EXHIBIT 1.1
AMERICAN HOME MORTGAGE HOLDINGS, INC.
SHARES OF COMMON STOCK
SHARES OF PREFERRED STOCK
UNDERWRITING AGREEMENT
________________, ____
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
[INSERT NAME OF ADDITIONAL REPRESENTATIVES]
as Representative[s] of the several Underwriters
[c/o Friedman, Billings, Xxxxxx & Co., Inc.]
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Dear Sirs:
American Home Mortgage Holdings, Inc., a Delaware corporation (the
"Company"), and certain stockholders of the Company listed on Schedule I hereto
(the "Selling Stockholders"), each confirm its agreement with each of the
Underwriters listed on Schedule II hereto (collectively, the "Underwriters"),
for whom Friedman, Billings, Xxxxxx & Co., Inc. are acting as representative (in
such capacity, the "Representative"), with respect to (i) the sale by the
Company and each Selling Stockholder of [INSERT NUMBER OF INITIAL SHARES TO BE
OFFERED] shares (the "Initial Shares") of (a) Common Stock, par value $.01 per
share, of the Company ("Common Stock") and (b) Preferred Stock, par value $1.00,
of the Company ("Preferred Stock") in the respective numbers of shares set forth
opposite the names of the Company and each such Selling Stockholder in Schedule
I hereto, and the purchase by the Underwriters, acting severally and not
jointly, of the respective number of shares of Common Stock and Preferred Stock
set forth opposite the names of the Underwriters in Schedule II hereto, and (ii)
the grant of the option described in Section 1(b) hereof to purchase all or any
part of [INSERT NUMBER OF OVER-ALLOTMENT SHARES] additional shares of Common
Stock or Preferred Stock to cover overallotments (the "Option Shares"), if any,
from the Company and each such Selling Stockholder, in the respective numbers of
shares of Common Stock and Preferred Stock set forth opposite the names of the
Company and each Selling Stockholder in Schedule I hereto, to the Underwriters,
acting severally and not jointly, in the respective numbers of shares of Common
Stock set forth opposite the names of the Underwriters in Schedule II hereto.
The [INSERT NUMBER OF INITIAL SHARES] shares of Common Stock and Preferred Stock
to be purchased by the Underwriters and all or any part of the [INSERT NUMBER OF
OPTION SHARES] shares of Common Stock or Preferred Stock subject to the option
described in Section l(b) hereof are hereinafter called, collectively, the
"Shares".
The Company understands that the Underwriters propose to make an
public offering of the Shares as soon as the Underwriters deem advisable after
this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
Commission"), a registration statement on Form S-3 (No. 333-________) and a
related preliminary prospectus for the registration of the Shares under the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations thereunder (the "Securities Act Regulations"). The Company has
prepared and filed such amendments thereto, if any, and such amended preliminary
prospectuses, if any, as may have been required to the date hereof, and will
file such additional amendments thereto and such amended prospectuses as may
hereafter be required. The registration statement has been declared effective
under the Securities Act by the Commission. The registration statement as
amended at the time it became effective (including all information deemed
(whether by incorporation by reference or otherwise) to be a part of the
registration statement at the time it became effective pursuant to Rule 430A(b)
of the Securities Act Regulations) is hereinafter called the "Registration
Statement," except that, if the Company files a post-effective amendment to such
registration statement which becomes effective prior to the Closing Time (as
defined below), "Registration Statement" shall refer to such registration
statement as so amended. Any registration statement filed pursuant to Rule
462(b) of the Securities Act Regulations is hereinafter called the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the 462(b) Registration Statement. Each prospectus included in the
registration statement, or amendments thereof or supplements thereto, before it
became effective under the Securities Act and any prospectus filed with the
Commission by the Company with the consent of the Underwriters pursuant to Rule
424(a) of the Securities Act Regulations is hereinafter called the "Preliminary
Prospectus." The term "`Prospectus" means the final prospectus, as first filed
with the Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the
Securities Act Regulations, and any amendments thereof or supplements thereto.
The Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus.
Each Selling Stockholder has executed and delivered a Custody
Agreement and a Power of Attorney in the form attached hereto as Exhibit A
(collectively, the "Agreement and Power of Attorney") pursuant to which each
Selling Stockholder party thereto has placed the Initial Shares and Option
Shares to be sold by it pursuant to this Agreement in custody and appointed the
persons designated therein as a committee (the "Committee") with the authority
to execute and deliver this Agreement on behalf of such Selling Stockholder and
to take certain other actions with respect thereto and hereto.
The Company, the Selling Stockholders and the Underwriters agree as
follows:
1. Sale and Purchase:
(a) Initial Shares. Upon the basis of the warranties and
representations and other terms and conditions herein set forth, at the purchase
price per share of $________ for the Common Stock and at the purchase price per
share of $________ for the Preferred Stock, the Company agrees to sell to the
Underwriters the number of Initial Shares set forth in Schedule I opposite its
name and each Selling Stockholder agrees to sell to the Underwriters the number
of Initial Shares set forth in Schedule I opposite such Selling Stockholder's
name, and each Underwriter agrees, severally and not jointly, to purchase from
the Company and the Selling Stockholders the number of Initial Shares set forth
in Schedule II opposite such Underwriter's name, plus any additional number of
Initial Shares which such Underwriter may become obligated to purchase pursuant
to the provisions of Section 8 hereof, subject in each case, to such adjustments
among the Underwriters as the Representative in its sole discretion shall make
to eliminate any sales or purchases of fractional shares. The Underwriters may
from time to time increase or decrease the public offering price after the
initial public offering to such extent as the Underwriters may determine.
(b) Option Shares. In addition, upon the basis of the warranties and
representations and other terms and conditions herein set forth, at the purchase
price per share set forth in paragraph (a), the Company and each Selling
Stockholder hereby grants an option to purchase, in the respective numbers of
shares of Common Stock and Preferred Stock set forth opposite the names of the
Company and each Selling Stockholder in Schedule I hereto, to the Underwriters,
acting severally and not jointly, in the respective numbers of shares of Common
Stock set forth opposite the names of the Underwriters in Schedule II hereto,
plus any additional number of Option Shares which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 8 hereof. The option
hereby granted will expire 30 days after the date hereof and may be exercised in
whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Shares upon notice by the Representative to the
Company setting forth the number of Option Shares as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Shares. Any such time and date of delivery (a "Date of
Delivery") shall be determined by the Representative, but shall not be later
than three full business days (or earlier, without the consent of the Company,
than two full business days) after the exercise of said option, nor in any event
prior to the Closing Time, as hereinafter defined. If the option is exercised as
to all or any portion of the Option Shares, the Company and each Selling
Stockholder will sell that proportion of the total number of Option Shares then
being purchased which the number of Initial Shares set forth in Schedule I
opposite the name of the Company or such Selling Stockholder bears to the total
number of Initial Shares, and each of the Underwriters, acting severally and not
jointly, will purchase that proportion of the total number of Option Shares then
being purchased which the number of Initial Shares set forth in Schedule II
opposite the name of such Underwriter bears to the total number of Initial
Shares, subject in each case to such adjustments among the Underwriters as the
Representative in its sole discretion shall make to eliminate any sales or
purchases of fractional shares. The Underwriters may from time to time increase
or decrease the public offering price of the Option Shares after the initial
public offering to such extent as the Underwriters may determine.
2. Payment and Delivery:
(a) Initial Shares and Warrants. Payment of the purchase price for the
Initial Shares shall be made to the Company and the Selling Stockholders by wire
transfer of immediately available funds or certified or official bank check
payable in federal (same-day) funds at the offices of [ ], Underwriters' Counsel
located at [ ] (unless another place shall be agreed upon by the Representative
and the Company) against delivery of the certificates for the Initial Shares to
the Representative for the respective accounts of the Underwriters. Such payment
and delivery shall be made at 9:30 a.m., New York City time, on the third
(fourth, if pricing occurs after 4:30 p.m., New York City time) business day
after the date hereof (unless another time, not later than ten business days
after such date, shall be agreed to by the Representative and the Company). The
time at which such payment and delivery are actually made is hereinafter
sometimes called the "Closing Time." Certificates for the Initial Shares shall
be delivered to the Representative in definitive form registered in such names
and in such denominations as the Representative shall specify. For the purpose
of expediting the checking of the certificates for the Initial Shares by the
Representative, the Company agrees to make such certificates available to the
Representative for such purpose at least one full business day preceding the
Closing Time.
(b) Option Shares. In addition, payment of the purchase price for the
Option Shares shall be made to the Company by wire transfer of immediately
available funds or certified or official bank check payable in federal
(same-day) funds at the offices of Underwriters' counsel located at [ ] (unless
another place shall be agreed upon by the Representative and the Company),
against delivery of the certificates for the Option Shares to the Representative
for the respective accounts of the Underwriters. Such payment and delivery shall
be made at 9:30 a.m., New York City time, on each Date of Delivery determined
pursuant to Section 1(b) above. Certificates for the Option Shares shall be
delivered to the Representative in definitive form registered in such names and
in such denominations as the Representative shall specify. For the purpose of
expediting the checking of the certificates for the Option Shares by the
Representative, the Company agrees to make such certificates available to the
Representative for such purpose at least one full business day preceding the
relevant Date of Delivery.
