any post-effective amendment, to the Registration Statement
through and after the effective date of the Registration Statement are
collectively referred to herein as the "Prospectus") and hereby represents and
warrants that all information relating to the undersigned (including, without
limitation, the information which is set forth in the Prospectus under
"Principal and Selling Shareholders") is and will be accurately set forth;
(ix) Neither the undersigned nor, to the best of the
undersigned's knowledge, any associate of the undersigned, is a member of the
NASD; the undersigned does not own stock or other securities of any NASD member
(other than stock or securities purchased in the open market); and the
undersigned has not made any outstanding subordinated loan to any NASD member;
(x) The undersigned has not distributed and will not
distribute any prospectus or other offering material in connection with the
offering and sale of the Common Stock other than the Prospectus or other
material permitted by the Act;
(xi) The undersigned will not directly or indirectly offer to
sell, sell, contract to sell or otherwise transfer or dispose of, any Common
Stock, any options or warrants to purchase Common Stock or any securities
convertible into or exchangeable for Common
B-5
Stock owned by the undersigned or with respect to which the undersigned has the
power of disposition within ____ days after the effective date of the
Registration Statement (otherwise than in private transactions to the
undersigned's spouse, children, descendants, parents or grandparents or to a
trust for the benefit of one or more of such persons, provided that each
transferee and other person acquiring an interest in any Common Stock during
such ____ day period agrees in writing to be bound by the provisions of this
letter agreement), other than sales made pursuant to the Underwriting Agreement
or with the prior written consent of the Representatives; and
(xii) The undersigned has not taken and will not take, directly
or indirectly, any action designed to or which has constituted or which might
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.
iv. Termination of Agreement.
------------------------
(i) This Agreement and all authority hereby conferred are
granted and conferred in recognition of the interests of the Underwriters, the
Company and the other Sellers, in consideration of those interests and for the
purpose of assuring completion of the transactions contemplated by the
Underwriting Agreement and this Agreement. This Agreement is coupled with an
interest and is irrevocable and all authority hereby conferred shall be
irrevocable and shall not be terminated by any act of the undersigned or by
operation of law, whether by death or the occurrence of any other event; if
after the execution hereof the undersigned shall die or any other such event
shall occur before the completion of the transactions contemplated by the
Underwriting Agreement and this Agreement, the Attorney-in-Fact and the
Custodian are nevertheless authorized and directed to complete all of such
transactions as if such death or other event had not occurred and regardless of
notice thereof.
(ii) Notwithstanding the foregoing, if the Underwriting
Agreement shall not be entered into, or if all of the transactions contemplated
by the Underwriting Agreement and this Agreement, including the sale of the
Shares, are not completed on or before November 30, 2000 then from and after
such date the undersigned shall have the power, by giving written notice to each
Attorney-in-Fact, to terminate this Agreement, subject, however, to all lawful
action done or performed by the Attorney-in-Fact pursuant hereto prior to the
actual receipt of such notice.
v. Limitation of Liability; Indemnification. The undersigned
----------------------------------------
agrees that whenever the Attorney-in-Fact or the Custodian may obtain the advice
of any such counsel as either shall select in connection with any matter arising
under the Underwriting Agreement or this Agreement, the Attorney-in-Fact or
Custodian shall not be liable for any action taken or omitted in accordance with
such advice. The undersigned agrees to indemnify and hold harmless the
Attorney-in-Fact and Custodian against any and all losses, claims, damages or
liabilities (including all costs, legal and other expenses) incurred as a result
of any action taken or omitted by the Attorney-in-Fact or Custodian in
accordance with the Underwriting Agreement or this Agreement (including, without
limitation, the establishment of the price under the Underwriting Agreement),
whether or not under the advice of counsel, except with respect to any losses,
claims, damages or liabilities which shall be finally adjudicated to be the
result of gross negligence or willful bad faith of the Attorney-in-Fact or
Custodian, respectively.
