Exhibit 1.1
ELECTRONICS BOUTIQUE HOLDINGS CORP.
3,500,000(1)
Common Stock
UNDERWRITING AGREEMENT
November __, 1999
PRUDENTIAL SECURITIES INCORPORATED
BANC OF AMERICA SECURITIES LLC
XXXXXX XXXXXX XXXXXXXX & CO., INC.
XXXXXXXXXXXXXXXXXXXX.XXX
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
Electronics Boutique Holdings Corp., a Delaware corporation (the
"COMPANY") and EB Nevada Inc., a Nevada corporation (the "SELLING
SECURITYHOLDER"), hereby confirm their agreement with the several underwriters
named in Schedule I hereto (the "UNDERWRITERS"), for whom you have been duly
authorized to act as representatives (in such capacities, the
"REPRESENTATIVES"), as set forth below. If you are the only Underwriters, all
references herein to the Representatives shall be deemed to be to the
Underwriters.
1. SECURITIES. Subject to the terms and conditions herein contained,
the Company and the Selling Securityholder propose to issue and sell to the
several Underwriters an aggregate of 3,500,000 shares (the "FIRM SECURITIES") of
the Company's common stock, par value $.01 per share ("COMMON STOCK"), of which
2,000,000 shares will be issued and sold by the Company (the "COMPANY'S FIRM
SECURITIES") and 1,500,000 shares will be sold by the Selling Securityholder
(the "SELLING SECURITYHOLDER'S FIRM SECURITIES"). The Selling Securityholder
also propose to sell to the several Underwriters not more than 525,000
additional shares of Common Stock if requested by the Representatives as
provided in Section 3 of this Agreement.
----------------------------
(1) Plus an option to purchase from the Selling Securityholder up to
525,000 additional shares to cover over-allotments.
Any and all shares of Common Stock to be purchased by the Underwriters pursuant
to such option are referred to herein as the "OPTION SECURITIES," and the Firm
Securities and any Option Securities are collectively referred to herein as the
"SECURITIES."
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) The Company represents and warrants to, and agrees with, each of
the several Underwriters and the Selling Securityholder that:
(i) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "ACT"). A registration
statement on such Form (File No. 333- 88561) with respect to the
Securities, including a prospectus subject to completion, has been
filed by the Company with the Securities and Exchange Commission (the
"COMMISSION") under the Act, and one or more amendments to such
registration statement may have been so filed. After the execution of
this Agreement, the Company will file with the Commission either (A) if
such registration statement, as it may have been amended, has been
declared by the Commission to be effective under the Act, either (1) if
the Company relies on Rule 434 under the Act, a Term Sheet (as
hereinafter defined) relating to the Securities, that shall identify
the Preliminary Prospectus (as hereinafter defined) that it supplements
and, if required to be filed pursuant to Rules 434(c)(2) and 424 (b),
an Integrated Prospectus (as hereinafter defined), in either case,
containing such information as is required or permitted by Rules 434,
430A and 424(b) under the Act or (2) if the Company does not rely on
Rule 434 under the Act, a prospectus in the form most recently included
in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement), with
such changes or insertions as are required by Rule 430A under the Act
or permitted by Rule 424(b) under the Act, and in the case of either
clause (A)(1) or (A)(2) of this sentence as have been provided to and
approved by the Representatives prior to the execution of this
Agreement, or (B) if such registration statement, as it may have been
amended, has not been declared by the Commission to be effective under
the Act, an amendment to such registration statement, including a form
of prospectus, a copy of which amendment has been furnished to and
approved by the Representatives prior to the execution of this
Agreement. The Company may also file a related registration statement
with the Commission pursuant to Rule 462(b) under the Act for the
purpose of registering certain additional Securities, which
registration shall be effective upon filing with the Commission. As
used in this Agreement, the term "ORIGINAL REGISTRATION STATEMENT"
means the registration statement initially filed relating to the
Securities, as amended at the time when it was or is declared
effective, including (A) all financial schedules and exhibits thereto,
(B) all documents incorporated therein filed under the Securities
Exchange Act of 1934 (the "EXCHANGE ACT") and (C) any information
omitted therefrom pursuant to Rule 430A under the Act and included in
the Prospectus (as hereinafter defined) or, if required to be filed
pursuant to Rule 434(c)(2) and 424(b), in the Integrated Prospectus;
the term "RULE 462(B) REGISTRATION STATEMENT" means any registration
statement filed with the Commission pursuant to Rule 462(b) under the
Act (including the Registration Statement and any Preliminary
Prospectus or
2
Prospectus incorporated therein at the time such Registration Statement
becomes effective); the term "REGISTRATION STATEMENT" includes both the
Original Registration Statement and any Rule 462(b) Registration
Statement; the term "PRELIMINARY PROSPECTUS" means each prospectus
subject to completion filed with the Registration Statement or any
amendment thereto (including the prospectus subject to completion, if
any, included in the Registration Statement or any amendment thereto at
the time it was or is declared effective); the term "PROSPECTUS" means:
(A) If the Company relies on Rule 434 under the Act, the Term
Sheet relating to the Securities that is first filed pursuant to
Rule 424(b)(7) under the Act, together with the Preliminary
Prospectus identified therein that such Term Sheet supplements;
(B) if the Company does not rely on Rule 434 under the Act,
the prospectus first filed with the Commission pursuant to Rule
424(b) under the Act; or
(C) if the Company does not rely on Rule 434 under the Act and
if no prospectus is required to be filed pursuant to Rule 424(b)
under the Act, the prospectus included in the Registration
Statement, including, in the case of clauses (A), (B) and (C) of
this sentence, all documents incorporated by reference therein