3. Representations and Warranties of the Company and the Selling
Stockholders:
A. The Company and each Selling Stockholder, jointly and severally,
represents and warrants to the Underwriters that:
(a) the Company has an authorized capitalization as set forth in the
Prospectus under the caption "Capitalization;" the outstanding shares of capital
stock of the Company and its Subsidiaries have been duly and validly authorized
and issued and are fully paid and non-assessable, and all of the outstanding
shares of capital stock of the Subsidiaries are directly or indirectly owned of
record and beneficially by the Company; except as disclosed in the Prospectus,
there are no outstanding (i) securities or obligations of the Company or any of
its Subsidiaries convertible into or exchangeable for any capital stock of the
Company or any such Subsidiary, (ii) warrants, rights or options to subscribe
for or purchase from the Company or any such Subsidiary any such capital stock
or any such convertible or exchangeable securities or obligations, or (iii)
obligations of the Company or any such Subsidiary to issue any shares of capital
stock, any such convertible or exchangeable securities or obligation, or any
such warrants, rights or options;
(b) the Company and the Company's Subsidiaries (all of which are named
in an exhibit to the Registration Statement) each has been duly incorporated and
is validly existing as a corporation in good standing under the laws of its
respective jurisdiction of incorporation with full corporate power and authority
to own its respective properties and to conduct its respective business as
described in the Registration Statement and Prospectus and, in the case of the
Company, to execute and deliver this Agreement and to consummate the
transactions contemplated hereby;
(c) the Company and all of its Subsidiaries are duly qualified or
licensed by each jurisdiction in which they conduct their respective businesses
and in which the failure, individually or in the aggregate, to be so qualified
or licensed could have a material adverse effect on the assets, business,
operations, earnings, prospects, properties or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole, and the Company
and its Subsidiaries are duly qualified, and are in good standing, in each
jurisdiction in which they own or lease real property or maintain an office and
in which such qualification is necessary, except where the failure to be so
qualified and in good standing would not have a material adverse effect on the
assets, business, operations, earnings, prospects, properties or condition
(financial or otherwise) of the Company and its Subsidiaries taken as a whole;
except as disclosed in the Prospectus, no Subsidiary is prohibited or
restricted, directly or indirectly, from paying dividends to the Company, or
from making any other distribution with respect to such Subsidiary's capital
stock or from repaying to the Company or any other Subsidiary any amounts which
may from time to time become due under any loans or advances to such Subsidiary
from the Company or such other Subsidiary, or from transferring any such
Subsidiary's property or assets to the Company or to any other Subsidiary; other
than as disclosed in the Prospectus, the Company does not own, directly or
indirectly, any capital stock or other equity securities of any other
corporation or any ownership interest in any partnership, joint venture or other
association;
(d) the Company and its Subsidiaries are in compliance in all material
respects with all applicable laws, rules, regulations, orders, decrees and
judgments, including those relating to transactions with affiliates;
(e) neither the Company nor any of its Subsidiaries is in breach of or
in default under (nor has any event occurred which with notice, lapse of time,
or both would constitute a breach of, or default under), its respective articles
of incorporation or charter or by-laws, or in the performance or observance of
any obligation, agreement, covenant or condition contained in any license,
indenture, mortgage, deed of trust, loan or credit agreement or other agreement
or instrument to which the Company or any of its Subsidiaries is a party or by
which any of them or their respective properties is bound, except for such
breaches or defaults which would not have a material adverse effect on the
assets, business, operations, earnings, prospects, properties or condition
(financial or otherwise) of the Company and its Subsidiaries taken as a whole,
and the execution, delivery and performance of this Agreement, and consummation
of the transactions contemplated hereby will not conflict with, or result in any
breach of, or constitute a default under (nor constitute any event which with
notice, lapse of time, or both would constitute a breach of, or default under),
(i) any provision of the articles of incorporation or charter or bylaws of the
Company or any of its Subsidiaries, or (ii) any provision of any license,
indenture, mortgage, deed of trust, loan or credit agreement or other agreement
or instrument to which the Company or any of its Subsidiaries is a party or by
which any of them or their respective properties may be bound or affected, or
under any federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company or any of its Subsidiaries,
except in the case of this clause (ii) for such breaches or defaults which would
not have a material adverse effect on the assets, business, operations,
earnings, prospects, properties or condition (financial or otherwise) of the
Company and its Subsidiaries taken as a whole; or result in the creation or
imposition of any lien, charge, claim or encumbrance upon any property or asset
of the Company or its Subsidiaries;
(f) this Agreement has been duly authorized, executed and delivered by
the Company and is a legal, valid and binding agreement of the Company
enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, and by general principles equity, and except to the
extent that the indemnification and contribution provisions of Section 9 hereof
may be limited by federal or state securities laws and public policy
considerations in respect thereof;
(g) no approval, authorization, consent or order of or filing with any
federal, state or local governmental or regulatory commission, board, body,
authority or agency is required in connection with the Company's execution,
delivery and performance of this Agreement, its consummation of the transaction
contemplated hereby, and its sale and delivery of the Shares, other than (A)
such as have been obtained, or will have been obtained at the Closing Time or
the relevant Date of Delivery, as the case may be, under the Securities Act, (B)
such approvals as have been obtained in connection with the approval of the
quotation of the Shares on the Nasdaq Stock Market and (C) any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Underwriters;
(h) each of the Company and its Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all necessary
filings required under any federal, state or local law, regulation or rule, and
has obtained all necessary authorizations, consents and approvals from other
persons, required in order to conduct their respective businesses as described
in the Prospectus, except to the extent that any failure to have any such
licenses, authorizations, consents or approvals, to make any such filings or to
obtain any such authorizations, consents or approvals would not, individually or
in the aggregate, have a material adverse effect on the assets, business,
operations, earnings, prospects, properties or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole; neither the
Company nor any of its Subsidiaries is required by any applicable law to obtain
accreditation or certification from any governmental agency or authority in
order to provide the products and services which it currently provides or which
it proposes to provide as set forth in the Prospectus; neither the Company nor
any of its Subsidiaries is in violation of, in default under, or has received
any notice regarding a possible violation, default or revocation of any such
license, authorization, consent or approval or any federal, state, local or
foreign law, regulation or rule or any decree, order or judgment applicable to
the Company or any of its Subsidiaries the effect of which could be material and
adverse to the assets, business, operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and its Subsidiaries taken as
a whole; and no such license, authorization, consent or approval contains a
materially burdensome restriction that is not adequately disclosed in the
Registration Statement and the Prospectus;
(i) each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the Securities Act and no stop
order suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company or any Selling Stockholder, are threatened by the
Commission, and any request on the part of the Commission for additional
information has been complied with;
(j) the Preliminary Prospectus and the Registration Statement comply
and the Prospectus and any further amendments or supplements thereto will, when
they have become effective or are filed with the Commission, as the case may be,
comply in all material respects with the requirements of the Securities Act and
the Securities Act Regulations; the Registration Statement did not, and any
amendment thereto will not, in each case as of the applicable effective date,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; and
the Preliminary Prospectus does not, and the Prospectus or any amendment or
supplement thereto will not, as of the applicable filing date and at the Closing
Time and on each Date of Delivery (if any), contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Company
makes no warranty or representation with respect to any statement contained in
the Registration Statement or the Prospectus in reliance upon and in conformity
with the information concerning the Underwriters and furnished in writing by or
on behalf of the Underwriters through the Representative to the Company
expressly for use in the Registration Statement or the Prospectus (that
information being limited to that described in the last sentence of the first
paragraph of Section 9(b) hereof);
(k) the Preliminary Prospectus was and the Prospectus delivered to the
Underwriters for use in connection with this offering will be identical to the
versions of the Preliminary Prospectus and Prospectus created to be transmitted
to the Commission for filing via the Electronic Data Gathering Analysis and
Retrieval System ("XXXXX"), except to the extent permitted by Regulation S-T;
(l) all legal or governmental proceedings, contracts or documents of a
character required to be filed as exhibits to the Registration Statement or to
be summarized or described in the Prospectus have been so filed, summarized or
described as required;
(m) there are no actions, suits, proceedings, inquiries or
investigations pending or, to the knowledge of the Company or any Selling
Stockholder, threatened against the Company or any of its Subsidiaries or any of
their respective officers and directors or to which the properties, assets or
rights of any such entity are subject, at law or in equity, before or by any
federal, state. local or foreign governmental or regulatory commission, board,
body, authority, arbitral panel or agency which could result in a judgment,
decree, award or order having a material adverse effect on the assets, business,
operations, earnings, prospects, properties or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole;
(n) the financial statements, including the notes thereto, included in
the Registration Statement and the Prospectus present fairly the consolidated
financial position of the entities to which such financial statements relate
(the "Covered Entities") as of the dates indicated and the consolidated results
of operations and changes in financial position and cash flows of the Covered
Entities for the periods specified; such financial statements have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis during the periods involved and in accordance with Regulation
S-X promulgated by the Commission; the financial statement schedules included in
the Registration Statement and the amounts in the Prospectus under the captions
"Prospectus Summary - Summary Financial Information" and "Selected Financial
Information" fairly present the information shown therein and have been compiled
on a basis consistent with the financial statements included in the Registration
Statement and the Prospectus; the unaudited pro forma financial information
(including the related notes) included in the Prospectus or any Preliminary
Prospectus complies as to form in all material respects to the applicable
accounting requirements of the Securities Act and the Securities Act
Regulations, and management of the Company believes that the assumptions
underlying the pro forma adjustments are reasonable; such pro forma adjustments
have been properly applied to the historical amounts in the compilation of the
information and such information fairly presents with respect to the Company and
the Subsidiaries, the financial position, results of operations and other
information purported to be shown therein at the respective dates and for the
respective periods specified;