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vi. Applicable Law. The validity, enforceability,
--------------
interpretation and construction of this Agreement shall be determined in
accordance with the laws of the State of New York without regard to conflicts of
laws principles.
vii. Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of, and shall be binding upon, the undersigned and the undersigned's
heirs, executors, administrators, successors and assigns, as the case may be.
viii. Return of Undelivered Shares. If the Shares are not
----------------------------
accepted by the Underwriters against payment therefor in accordance with the
terms and provisions of the Underwriting Agreement, the Underwriting Agreement
shall be otherwise terminated pursuant to the provisions thereof, or the
undersigned shall terminate this Agreement and in accordance with Section 4(b)
hereof, the Custodian shall promptly return to the undersigned the
certificate(s) referred to in Section 2(b) of this Agreement and held by him or
her for the account of the undersigned hereunder.
ix. 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.
x. Ownership of Shares. Until delivery of the consideration
-------------------
provided for in the Underwriting Agreement has been made to the Attorney-in-Fact
by or for the account of the Underwriters, the undersigned shall remain the
owner of the Shares and shall have all rights thereto which are not inconsistent
with this Agreement.
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IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
and Custody Agreement to be executed as of this ______ day of _______, 2000.
SELLER
___________________________________
(Print Name)
___________________________________
(Signature)
(Signature(s) must correspond with either the name(s) in which the deposited
certificate(s) representing Shares were issued or, if different, the name of the
beneficial owner with investment discretion over the Shares.)
B-8
The certificate(s) representing shares of Common Stock delivered
herewith to the Custodian by the above Seller pursuant to this Power of
Attorney and Custody Agreement are identified as follows:
Total Number of Shares of Number of Shares to be Sold
Stock Certificate Common Stock Represented to Underwriters from such
Number by Certificate Certificate
------ ------------------------- ---------------------------
The undersigned, as Custodian, hereby acknowledges receipt of the
certificate(s) above identified, to be held and disposed of pursuant to the
directions in this Power of Attorney and Custody Agreement and hereby
agrees to act as Custodian in accordance with the terms of this Power of
Attorney and Custody Agreement as of this ____ day of _________, 2000.
[Registrar].
-----------
By:______________________________________
Name:
Title:
The undersigned hereby agrees to act as Attorney-in-Fact for the
above-named Seller in accordance with the terms of this Power of Attorney
and Custody Agreement as of this _____ day of _________, 2000.
__________________________________
_____________, as Attorney-in-Fact
__________________________________
_____________, as Attorney-in-Fact
B-9
Exhibit C
---------
LETTER AGREEMENT
PROVIDING FOR RESTRICTIONS ON
THE DISPOSITION OF STOCK
September ______, 2000
ING BARINGS LLC
XXXXXX XXXXXXXXXX XXXXX LLC
As Representatives of the
several Underwriters
00 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
In consideration of the agreement (the "Underwriters Agreement") of the
several Underwriters for which ING Barings LLC and Xxxxxx Xxxxxxxxxx Xxxxx LLC
(the "Representatives"), intend to act as Representatives, to underwrite a
proposed public offering (the "Offering") of common stock, $.01 par value (the
"Common Shares") of FTI Consulting, a Maryland corporation (the "Company"), as
contemplated by a registration statement with respect to such shares to be filed
with the Securities and Exchange Commission on Form S- (the "Registration
Statement"), the undersigned hereby agrees that the undersigned will not, for a
period of 90 days after the effective date of the Registration Statement,
without the prior written consent of the Representatives:
(i) directly or indirectly assign, transfer, offer, sell, agree to
sell, make any short sale, pledge, hypothecate or otherwise dispose
(collectively, a "Disposition") of any Common Shares of the Company or
securities convertible into or exchangeable for or any rights to acquire Common
Shares or
(ii) engage in any hedging or other transactions with respect to the
Common Shares that may have an impact on the market price of the Common Shares,
or that is designed to result in a Disposition of Common Shares, even if such
Common Shares would be disposed of by someone other than the undersigned,
including, without limitation, any short sale (whether or not against the box)
or any purchase, sale, or grant of any right (including, without limitation, any
put or call option) with respect to any Common Shares or with respect to any
security (other than
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a broad-based market basket or index) that includes, relates to or derives any
significant part of its value from Common Shares; provided, however, that bona
fide gifts to persons who agree in writing with the Representatives to be bound
by the provisions hereof, and sales of Common Shares pursuant to the
Underwriting Agreement, shall not be prohibited.
The undersigned agrees that this agreement shall be binding upon the
transferees, successors, assigns, heirs and personal representatives of the
undersigned.
In furtherance of the foregoing, the Company and its transfer agent are
hereby authorized to decline to make any transfer of securities if such transfer
would constitute a violation or breach of this letter agreement.
Very truly yours,
By:_______________________________
__________________________________
[Print Name]
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