filed under the Exchange Act; the term "INTEGRATED PROSPECTUS"
means a prospectus first filed with the Commission pursuant to
Rules 434(c)(2) and 424(b) under the Act; and the term "Term Sheet"
means any abbreviated term sheet that satisfies the requirements of
Rule 434 under the Act. Any reference in this Agreement to an
"amendment or supplement" to any Preliminary Prospectus, the
Prospectus or any Integrated Prospectus or an "amendment" to any
registration statement (including the Registration Statement) shall
be deemed to include any document incorporated by reference therein
that is filed with the Commission under the Exchange Act after the
date of such Preliminary Prospectus, Prospectus, Integrated
Prospectus or registration statement, as the case may be; any
reference herein to the "date" of a Prospectus that includes a Term
Sheet shall mean the date of such Term Sheet. For purposes of the
preceding sentence, any reference to the "effective date" of an
amendment to a registration statement shall, if such amendment is
effected by means of the filing with the Commission under the
Exchange Act of a document incorporated by reference in such
registration statement, be deemed to refer to the date on which
such document was so filed with the Commission.
(ii) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus. When any Preliminary
Prospectus and any amendment or supplement thereto was filed with the
Commission it (A) contained all statements required to be stated
therein in accordance with, and complied in all material respects with
the requirements of, the Act and the rules and regulations of the
Commission thereunder and (B) did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. When the Registration
3
Statement or any amendment thereto was or is declared effective, it (A)
contained or will contain all statements required to be stated therein
in accordance with, and complied or will comply in all material
respects with the requirements of the Act and the rules and regulations
of the Commission thereunder and (B) did not or will not include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading. When the
Prospectus or any Term Sheet that is a part thereof or any Integrated
Prospectus or any amendment or supplement to the Prospectus is filed
with the Commission pursuant to Rule 424(b) (or, if the Prospectus or
part thereof or such amendment or supplement is not required to be so
filed, when the Registration Statement or the amendment thereto
containing such amendment or supplement to the Prospectus was or is
declared effective) and on the Firm Closing Date and any Option Closing
Date (both as hereinafter defined), each of the Prospectus, and, if
required to be filed pursuant to Rules 434(c(2) and 424(b) under the
Act, the Integrated Prospectus as amended or supplemented at any such
time, (A) contained or will contain all statements required to be
stated therein in accordance with, and complied or will comply in all
material respects with the requirements of, the Act and the respective
rules and regulations of the Commission thereunder and (B) did not or
will not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The foregoing provisions of this paragraph (ii) do not
apply to statements or omissions made in any Preliminary Prospectus or
any amendment or supplement thereto, the Registration Statement or any
amendment thereto, the Prospectus or, if required to be filed pursuant
to Rules 434(c)(2) and 424(b) under the Act, the Integrated Prospectus
or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein.
(iii) If the Company has elected to rely on Rule 462(b) and the
Rule 462(b) Registration Statement has not been declared effective (A)
the Company has filed a Rule 462(b) Registration Statement in
compliance with and that is effective upon filing pursuant to Rule
462(b) and has received confirmation of its receipt and (B) the Company
has given irrevocable instructions for transmission of the applicable
filing fee in connection with the filing of the Rule 462(b)
Registration Statement, in compliance with Rule 111 promulgated under
the Act or the Commission has received payment of such filing fee.
(iv) The Company and each of its subsidiaries have been duly
organized and are validly existing as corporations under the laws of
their respective jurisdictions and are duly qualified to transact
business as foreign corporations and are in good standing under the
laws of all other jurisdictions where the ownership or leasing of their
respective properties or the conduct of their respective businesses
requires such qualification, except where the failure to be so
qualified does not amount to a material liability or disability to the
Company and each of its subsidiaries, taken as a whole.
4
(v) Except as otherwise described in the Registration Statement,
each of the Prospectus and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in existence,
the most recent Preliminary Prospectus) the Company and each of its
subsidiaries have full power (corporate and other) to own or lease
their respective properties and conduct their respective businesses,
and the Company has full power (corporate and other) to enter into this
Agreement and to carry out all the terms and provisions hereof to be
carried out by it.
(vi) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary
Prospectus). All of the issued shares of capital stock of the Company
(including but not limited to the Securities being sold by the Selling
Securityholder) have been duly authorized and validly issued and are
fully paid and nonassessable. The Firm Securities and Option Securities
have been duly authorized and at the Firm Closing Date or the related
Option Closing Date (as the case may be), after payment therefor in
accordance herewith, will be validly issued, fully paid and
nonassessable. No holders of outstanding shares of capital stock of the
Company are entitled as such to any preemptive or other rights to
subscribe for any of the Securities, and no holder of securities of the
Company has any right which has not been fully exercised or waived to
require the Company to register the offer or sale of any securities
owned by such holder under the Act in the public contemplated by this
Agreement.