(o) Deloitte & Touche, LLP whose reports on the consolidated financial
statements of the Company and its Subsidiaries are filed with the Commission as
part of the Registration Statement and Prospectus, are and were during the
periods covered by their reports independent public accountants as required by
the Securities Act and the Securities Act Regulations;
(p) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as may be
otherwise stated in the Registration Statement or Prospectus, there has not been
(A) any material adverse change in the assets, business, operations, earnings,
prospects, properties or condition (financial or otherwise), present or
prospective, of the Company and its Subsidiaries taken as a whole, whether or
not arising in the ordinary course of business, (B) any transaction, which is
material to the Company and its Subsidiaries taken as a whole, contemplated or
entered into by the Company or any of its Subsidiaries, (C) any obligation,
contingent or otherwise, directly or indirectly incurred by the Company or any
of its Subsidiaries, which is material to the Company and its Subsidiaries taken
as a whole or (D) any dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock;
(q) the Shares conform in all material respects to the description
thereof contained in the Registration Statement and the Prospectus;
(r) there are no persons with registration or other similar rights to
have any equity securities, including securities which are convertible into or
exchangeable for equity securities, registered pursuant to the Registration
Statement or otherwise registered by the Company under the Securities Act, (i)
except for certain of the Selling Stockholders, to the extent of the equity
securities to be offered and sold by such Selling Stockholders as contemplated
by this Agreement, and (ii) except for those registration or similar rights
which have been waived with respect to the offering contemplated by this
Agreement, all of which registration or similar rights described in clauses (i)
and (ii) are fairly summarized in the Prospectus;
(s) the Shares have been duly authorized and, when issued and duly
delivered against payment therefor as contemplated by this Agreement, will be
validly issued, fully paid and nonassessable, free and clear of any pledge,
lien, encumbrance, security interest or other claim, and the issuance and sale
of the Shares by the Company is not subject to preemptive or other similar
rights arising by operation of law, under the articles of incorporation or
by-laws of the Company, under any agreement to which the Company or any of its
Subsidiaries is a party or otherwise;
(t) the Company has not taken, and will not take, directly or
indirectly, any action which is designed to or which has constituted or which
might reasonably be expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Shares;
(u) neither the Company nor any of its affiliates (i) is required to
register as a "broker" or "dealer" in accordance with the provisions of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the rules
and regulations thereunder, or (ii) directly, or indirectly through one or more
intermediaries, controls or has any other association with (within the meaning
of Article I of the By-laws of the National Association of Securities Dealers,
Inc. (the "NASD")) any member firm of the NASD;
(v) the Company has not relied upon the Representative or legal
counsel for the Representative for any legal, tax or accounting advice in
connection with the offering and sale of the Shares;
(w) any certificate signed by any officer of the Company or any
Subsidiary delivered to the Representative or to counsel for the Underwriters
pursuant to or in connection with this Agreement shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby;
(x) the form of certificate used to evidence the Common Stock complies
in all material respects with all applicable statutory requirements, with any
applicable requirements of the articles of incorporation and by-laws of the
Company and the requirements of the Nasdaq Stock Market;
(y) the Company and the Subsidiaries have good and marketable title in
fee simple to all real property, if any, and good title to all personal property
owned by them, in each case free and clear of all liens, security interests,
pledges, charges, encumbrances, mortgages and defects, except such as are
disclosed in the Prospectus or such as do not materially and adversely affect
the value of such property and do not interfere with the use made or proposed to
be made of such property by the Company and the Subsidiaries; and any real
property and buildings held under lease by the Company or any Subsidiary are
held under valid, existing and enforceable leases, with such exceptions as are
disclosed in the Prospectus or are not material and do not interfere with the
use made or proposed to be made of such property and buildings by the Company or
such Subsidiary;
(z) the descriptions in the Registration Statement and the Prospectus
of the contracts, leases and other legal documents therein described present
fairly the information required to be shown, and there are no contracts, leases,
or other documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement which are not described or filed as required;
(aa) the Company and each Subsidiary owns or possesses adequate
license or other rights to use all patents, trademarks, service marks, trade
names, copyrights, software and design licenses, trade secrets, manufacturing
processes, other intangible property rights and know-how (collectively
"Intangibles") necessary to entitle the Company and each Subsidiary to conduct
its business as described in the Prospectus, and neither the Company, nor any
Subsidiary, has received notice of infringement of or conflict with (and neither
the Company nor any Selling Stockholder knows of any such infringement of or
conflict with) asserted rights of others with respect to any Intangibles which
could materially and adversely affect the business, prospects, properties,
assets, results of operations or condition (financial or otherwise) of the
Company or any Subsidiary;
(bb) the Company and each of its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences;
(cc) each of the Company and the Subsidiaries has filed on a timely
basis all necessary federal, state, local and foreign income and franchise tax
returns required to be filed through the date hereof and have paid all taxes
shown as due thereon; and no tax deficiency has been asserted against any such
entity, nor does any such entity nor any Selling Stockholder know of any tax
deficiency which is likely to be asserted against any such entity which if
determined adversely to an, such entity, could materially adversely affect the
business, prospects, properties, assets, results of operations or condition
(financial or otherwise) of any such entity, respectively; all tax liabilities
are adequately provided for on the respective books of such entities; [the
Company has duly and properly filed an election to be taxed as an S corporation
for federal and state income tax purposes (each an "S Election"), and each such
S Election has been and will be in full force and effect since its date of
election (each an "S Election Date"), without interruption through the day prior
to the Closing Date; there has not been any termination of any such S Election,
including any inadvertent termination which has been reinstated under Section
1362 of the Code and the rules and regulations promulgated thereunder and the
corresponding provisions of state income tax laws; from its inception to the S
Election Date, the Company was taxable as a C corporation for federal and state
income tax purposes;
(dd) each of the Company and its Subsidiaries maintain insurance
(issued by insurers of recognized financial responsibility) of the types and in
the amounts generally deemed adequate for their respective businesses and
consistent with insurance coverage maintained by similar companies in similar
businesses, including, but not limited to, insurance covering real and personal
property owned or leased by the Company and its Subsidiaries against theft,
damage, destruction, acts of vandalism and all other risks customarily insured
against, all of which insurance is in full force and effect;
(ee) neither the Company nor any of its Subsidiaries has violated, or
received notice of any violation with respect to, any applicable environmental,
safety or similar law applicable to the business of the Company or any of its
Subsidiaries, nor any federal or state law relating to discrimination in the
hiring, promotion or pay of employees, nor any applicable federal or state wages
and hours law, nor any provisions of the Employee Retirement Income Security Act
or the rules and regulations promulgated thereunder, nor any state law
precluding the denial of credit due to the neighborhood in which a property is
situated, the violation of any of which could have a material adverse effect on
the business, operations, earnings, prospects, properties or condition
(financial or otherwise) of the Company and its Subsidiaries, taken as a whole;
(ff) neither the Company nor any of its Subsidiaries nor any officer
or director purporting to act on behalf of the Company or any of its
Subsidiaries has at any time; (i) made any contributions to any candidate for
political office, or failed to disclose fully any such contributions, in
violation of law, (ii) made any payment to any state, federal or foreign
governmental officer or official, or other person charged with similar public or
quasi-public duties, other than payments required or allowed by applicable law,
(iii) made any payment outside the ordinary course of business to any investment
officer or loan broker or person charged with similar duties of any entity to
which the Company or any of its Subsidiaries sells or from which the Company or
any of its Subsidiaries buys loans or servicing arrangements for the purpose of
influencing such agent, officer, broker or person to buy loans or servicing
arrangements from or sell loans to the Company or any of its Subsidiaries, or
(iv) engaged in any transactions, maintained any bank account or used any
corporate funds except for transactions, bank accounts and funds which have been
and are reflected in the normally maintained books and records of the Company
and its Subsidiaries;
(gg) except as otherwise disclosed in the Prospectus, there are no
material outstanding loans or advances or material guarantees of indebtedness by
the Company or any of its Subsidiaries to or for the benefit of any of the
officers or directors of the Company or any of its Subsidiaries or any of the
members of the families of any of them;
(hh) neither the Company nor any of its Subsidiaries nor, to the
knowledge of the Company or any Selling Stockholder, any employee or agent of
the Company or any of its Subsidiaries, has made any payment of funds of the
Company or of any Subsidiary or received or retained any funds in violation of
any law, rule or regulation or of a character required to be disclosed in the
Prospectus;
(ii) all securities issued by the Company, any of its Subsidiaries or
any trusts established by the Company or any Subsidiary, have been issued and
sold in compliance with (i) all applicable federal and state securities laws,
(ii) the laws of the applicable jurisdiction of incorporation of the issuing
entity and, (iii) to the extent applicable to the issuing entity, the
requirements of the Nasdaq Stock Market;
(jj) in connection with this offering, the Company has not offered and
will not offer its Common Stock or any other securities convertible into or
exchangeable or exercisable for Common stock in a manner in violation of the
Securities Act. The Company has not distributed and will not distribute any
Prospectus or other offering material in connection with the offer and sale of
the Shares;
(kk) the Company has complied and will comply with all the provisions
of Florida Statutes, Section 517.075 (Chapter 92-198, Laws of Florida). Neither
the Company nor any of its Subsidiaries or affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba;
(ll) the Company has not incurred any liability for any finder's fees
or similar payments in connection with the transactions herein contemplated;
(mm) no relationship, direct or indirect, exists between or among the
Company or any of its Subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its Subsidiaries
on the other hand, which is required by the Securities Act and the Securities
Act Regulations to be described in the Registration Statement and the Prospectus
and which is not so described;
(nn) neither the Company nor any of the Subsidiaries is and, after
giving effect to the offering and sale of the Shares, will be an "investment
company" or an entity "controlled" by and "investment company", as such terms
are defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act"); and
(oo) there are no existing or, to the knowledge of the Company or any
Selling Stockholder, threatened labor disputes with the employees of the Company
or any of its Subsidiaries which are likely to have individually or in the
aggregate a material adverse effect on assets, business, operations, earnings,
prospects, properties or condition (financial or otherwise) of the Company and
its Subsidiaries taken as a whole.
B. Each Selling Stockholder represents and warrants to the Underwriters
that:
(a) Such Selling Stockholder has full power and authority to enter
into this Agreement and the Agreement and Power of Attorney to which it is a
party. All authorizations and consents necessary for the execution and delivery
by such Selling Stockholder of the Agreement and Power of Attorney, and for the
execution of this Agreement on behalf of such Selling Stockholder have been
given. Each of the Agreement and Power of Attorney and this Agreement has been
duly authorized, executed and delivered by or on behalf of such Selling
Stockholder and constitutes a valid and binding agreement of such Selling
Stockholder and is enforceable against such Selling Stockholder in accordance
with the terms thereof and hereof, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally, and by general principles equity, and except to the extent
that the indemnification and contribution provisions of Section 9 hereof may be
limited by federal or state securities laws and public policy considerations in
respect thereof;
(b) Such Selling Stockholder now has, and at the Closing Time or the
applicable Date of Delivery will have, (i) good and marketable title to the
Common Shares to be sold by such Selling Stockholder hereunder, free and clear
of all liens, encumbrances and claims whatsoever (other than pursuant to the
Agreement and Power of Attorney), and (ii) full legal right and power, and all
authorizations and approvals required by law, to sell, transfer and deliver such
Common Shares to the Underwriters hereunder and to make the representations,
warranties and agreements made by such Selling Stockholder herein. Upon the
delivery of and payment for such Common Shares hereunder, such Selling
Stockholder will deliver good and marketable title thereto, free and clear of
any pledge lien, encumbrance, security interest or other claim.
(c) At the Closing Time or the applicable Date of Delivery, all stock
transfer or other taxes (other than income taxes) which are required to be paid
in connection with the sale and transfer of the Common Shares to be sold by such
Selling Stockholder to the Underwriters hereunder will have been fully paid or
provided for by such Selling Stockholder and all laws imposing such taxes will
have been fully complied with.
(d) The performance of this Agreement and the consummation of the
transactions contemplated hereby will not conflict with, or result in any breach
of, or constitute a default under (nor constitute any event which with notice,
lapse of time, or both would constitute a breach of, or default under), (i) any
provision of the certificate or articles of incorporation, other charter or
similar constitutive documents, or the bylaws of the Selling Stockholder, or
(ii) any provision of any license, indenture, mortgage, deed of trust, loan or
credit agreement or other agreement or instrument to which the Selling
Stockholder is a party or by which it or its properties may be bound or
affected, or under any federal, state, local or foreign law, regulation or rule
or any decree, judgment or order applicable to the Selling Stockholder; or
result in the creation or imposition of any lien, charge, claim or encumbrance
upon any property or asset of the Selling Stockholder;
(e) no approval, authorization, consent or order of or filing with any
federal, state or local governmental or regulatory commission, board, body,
authority or agency is required in connection with the Selling Stockholder's
execution, delivery and performance of this Agreement, its consummation of the
transaction contemplated hereby, and its sale and delivery of the Shares, other
than (i) such as have been obtained, or will have been obtained at the Closing
Time or the relevant Date of Delivery, as the case may be, under the Securities
Act, (ii) such approvals as have been obtained in connection with the approval
of the quotation of the Shares on the Nasdaq Stock Market and (iii) any
necessary qualification under the securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the Underwriters;
(f) Such Selling Stockholder (i) has carefully reviewed the
representations and warranties of the Company contained in this Agreement and
has no reason to believe that such representations and warranties are not true
and correct, (ii) is familiar with the Registration Statement and the
Prospectus, (iii) has no knowledge of any material fact, condition or
information not disclosed in the Registration Statement or the Prospectus which
has had or may have a material adverse effect on the business, properties,
condition (financial or otherwise), results of operations or prospects of the
Company and its Subsidiaries taken as a whole, and (iv) is not prompted to sell
shares of Common Stock by any information concerning the Company which is not
set forth in the Registration Statement or the Prospectus;1
-----------------------
1 This representation may not be needed if all of the Selling Stockholders are
jointly and severally making the representations and warranties being made by
the Company. If less than all of the Selling Stockholders are making the Company
representations, then this representation should be given by all other Selling
Stockholders.
-----------------------
(g) All material information with respect to such Selling Stockholder
contained in the Registration Statement and the Prospectus (as amended or
supplemented, if the Company shall have filed with the Commission any amendment
or supplement thereto) complied and will comply in all material respects with
all applicable provisions of the Securities Act and the Securities Act
Regulations, contains and will contain all statements of material fact required
to be stated therein in accordance with the Securities Act and the Securities
Act Regulations, and does not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading;
(h) Other than as permitted by the Securities Act and the Securities
Act Regulations, such Selling Stockholder has not distributed and will not
distribute any preliminary prospectus, the Prospectus or any other offering
material in connection with the offering and sale of the Shares. Such Selling
Stockholder has not taken, directly or indirectly, any action intended, or which
might reasonably be expected, to cause or result in, under the Securities Act,
the Securities Act Regulations or otherwise, or which has constituted,
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares;
(i) Certificates in negotiable form for the Shares to be sold
hereunder by such Selling Stockholder have been placed in custody, for the
purpose of making delivery of such Shares under this Agreement and under the
Agreement and Power of Attorney which appoints [INSERT NAME OF CUSTODIAN], as
custodian (the "Custodian"), for such Selling Stockholder; such Selling
Stockholder agrees that the Shares represented by the certificates held in
custody for him or 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 Committee, the Underwriters, each other Selling Stockholder and
the Company, that the arrangements made by such Selling Stockholder for such
custody and the appointment of the Custodian and the Committee by such Selling
Stockholder are irrevocable, and that the obligations of such Selling
Stockholder hereunder shall not be terminated by operation of law, whether by
the death, disability, incapacity or liquidation of any Selling Stockholder or
the occurrence of any other event; if any Selling Stockholder should die, become
disabled or incapacitated or be liquidated or if any other such event should
occur before the delivery of the Shares hereunder, certificates for the Shares
shall be delivered by the Custodian in accordance with the terms and conditions
of this Agreement and actions taken by the Committee and the Custodian pursuant
to the Agreement and Power of Attorney shall be as valid as if such death,
liquidation, incapacity or other event had not occurred, regardless of whether
or not the Custodian or the Committee, or either of them, shall have received
notice thereof;
(j) such Selling Stockholder has not relied upon the Representative or
legal counsel for the Representative for any legal, tax or accounting advice in
connection with the offering and sale of the Shares;
2. Certain Covenants:
I. The Company hereby agrees with each Underwriter:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the securities or
blue sky laws of such states as the Representative may designate and to maintain
such qualifications in effect as long as required for the distribution of the
Shares, provided that the Company shall not be required to qualify as a foreign
corporation or to consent to the service of process under the laws of any such
state (except service of process with respect to the offering and sale of the
Shares);
(b) to prepare the Prospectus in a form approved by the Underwriters
and file such Prospectus with the Commission pursuant to Rule 424(b) not later
than 10:00 a.m. (New York City time), on the day following the execution and
delivery of this Agreement and to furnish promptly (and with respect to the
initial delivery of such Prospectus, not later than 10:00 a.m. (New York City
time) on the day following the execution and delivery of this Agreement) to the
Underwriters as many copies of the Prospectus (or of the Prospectus as amended
or supplemented if the Company shall have made any amendments or supplements
thereto after the effective date of the Registration Statement) as the
Underwriters may reasonably request for the purposes contemplated by the
Securities Act Regulations, which Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to the version created
to be transmitted to the Commission for filing via XXXXX, except to the extent
permitted by Regulation S-T;
(c) to advise the Representative promptly and (if requested by the
Representative) to confirm such advice in writing, when the Registration
Statement has become effective and when any post-effective amendment thereto
becomes effective under the Securities Act Regulations;
(d) to advise the Representative immediately, confirming such advice
in writing, of (i) the receipt of any comments from, or any request by, the
Commission for amendments or supplements to the Registration Statement or
Prospectus or for additional information with respect thereto, or (ii) the
issuance by the Commission 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, or of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes and, if
the Commission or any other government agency or authority should issue any such
order, to make every reasonable effort to obtain the lifting or removal of such
order as soon as possible; to advise the Representative promptly of any proposal
to amend or supplement the Registration Statement or Prospectus and to file no
such amendment or supplement to which the Representative shall reasonably object
in writing;
(e) to furnish to the Underwriters for a period of five years from the
date of this Agreement (i) as soon as available, copies of all annual, quarterly
and current reports or other communications supplied to holders of shares of
Common Stock, (ii) as soon as practicable after the filing thereof, copies of
all reports filed by the Company with the Commission, the NASD or any securities
exchange and (iii) such other information as the Underwriters may reasonably
request regarding the Company and its Subsidiaries;
(f) to advise the Underwriters promptly of the happening of any event
known to the Company within the time during which a Prospectus relating to the
Shares is required to be delivered under the Securities Act Regulations which,
in the judgment of the Company, would require the making of any change in the
Prospectus then being used so that the Prospectus would not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and, during such time,
to prepare and furnish, at the Company's expense, to the Underwriters promptly
such amendments or Supplements to such Prospectus as may be necessary to reflect
any such change and to furnish to the Underwriters a copy of such proposed
amendment or supplement before filing any such amendment or supplement with the
Commission;
(g) to furnish promptly to each Representative a signed copy of the
Registration Statement, as initially filed with the Commission, and of all
amendments or supplements thereto (including all exhibits filed therewith or
incorporated by reference therein) and such number of conformed copies of the
foregoing as the Representative may reasonably request;
(h) to furnish to each Representative, not less than two business days
before filing with the Commission subsequent to the effective date of the
Prospectus and during the period referred to in paragraph (f) above, a copy of
any document proposed to be filed with the Commission pursuant to Section 13,
14, or 15(d) of the Exchange Act;
(1) to apply the net proceeds of the sale of the Shares in
accordance with its statements under the caption "Use of Proceeds" in the
Prospectus;
(i) to make generally available to its security holders as soon as
practicable, but in any event not later than the end of the fiscal quarter first
occurring after the first anniversary of the effective date of the Registration
Statement an earnings statement complying with the provisions of Section 11(a)
of the Securities Act (in form, at the option of the Company, complying with the
provisions of Rule 158 of the Securities Act Regulations,) covering a period of
12 months beginning after the effective date of the Registration Statement;
(j) to use its best efforts to effect and maintain the quotation of
the Shares on the Nasdaq Stock Market and to file with the Nasdaq Stock Market
all documents and notices required by the Nasdaq Stock Market of companies that
have securities that are traded in the over-the-counter market and quotations
for which are reported by the Nasdaq Stock Market;
(k) to engage and maintain, at its expense, a registrar and transfer
agent for the Shares;
(l) to refrain during a period of [ ] days from the date of the
Prospectus, without the prior written consent of the Representative, from (i)
offering, pledging, selling, contracting to sell, selling any option or contract
to purchase, purchasing any option or contract to sell, granting any option for
the sale of, or otherwise disposing of or transferring, directly or indirectly,
any share of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, or filing any registration statement under the
Securities Act with respect to any of the foregoing, or (ii) entering into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (A)
the Shares to be sold hereunder, or (B) any shares of Common Stock issued by the
Company upon the exercise of an option outstanding on the date hereof and
referred to in the Prospectus;
(m) to not itself and to use its best efforts to cause its officers,
directors and affiliates not to, (i) take, directly or indirectly prior to
termination of the underwriting syndicate contemplated by this Agreement, any
action designed to stabilize or manipulate the price of any security of the
Company, or which may cause or result in, or which might in the future
reasonably be expected to cause or result in, the stabilization or manipulation
of the price of any security of the Company, to facilitate the sale or resale of
any of the Shares, (ii) sell, bid for, purchase or pay anyone any compensation
for soliciting purchases of the Shares or (iii) pay or agree to pay to any
person any compensation for soliciting any order to purchase any other
securities of the Company; and
(n) if at any time during the 30-day period after the Registration
Statement becomes effective, any rumor, publication or event relating to or
affecting the Company shall occur as a result of which in the reasonable opinion
of the Representative the market price of the Common Stock has been or is likely
to be materially affected (regardless of whether such rumor, publication or
event necessitates a supplement to or amendment of the Prospectus) and after
written notice from the Representative advising the Company to the effect set
forth above, to forthwith prepare, consult with the Representative concerning
the substance of, and disseminate a press release or other public statement,
reasonably satisfactory to the Representative, responding to or commenting on
such rumor, publication or event.
II. Each Selling Stockholder hereby agrees with each Underwriter to deliver to
the Representatives prior to the Closing Time a properly completed and executed
United States Treasury Department Form W-8 (if the Selling Stockholder is a
non-United States person, within the meaning of the Internal Revenue Code of
1986, as amended) or Form W-9 (f the Selling Stockholder is a United States
person, within the meaning of the Internal Revenue Code of 1986, as amended).
3. Payment of Expenses:
(a) The Company agrees to pay all costs and expenses incident to the
performance of its obligations under this Agreement, whether or not the
transactions contemplated hereunder are consummated or this Agreement is
terminated, including expenses, fees and taxes in connection with (i) the
preparation and filing of the Registration Statement, each Preliminary
Prospectus, the Prospectus, and any amendments or supplements thereto, and the
printing and furnishing of copies of each thereof to the Underwriters and to
dealers (including costs of mailing and shipment), (ii) the preparation,
issuance and delivery of the certificates for the Shares to the Underwriters,
including any stock or other transfer taxes or duties payable upon the sale of
the Shares to the Underwriters, (iii) the printing of this Agreement and any
dealer agreements and furnishing of copies of each to the Underwriters and to
dealers (including costs of mailing and shipment), (iv) the qualification of the
Shares for offering and sale under state laws that the Company and the
Representative have mutually agreed are appropriate and the determination of
their eligibility for investment under state law as aforesaid (including the
legal fees and filing fees and other disbursements of counsel for the
Underwriters [in the [maximum] amount of $________ assuming that the Common
Stock is approved for quotation on the Nasdaq Stock Market)] and the printing
and furnishing of copies of any blue sky surveys or legal investment surveys to
the Underwriters and to dealers, (v) filing for review of the public offering of
the Shares by the NASD (including the legal fees and filing fees and other
disbursements of counsel for the Underwriters relating thereto), (vi) the fees
and expenses of any transfer agent or registrar for the Shares and miscellaneous
expenses referred to in the Registration Statement, (vii) the fees and expenses
incurred in connection with the inclusion of the Shares in the Nasdaq Stock
Market, (viii) making road show presentations with respect to the offering of
the Shares, (ix) preparing and distributing bound volumes of transaction
documents for the Representative and its legal counsel and (x) the performance
of the Company's other obligations hereunder. Upon the request of the
Representative, the Company will provide funds in advance for filing fees.
(b) The Company agrees to reimburse the Representative for its
reasonable out-of-pocket expenses in connection with the performance of its
activities under this Agreement, including, but not limited to, costs such as
printing, facsimile, courier service, direct computer expenses, accommodations
and travel, but excluding the fees and expenses of the Underwriters' outside
legal counsel and any other advisors, accountants, appraisers, etc. (other than
the fees and expenses of counsel with respect to state securities or blue sky
laws and obtaining the filing for review of the public offering of the Shares by
the NASD, all of which shall be reimbursed by the Company pursuant to the
provisions of subsection (a) above).
(c) The Selling Stockholders and the Company, jointly and severally,
agree with each Underwriter to pay (directly or by reimbursement) all fees and
expenses incident to the performance of their obligations under this Agreement
which are otherwise specifically provided for herein, including, but not limited
to, (i) fees and expenses of counsel and other advisors for such Selling
Stockholders, (ii) fees and expenses of the Custodian and (iii) expenses and
taxes incident to the sale and delivery of the Shares to be sold by such Selling
Stockholder to the Underwriters hereunder (which taxes, if any, may be deducted
by the Custodian.
4. Conditions of the Underwriters' Obligations: The obligations of the
Underwriters hereunder to purchase Shares at the Closing Time or on the Date of
Delivery, as applicable, are subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders in all
material respects on the date hereof and at the Closing Time and on each Date of
Delivery, as applicable, the performance by the Company and the Selling
Stockholders of their respective obligations hereunder in all material respects
and to the satisfaction of the following further conditions at the Closing Time
or on the Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters at the Closing Time
and on each Date of Delivery an opinion of Cadwalader, Xxxxxxxxxx & Xxxx,
counsel for the Company and its Subsidiaries, addressed to the Underwriters and
dated the Closing Time and each Date of Delivery and in form and substance
satisfactory to Underwriters' counsel, stating that:
(1) the Company has an authorized capitalization as set forth in
the Prospectus under the caption "Capitalization"; the outstanding shares
of capital stock of the Company and its Subsidiaries have been duly and
validly authorized and issued and are fully paid and non-assessable, and
all of the outstanding shares of capital stock of the Subsidiaries are
directly or indirectly owned of record and beneficially by the Company;
except as disclosed in the Prospectus, there are no outstanding (i)
securities or obligations of the Company or any of its Subsidiaries
convertible into or exchangeable for any capital stock of the Company or
any such Subsidiary, (ii) warrants, rights or options to subscribe for or
purchase from the Company or any such Subsidiary any such capital stock or
any such convertible or exchangeable securities or obligations, or (iii)
obligations of the Company or any such Subsidiary to issue any shares of
capital stock, any such convertible or exchangeable securities or
obligation, or any such warrants, rights or options;
(2) the Company and its Subsidiaries (all of which are named in
an exhibit to the Registration Statement) each has been duly incorporated
and is validly existing as a corporation in good standing under the laws of
its respective jurisdiction of incorporation with full corporate power and
authority to own its respective properties and to conduct its respective
business as described in the Registration Statement and Prospectus and, in
the case of the Company, to execute and deliver this Agreement and to
consummate the transactions described in this Agreement;
(3) the Company and its Subsidiaries are duly qualified or
licensed by each jurisdiction in which they conduct their respective
businesses and in which the failure, individually or in the aggregate, to
be so licensed could have a material adverse effect on the assets,
business, operations, earnings, prospects, properties or condition
(financial or otherwise) of the Company and its Subsidiaries taken as a
whole, and the Company and its Subsidiaries are duly qualified, and are in
good standing, in each jurisdiction in which they own or lease real
property or maintain an office and in which such qualification is necessary
except where the failure to be so qualified and in good standing would not
have a material adverse effect on the assets, business, operations,
earnings, prospects, properties or condition (financial or otherwise) of
the Company and its Subsidiaries taken as a whole; except as disclosed in
the Prospectus, no Subsidiary is prohibited or restricted, directly or
indirectly, from paying dividends to the Company, or from making any other
distribution with respect to such Subsidiary's capital stock or from
repaying to the Company or any other Subsidiary, any amounts which may from
time to time become due under any loans or advances to such Subsidiary from
the Company or such other Subsidiary, or from transferring any such
Subsidiary's property or assets to the Company or to any other Subsidiary;
other than as disclosed in the Prospectus, the Company does not own,
directly or indirectly, any capital stock or other equity securities of any
other corporation or any ownership interest in any partnership, joint
venture or other association;
(4) to such counsel's knowledge, the Company and its Subsidiaries
are in compliance in all material respects with all applicable laws,
orders, rules, regulations and orders, including those relating to
transactions with affiliates;
(5) to such counsel's knowledge, neither the Company nor any of
its Subsidiaries is in breach of, or in default under (nor has any event
occurred which with notice, lapse of time, or both would constitute a
breach of, or default tinder), any license, indenture, mortgage, deed of
trust, loan or credit agreement or any other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which any of
them or their respective properties may be bound or affected or under any
law, regulation or rule or any decree, judgment or order applicable to the
Company or any of its Subsidiaries, except such breaches or defaults which
would not have a material adverse effect on the assets, business,
operations, earnings, prospects, properties or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole;
(6) the execution, delivery and performance of this Agreement by
the Company and the consummation by the Company of the transactions
contemplated by this Agreement do not and will not (A) conflict with, or
result in any breach of, or constitute a default under (nor constitute any
event which with notice, lapse of time, or both would constitute a breach
of or default under), (i) any provisions of the certificate of
incorporation, charter or by-laws of the Company or any Subsidiary, (ii)
any provision of any material license, indenture, mortgage, deed of trust,
loan, credit or other agreement or instrument known by such counsel and to
which the Company or any Subsidiary is a party or by which any of them or
their respective properties or assets may be bound or affected, (iii) any
law or regulation binding upon or applicable to the Company or any
Subsidiary or any of their respective properties or assets, or (iv) any
decree, judgment or order known to such counsel to be applicable to the
Company or any Subsidiary; or (B) result in the creation or imposition of
any lien, charge, claim or encumbrance upon any property or assets of the
Company or its Subsidiaries;
(7) this Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement of the
Company enforceable in accordance with its terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, and by general principles of equity,
and except that enforceability of the indemnification and contribution
provisions set forth in Section 9 of this Agreement may be limited by the
federal or state securities laws of the United States or public policy
underlying such laws;
(8) no approval, authorization, consent or order of or filing
with any federal or state governmental or regulatory commission, board,
body, authority or agency is required in connection with the execution,
delivery and performance of this Agreement, the consummation of the
transaction contemplated hereby, and the sale and delivery of the Shares by
the Company as contemplated hereby, other than such as have been obtained
or made under the Securities Act and the Securities Act Regulations, and
except that such counsel need express no opinion as to any necessary
qualification under the state securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the Underwriters or
any approval of the underwriting terms and arrangements by the National
Association of Securities Dealers, Inc.;
(9) to such counsel's knowledge, each of the Company and its
Subsidiaries has all necessary material licenses, authorizations, consents
and approvals and has made all necessary filings required under any
federal, state or local law, regulation or rule, and has obtained all
necessary authorizations, consents and approvals from other persons,
required to conduct their respective businesses, as described in the
Prospectus; to such counsel's knowledge neither the Company nor any
Subsidiaries is in violation of, in default under, or has received any
notice regarding a possible violation, default or revocation of any such
material license, authorization, consent or approval or any federal, state,
local or foreign law, regulation or decree, order or judgment applicable to
the Company or any of its Subsidiaries;
(10) the Shares have been duly authorized and when the Shares
have been issued and duly delivered against payment therefor as
contemplated by this Agreement, the Shares will be validly issued, fully
paid and nonassessable, and the Underwriters will acquire the good and
marketable title to the Shares, free and clear of any pledge, lien,
encumbrance, security interest, or other claim;
(11) the issuance and sale of the Shares by the Company is not
subject to preemptive or other similar rights arising by operation of law,
under the certificate of incorporation, charter or by-laws of the Company,
or under any agreement known to such counsel to which the Company or any of
its Subsidiaries is a party or, to such counsel's knowledge, otherwise;
(12) to counsel's knowledge, there are no persons with
registration or other similar rights to have any equity securities,
including securities which are convertible into or exchangeable for equity
securities, registered pursuant to the Registration Statement or otherwise
registered by the Company under the Securities Act, (i) except for certain
of the Selling Stockholders, to the extent of the equity securities to be
offered and sold by such Selling Stockholders as contemplated by this
Agreement, and (ii) except for those registration or similar rights which
have been waived with respect to the offering contemplated by this
Agreement;
(13) the Shares conform in all material respects to the
descriptions thereof contained in the Registration Statement and
Prospectus;
(14) the form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the articles of
incorporation and by-laws of the Company and the requirements of the Nasdaq
Stock Market;
(15) the Registration Statement has become effective under the
Securities Act and no stop order suspending the effectiveness of the
Registration Statement has been issued and, to such counsel's knowledge, no
proceedings with respect thereto have been commenced or threatened;
(16) as of the effective date of the Registration Statement, the
Registration Statement and the Prospectus (except as to the financial
statements and other financial and statistical data contained therein, as
to which such counsel need express no opinion) complied as to form in all
material respects with the requirements of the Securities Act and the
Securities Act Regulations;
(17) the statements under those sections [ ] in the Registration
Statement and the Prospectus, insofar as such statements constitute a
summary of the legal matters referred to therein, constitute accurate
summaries thereof in all material respects;
(18) to such counsel's knowledge, there are no actions, suits or
proceedings, inquiries, or investigations pending or threatened against the
Company or any of its Subsidiaries or any of their respective officers and
directors or to which the properties, assets or rights of any such entity
are subject, at law or in equity, before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority,
arbitral panel or agency which are required to be described in the
Prospectus but are not so described;
(19) to such counsel's knowledge, there are no contracts or
documents of a character which are required to be filed as exhibits to the
Registration Statement or required to be described or summarized in the
Prospectus which have not been so filed, summarized or described, and all
such summaries and descriptions, in all material respects, fairly and
accurately set forth the material provisions of such contracts and
documents;
(20) to such counsel's knowledge, the Company and each Subsidiary
owns or possesses adequate license or other rights to use all patents,
trademarks, service marks, trade names, copyrights, software and design
licenses, trade secrets, manufacturing processes, other intangible property
rights and know-how (collectively "Intangibles") necessary to entitle the
Company and each Subsidiary to conduct its business as described in the
Prospectus, and neither the Company, nor any Subsidiary, has received
notice of infringement of or conflict with (and knows of no such
infringement of or conflict with) asserted rights of others with respect to
any Intangibles which could materially and adversely affect the business,
prospects, properties, assets, results of operations or condition
(financial or otherwise) of the Company or any Subsidiary;
(21) to such counsel's knowledge, each of the Company, and the
Subsidiaries has filed on a timely basis all necessary federal, state,
local and foreign income and franchise tax returns required to be filed
through the date hereof and have paid all taxes shown as due thereon; and
no tax deficiency has been asserted against any such entity, nor does any
such entity know of any tax deficiency which is likely to be asserted
against any such entity which if determined adversely to any such entity,
could materially adversely affect the business, prospects, properties,
assets, results of operations or condition (financial or otherwise) of any
such entity, respectively;
(22) the offer and sale of the securities offered and sold by the
Company and its Subsidiaries, including the securities offered and sold in
connection with the Acquisition, are exempt from the registration
requirements of the Securities Act and the Securities Act Regulations.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company, independent
public accountants of the Company, representatives of the Representative, at
which the contents of the Registration Statement and Prospectus were discussed
and, although such counsel is not passing upon and does not assume
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or Prospectus (except as and to the
extent stated in subparagraphs (xiii), (xvii), and (xix) above), they have no
reason to believe that the Registration Statement, the Preliminary Prospectus or
the Prospectus, as of their respective effective or issue date, and as of the
date of such counsel's opinion, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that, in each case, such counsel need express no view with respect to the
financial statements and other financial and statistical data included in the
Registration Statement, Preliminary Prospectus or Prospectus).
(b) The Company shall furnish to the Underwriters at the Closing Time and
on each Date of Delivery a letter permitting it to rely upon the opinions given
pursuant to this Agreement, which opinions and reliance letters shall be in form
and substance satisfactory to counsel for the Underwriters.
(c) [Each Selling Stockholder shall furnish to the Underwriters at the
Closing Time and on each Date of Delivery an opinion of [INSERT NAME OF
STOCKHOLDERS' COUNSEL], counsel for the Selling Stockholders, addressed to the
Underwriters and dated the Closing Time and each Date of Delivery and in form
and substance satisfactory to Underwriters' counsel, stating that:
(1) Such Selling Stockholder, if a corporation, partnership,
trust or similar entity, has been duly organized and is validly existing in
good standing under the laws of its respective jurisdiction of organization
with full power and authority to execute and deliver this Agreement and the
Agreement and Power of Attorney, and to consummate the transactions
described in this Agreement and the Agreement and Power of Attorney;
(2) the execution, delivery and performance of this Agreement and
the Agreement and Power of Attorney by such Selling Stockholder, and the
consummation by such Selling Stockholder of the transactions contemplated
by this Agreement and by the Agreement and Power of Attorney, do not and
will not conflict with, or result in any breach of, or constitute a default
under (nor constitute any event which with notice, lapse of time, or both
would constitute a breach of or default under), (i) any provisions of the
certificate of incorporation, charter, partnership agreement, trust
document, by-laws or other similar governing documents, as applicable, of
such Selling Stockholder, (ii) any provision of any material license,
indenture, mortgage, deed of trust, loan, credit or other agreement or
instrument to which such Selling Stockholder is a party or by which its
properties may be bound or affected, and which is known to such counsel,
(iii) any law or regulation binding upon or applicable to such Selling
Stockholder or any of its properties or assets, or (iv) any decree,
judgment or order known to such counsel and applicable to such Selling
Stockholder;
(3) this Agreement and the Agreement and Power of Attorney has
been duly authorized, executed and delivered by such Selling Stockholder
and each is a legal, valid and binding agreement of such Selling
Stockholder enforceable in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, and by general principles of
equity, and except that enforceability of the indemnification and
contribution provisions set forth in Section 9 of this Agreement may be
limited by the federal or state securities laws of the United States or
public policy underlying such laws;
(4) upon the sale and delivery of the Shares by each Selling
Stockholder against receipt of payment therefor, in each case in accordance
with the terms of this Agreement and the Agreement and Power of Attorney,
the Underwriters will acquire good and marketable title to such Shares,
free and clear of any pledge, lien, encumbrance, security interest, or
other claim; and
(5) no approval, authorization, consent or order of or filing
with any federal or state governmental or regulatory commission, board,
body, authority or agency is required in connection with the execution,
delivery and performance of this Agreement and the Agreement and Power of
Attorney, the consummation of the transaction contemplated hereby and
thereby, and the sale and delivery of the Shares by such Selling
Stockholder as contemplated hereby and thereby, other than such as have
been obtained or made under the Securities Act and the Securities Act
Regulations, and except that such counsel need express no opinion as to any
necessary qualification under the state securities or blue sky laws of the
various jurisdictions in which the Shares are being offered by the
Underwriters or any approval of the underwriting terms and arrangements by
the National Association of Securities Dealers, Inc.
(d) The Representative shall have received from Deloitte & Touche,
LLP, letters dated, respectively, as of the date of this Agreement, the Closing
Time and each Date of Delivery, as the case may be, addressed to the
Representative, in form and substance satisfactory to the Representative,
relating to the financial statements, including any pro forma financial
statements, of the Company and its Subsidiaries, and such other matters
customarily covered by comfort letters issued in connection with registered
public offerings.
(e) The Representative shall have received at the Closing Time and on
each Date of Delivery the favorable opinion of counsel, dated the Closing Time
or such Date of Delivery, addressed to the Representative and in form and
substance satisfactory to the Representative.
(f) No amendment or supplement to the Registration Statement or
Prospectus shall have been filed to which the Underwriters shall have objected
in writing.
(g) Prior to the Closing Time and each Date of Delivery (i) no stop
order suspending the effectiveness of the Registration Statement or any order
preventing or suspending the use of any Preliminary Prospectus or Prospectus has
been issued, and no proceedings for such purpose shall have been initiated or
threatened, by the Commission, and no suspension of the qualification of the
Shares for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes, has occurred; and (ii)
the Registration Statement and the Prospectus shall not contain an untrue
statement of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(h) Between the time of execution of this Agreement and the Closing
Time or the relevant Date of Delivery (i) no material and unfavorable change in
the assets, business, operations, earnings, prospects, properties or condition
(financial or otherwise) of the Company and its Subsidiaries taken as a whole
shall occur or become known (whether or not arising in the ordinary course of
business), and (ii) no transaction which is material and unfavorable to the
Company shall have been entered into by the Company or any of its Subsidiaries.
(i) The Shares shall have been approved for inclusion in the Nasdaq
Stock Market.
(j) The NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
(k) The Representative shall have received lock-up agreements from
each stockholder of the Company, in the form of Exhibit B attached hereto, and
such letter agreements shall be in full force and effect.
(l) The Company will, at the Closing Time and on each Date of
Delivery, deliver to the Underwriters a certificate of its Chairman of the Board
and Chief Executive Officer, its President and Chief Operating Officer, and its
Vice President and Chief Financial Officer, to the effect that, to each of such
officer's knowledge, the representations and warranties of the Company set forth
in this Agreement are true and correct and the conditions set forth in
paragraphs (g), (h) and (i) have been satisfied, in each case as of such date.
(m) Each Selling Stockholder will, at the Closing Time and on each
Date of Delivery, deliver to the Underwriters a certificate, to the effect that,
to such Selling Stockholder's knowledge, the representations and warranties of
such Selling Stockholder set forth in this Agreement are true and correct as of
such date.
(n) The Company and the Selling Stockholders, as applicable, shall
have furnished to the Underwriters such other documents and certificates as to
the accuracy and completeness of any statement in the Registration Statement and
the Prospectus, the representations, warranties and statement of the Company
contained herein and in Agreement and Power of Attorney, and the performance by
the Company and the Selling Stockholders of their respective covenants contained
herein and therein, and the fulfillment of any conditions contained herein or
therein, as of the Closing Time or any Date of Delivery as the Underwriters may
reasonably request.
(o) The Company and each Selling Stockholder, as applicable, shall
have performed such of their respective obligations under this Agreement and
Agreement and Power of Attorney as are to be performed by the terms hereof and
thereof at or before the Closing Time or the relevant Date of Delivery.
5. Termination: The obligations of the several Underwriters hereunder
shall be subject to termination in the absolute discretion of the
Representative, at any time prior to the Closing Time or any Date of Delivery,
(i) if any of the conditions specified in Section 6 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, or (ii) if
there has been since the respective dates as of which information is given in
the Registration Statement, any material adverse change, or any development
involving a prospective material adverse change, in or affecting the assets,
business, operations, earnings, prospects, properties, condition (financial or
otherwise) or management of the Company or any Subsidiary, whether or not
arising in the ordinary course of business, or (iii) if there has occurred
outbreak or escalation of hostilities or other national or international
calamity or crisis or change in economic, political or other conditions the
effect of which on the financial markets of the United States is such as to make
it, in the judgment of the Representative, impracticable to market the Shares or
enforce contracts for the sale of the Shares, or (iv) if trading in any
securities of the Company has been suspended by the Commission or by Nasdaq, or
if trading generally on the New York Stock Exchange or in the Nasdaq
over-the-counter market has been suspended (including automatic halt in trading
pursuant to market-decline triggers other than those in which solely program
trading is temporarily halted), or limitations on prices for trading (other than
limitations on hours or numbers of days of trading) have been fixed, or maximum
ranges for prices for securities have been required, by such exchange or the
NASD or Nasdaq or by order of the Commission or any other governmental
authority, or (v) any federal or state statute, regulation, rule or order of any
court or other governmental authority has been enacted, published, decreed or
otherwise promulgated which in the reasonable opinion of the Representative
materially adversely affects or will materially adversely affect the business or
operations of the Company, or (vi) any action has been taken by any federal,
state or local government or agency in respect of its monetary or fiscal affairs
which in the reasonable opinion of the Representative has a material adverse
effect on the securities markets in the United States.
If the Representative elects to terminate this Agreement as provided
in this Section 7, the Company and the Underwriters shall be notified promptly
by telephone, promptly confirmed by facsimile.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply in all material respects with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 5 and 9 hereof) and the
Underwriters shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 9 hereof) or to one another
hereunder.
6. Increase in Underwriters' Commitments: If any Underwriter shall
default at the Closing Time or on a Date of Delivery in its obligation to take
up and pay for the Shares to be purchased by it under this Agreement on such
date the Representative shall have the right, within 36 hours after such
default, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Shares which such Underwriter shall have agreed but failed to take up and
pay for (the "Defaulted Shares"). Absent the completion of such arrangements
within such 36 hour period, (i) if the total number of Defaulted Shares does not
exceed 10% of the total number of Shares to be purchased on such date, each
non-defaulting Underwriter shall take up and pay for (in addition to the number
of Shares which it is otherwise obligated to purchase on such date pursuant to
this Agreement) the portion of the total number of Shares agreed to be purchased
by the defaulting Underwriter on such date in the proportion that its
underwriting obligations hereunder bears to the underwriting obligations of all
non-defaulting Underwriters; and (ii) if the total number of Defaulted Shares
exceeds 10% of such total, the Representative may terminate this Agreement by
notice to the Company, without liability to any non-defaulting Underwriter.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Shares hereunder on such date unless all of the Shares to be
purchased on such date are purchased on such date by the Underwriters (or by
substituted Underwriters selected by the Representative with the approval of the
Company or selected by the Company with the approval of the Representative).
If a new Underwriter or Underwriters are substituted for a defaulting
Underwriter in accordance with the foregoing provision, the Company or the
non-defaulting Underwriters shall have the right to postpone the Closing Time or
the relevant Date of Delivery for a period not exceeding five business days in
order that any necessary changes in the Registration Statement and Prospectus
and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with the like effect
as, if such substituted Underwriter had originally been named in this Agreement.
7. Indemnity and Contribution by the Company, the Selling Stockholders
and the Underwriters:
(a) (1) The Company and each Selling Stockholder, jointly and
severally, agrees to indemnify, defend and hold harmless each Underwriter and
any person who controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any loss,
expense, liability, damage or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or controlling
person may incur under the Securities Act, the Exchange Act or otherwise,
insofar as such loss, expense, liability, damage or claim arises out of or is
based upon (A) any breach of any representation, warranty or covenant of the
Company contained herein, (B) any failure on the part of the Company to comply
with any applicable law, rule or regulation relating to the offering of
securities being made pursuant to the Prospectus, or (C) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company) or in a Prospectus (the term Prospectus for
the purpose of this Section 9 being deemed to include any Preliminary
Prospectus, the Prospectus and the Prospectus as amended or supplemented by the
Company), or arises out of or is based upon any omission or alleged omission to
state a material fact required to be stated in either such Registration
Statement or Prospectus or necessary to make the statements made therein, in the
light of the circumstances under which they were made, not misleading, except
insofar as any such loss, expense, liability, damage or claim arises out of or
is based upon any untrue statement or alleged untrue statement or omission or
alleged omission of a material fact contained in and in conformity with
information furnished in writing by the Underwriters through the Representative
to the Company expressly for use in such Registration Statement or such
Prospectus, provided, however, that the indemnity agreement contained in this
subsection (a)(i) with respect to the Preliminary Prospectus or the Prospectus
shall not inure to the benefit of an Underwriter (or to the benefit of any
person controlling such Underwriter) with respect to any person asserting any
such loss, expense, liability, damage or claim which is the subject thereof if
the Prospectus or any supplement thereto prepared with the consent of the
Representative and furnished to the Underwriters prior to the Closing Time
corrected any such alleged untrue statement or omission and if such Underwriter
failed to send or give a copy of the Prospectus or supplement thereto to such
person at or prior to the written confirmation of the sale of Shares to such
person, unless such failure resulted from noncompliance by the Company with
Section 4I(b) above).
(2) Each Selling Stockholder, severally not jointly, agrees to
indemnify, defend and hold harmless each Underwriter and any person who controls
any Underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any loss, expense, liability,
damage or claim (including the reasonable cost of investigation) which, jointly
or severally, any such Underwriter or controlling person may incur under the
Securities Act, the Exchange Act or otherwise, insofar as such loss, expense,
liability, damage or claim arises out of or is based upon (A) any breach of any
representation, warranty or covenant of such Selling Stockholder contained
herein, (B) any failure on the part of such Selling Stockholder to comply with
any applicable law, rule or regulation relating to the offering of securities
being made pursuant to the Prospectus, or (C) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or
in the Registration Statement as amended by any post-effective amendment thereof
by the Company) or in a Prospectus (the term Prospectus for the purpose of this
Section 9 being deemed to include any Preliminary Prospectus, the Prospectus and
the Prospectus as amended or supplemented by the Company), or arises out of or
is based upon any omission or alleged omission to state a material fact required
to be stated in either such Registration Statement or Prospectus or necessary to
make the statements made therein, in the light of the circumstances under which
they were made, not misleading, but only insofar as any such loss, expense,
liability, damage or claim arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission of a material fact
contained in and in conformity with information furnished in writing by such
Selling Stockholder to the Company expressly for use in such Registration
Statement or such Prospectus; provided, however, that the indemnity agreement
contained in this subsection (b) shall not require any such Selling Stockholder
to reimburse the Underwriters for in excess of the gross sale price of the
Shares sold by such Selling Stockholder pursuant to this Agreement.
(b) If any action is brought against an Underwriter or controlling
person in respect of which indemnity may be sought against the Company or any
Selling Stockholder pursuant to subsection (a) above, such Underwriter shall
promptly notify the Company or such Selling Stockholder, as applicable, in
writing of the institution of such action, and the Company or such Selling
Stockholder, as applicable, shall assume the defense of such action, including
the employment of counsel and payment of expenses, provided, however, that any
failure or delay to so notify the Company or such Selling Stockholder, as
applicable, will not relieve the Company or such Selling Stockholder, as
applicable, of any obligation hereunder, except to the extent that its ability
to defend is actually impaired by such failure or delay. Such Underwriter 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 Underwriter or such controlling person unless the employment of such
counsel shall have been authorized in writing by the Company or such Selling
Stockholder, as applicable, in connection with the defense of such action, or
the Company or such Selling Stockholder, as applicable, shall not have employed
counsel to have charge of the defense of such action within a reasonable time or
such indemnified party or parties shall have reasonably concluded (based on the
advice of counsel) that there may be defenses available to it or them which are
different from or additional to those available to the Company or such Selling
Stockholder, as applicable, (in which case neither the Company nor such Selling
Stockholder shall have the right to direct the defense of such action on behalf
of the indemnified party or parties), in any of which events such fees and
expenses shall be borne by the Company or the Selling Stockholder, as
applicable, and paid as incurred (it being understood, however, that neither the
Company nor any Selling Stockholder shall be liable for the expenses of more
than one separate firm of attorneys for the Underwriters or controlling persons
in any one action or series of related actions in the same jurisdiction (other
than local counsel in any such jurisdiction) representing the indemnified
parties who are parties to such action). Anything in this paragraph to the
contrary notwithstanding, neither the Company nor any Selling Stockholder shall
be liable for any settlement of any such claim or action effected without the
its written consent.
(c) Each Underwriter agrees, severally and not jointly, to indemnify,
defend and hold harmless the Company and each Selling Stockholder, the Company's
directors, the Company's officers that signed the Registration Statement, and
any person who controls the Company or any Selling Stockholder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any loss, expense, liability, damage or claim (including the
reasonable cost of investigation) which, jointly or severally, the Company, the
Selling Stockholder or any such person may incur under the Securities Act, the
Exchange Act or otherwise, but only insofar as such loss, expense, liability,
damage or claim arises out of or is based upon arty untrue statement or alleged
untrue statement of a material fact contained in and in conformity with
information furnished in writing by such Underwriter through the Representative
to the Company expressly for use in the Registration Statement (or in the
Registration Statement as amended by any posteffective amendment thereof by the
Company) or in a Prospectus, or arises out of or is based upon any omission or
alleged omission to state a material fact in connection with such information
required to be stated either in such Registration Statement or Prospectus or
necessary to make such information, in the light of the circumstances under
which made, not misleading. The statements set forth (i) in the last paragraph
on the cover page and (ii) under the caption "Underwriting" in the Preliminary
Prospectus and the Prospectus (to the extent such statements relate to the
Underwriters) constitute the only information furnished by or on behalf of any
Underwriter through the Representative to the Company for purposes of Section
3(j) and this Section 9.
If any action is brought against the Company, any Selling Stockholder
or any such person in respect of which indemnity may be sought against any
Underwriter pursuant to the foregoing paragraph, the Company, the Selling
Stockholder or such person shall promptly notify the Representative in writing
of the institution of such action and the Representative, on behalf of the
Underwriters, shall assume the defense of such action, including the employment
of counsel and payment of expenses. The Company, the Selling Stockholder or such
person shall have the right to employ its own counsel in any such case, but the
fees and expenses of such counsel shall be at the expense of the Company, the
Selling Stockholder or such person unless the employment of such counsel shall
have been authorized in writing by the Representative in connection with the
defense of such action or the Representative shall not have employed counsel to
have charge of the defense of such action within a reasonable time or such
indemnified party or parties shall have reasonably concluded (based on the
advice of counsel) that there may be defenses available to it or them which are
different from or additional to those available to the Underwriters (in which
case the Representative shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by such Underwriter and paid as incurred
(it being understood, however, that the Underwriters shall not be liable for the
expenses of more than one separate firm of attorneys in any one action or series
of related actions in the same jurisdiction (other than local counsel in any
such jurisdiction) representing the indemnified parties who are parties to such
action). Anything in this paragraph to the contrary notwithstanding, no
Underwriter shall be liable for any settlement of any such claim or action
effected without the written consent of the Representative.
(d) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a), (b) and (c) of this
Section 9 in respect of any losses, expenses, liabilities, damages or claims
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, expenses,
liabilities, damages or claims (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, the Selling Stockholders
and the Underwriters from the offering of the Shares or (ii) if (but only if)
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, of
the Selling Stockholders and of the Underwriters in connection with the
statements or omissions which resulted in such losses, expenses, liabilities,
damages or claims, as well as any other relevant equitable considerations. The
relative benefits received by the Company, the Selling Stockholders and the
Underwriters shall be deemed to be in the same proportion as, the total proceeds
from the offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company or the Selling Stockholders, as
applicable, bear to the underwriting discounts and commissions received by the
Underwriters. The relative fault of the Company, of the Selling Stockholders and
of the Underwriters shall be determined by reference to, among other things,
whether the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission relates to information supplied by the Company, by
the Selling Stockholders or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result of
the losses, claims, damages and liabilities referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any claim or action.
(e) The Company, the Selling Stockholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
9 were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in subsection
(d)(i) and, if applicable (ii), above. Notwithstanding the provisions of this
Section 9, no Underwriter shall be required to contribute any amount in excess
of the underwriting discounts and commissions applicable to the Shares purchased
by such Underwriter and no Selling Stockholder shall be required to contribute
any amount in excess of the gross sale price of the Shares sold by such Selling
Stockholder pursuant to this Agreement. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 9 are several in proportion to their respective
underwriting commitments and not joint.
8. Survival: The indemnity and contribution agreements contained in
Section 9 and the covenants, warranties and representations of the Company and
the Selling Stockholders contained in Sections 3, 4 and 5 of this Agreement
shall remain in full force and effect regardless of any investigation made by or
on behalf of any Underwriter, or any person who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, or by or on behalf of the Company, its directors and officers, the Selling
Stockholders or any person who controls the Company or any Selling Stockholder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, and shall survive any termination of this Agreement or the sale
and delivery of the Shares. The Company, each Selling Stockholder and each
Underwriter agree promptly to notify the others of the commencement of any
litigation or proceeding against it and, in the case of the Company, against any
of the Company's officers and directors, in connection with the sale and
delivery of the Shares, or in connection with the Registration Statement or
Prospectus.
9. Notices: Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered to Friedman,
Billings, Xxxxxx & Co., Inc., 0000 00xx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000,
Attention: Syndicate Department; if to the Company, shall be sufficient in all
respects if delivered to the Company at the offices of the Company.
10. Governing Law; Headings: THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES. The section headings in this Agreement
have been inserted as a matter of convenience of reference and are not a part of
this Agreement.
11. Parties at Interest: The Agreement herein set forth has been and
is made solely for the benefit of the Underwriters, the Company, the Selling
Stockholders and the controlling persons, directors and officers referred to in
Sections 9 and 10 hereof, and their respective successors, assigns, executors
and administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
12. Counterparts and Facsimile Signatures: This Agreement may be
signed by the parties in counterparts which together shall constitute one and
the same agreement among the parties. A facsimile signature shall constitute an
original signature for all purposes.
If the foregoing correctly sets forth the understanding among the
Company, the Selling Stockholders and the Underwriters, please so indicate in
the space provided below for the purpose, whereupon this Agreement shall
constitute a binding agreement among the Company, the Selling Stockholders and
the Underwriters.
Very truly yours,
AMERICAN HOME MORTGAGE HOLDINGS, INC.
By: _____________________________________
By:
Title:
[SELLING STOCKHOLDERS LISTED ON
SCHEDULE I ATTACHED HERETO
By: [Insert Name of Attorney-in-Fact]
_________________________________________
Attorney-in-Fact]
Accepted and agreed to as
of the date first above written:
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
By: ______________________________
Title:
For itself and as Representative[s] of the other
Underwriters named on Schedule I hereto.
SCHEDULE I
NUMBER OF
NUMBER OF INITIAL OPTION SHARES
NAME OF PARTY SELLING SHARES SHARES TO BE SOLD TO BE SOLD
-------------------------------------- ----------------- -------------
[INSERT COMPANY] [___] [___]
[INSERT NAME OF SELLING STOCKHOLDER] [___] [___]
[INSERT NAME OF SELLING STOCKHOLDERS] [___] [___]
Total [___] [___]
SCHEDULE II
NUMBER OF INITIAL
UNDERWRITER SHARES TO BE PURCHASED
-------------------------------------- ----------------------
Friedman, Billings, Xxxxxx & Co., Inc. [___]
[INSERT NAME OF OTHER UNDERWRITER] [___]
[INSERT NAMES OF OTHER UNDERWRITER] [___]
Total..............................