(vii) The issued and outstanding shares of capital stock of each of
the Company's subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable and are owned beneficially by
the Company, free and clear of security interests, liens, encumbrances,
equities or claims.
(viii) Except for the shares of capital stock of each of its
subsidiaries, the Company does not, directly or indirectly, own any
shares of stock or any other equity securities of any corporation or
have any equity interest in any firm, partnership, association or other
entity, except as described in or contemplated by the Prospectus and
any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus).
(ix) The capital stock of the Company conforms to the description
thereof contained in each of the Prospectus and any Integrated
Prospectus or, if the Prospectus and any required Integrated Prospectus
are not in existence, the most recent Preliminary Prospectus.
(x) The consolidated financial statements and schedules of the
Company and its consolidated subsidiaries included or incorporated by
reference in the Registration Statement and each of the Prospectus and
any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus) fairly present the financial position of the Company and
its consolidated
5
subsidiaries and the results of operations and changes in financial
condition as of the dates and periods therein specified. Such financial
statements and schedules have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise noted therein).
The selected consolidated financial data set forth under the caption
"Selected Consolidated Financial and Operating Data" in each of the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any
required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus) and in the Company's Annual Report on Form 10-K
for the fiscal year ended January 30, 1999 (the "ANNUAL REPORT") fairly
present, on the basis stated in each of the Prospectus and any
Integrated Prospectus (or such Preliminary Prospectus) and such Annual
Report, the information included therein.
(xi) KPMG LLP, who have audited certain financial statements of the
Company and its consolidated subsidiaries and delivered their report
with respect to the audited consolidated and combined financial
statements and schedules included in the Registration Statement and
each of the Prospectus and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in existence,
the most recent Preliminary Prospectus), are independent public
accountants as required by the Act and the applicable rules and
regulations thereunder.
(xii) The execution and delivery of this Agreement have been duly
authorized by the Company, and this Agreement has been duly executed
and delivered by the Company and is the valid and binding agreement of
the Company, enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or similar
laws affecting the rights and remedies of creditors generally and
subject to general principles of equity whether in a court of law or
equity.
(xiii) No legal or governmental proceedings are pending to which
the Company or any of its subsidiaries is a party or to which the
property of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement and each of
the Prospectus and any Integrated Prospectus, and are not described
therein (or, if the Prospectus and any required Integrated Prospectus
are not in existence, the most recent Preliminary Prospectus), and, no
such proceedings have been threatened against the Company or any of its
subsidiaries or with respect to any of its properties; and no contract
or other document is required to be described in the Registration
Statement and each of the Prospectus and any Integrated Prospectus, or
to be filed as an exhibit to the Registration Statement that is not
described therein (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary
Prospectus) or filed as required.
(xiv) The issuance, offering and sale of the Securities being
issued and sold by the Company to the Underwriters pursuant to this
Agreement, the compliance by the Company with the other provisions of
this Agreement and the consummation of the other transactions
contemplated do not (A) require the consent, approval, authorization,
6
registration or qualification of or with any governmental authority,
except such as have been obtained, such as may be required under state
securities or blue sky laws and, if the registration statement filed
with respect to the Securities (as amended) is not effective under the
Act as of the time of the execution hereof, such as may be required
(and shall be obtained as provided in this Agreement) under the Act or
(B) except as otherwise described in the Registration Statement, the
Prospectus and any Integrated Prospectus, (or, if the Prospectus and
any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus), conflict with or result in a breach or
violation of any terms and provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or any of its
properties are bound, or the charter documents or bylaws of the Company
or any of its subsidiaries or any statute or any judgment, decree,
order, rule or regulation of any court or other governmental authority
or any arbitrator applicable to the Company or any of its subsidiaries.
(xv) Subsequent to the respective dates as of which information is
given in the Registration Statement, the Prospectus or any Integrated
Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary
Prospectus), (A) neither the Company nor any of its subsidiaries has
sustained any material loss or interference with its business or
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or any
legal or governmental proceeding and there has not been any material
adverse change, or any development involving a prospective material
adverse change, in the condition (financial or otherwise), management,
business prospects, net worth or results of operations of the Company
or any of its subsidiaries; (B) neither the Company nor its
subsidiaries, if applicable, has incurred any material liability or
obligation, direct or contingent, nor entered into any material
transaction, not in the ordinary course of business; (C) neither the
Company nor any of its subsidiaries has purchased any of its
outstanding capital stock, or declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock; and (D)
there has not been any material change in the capital stock, short-term
debt or long-term debt of the Company and its consolidated
subsidiaries, except in each case of this paragraph (xv) as described
in or contemplated by each of the Prospectus and any Integrated
Prospectus or, if the Prospectus and any required Integrated Prospectus
are not in existence, the most recent Preliminary Prospectus.
(xvi) The Company has not, directly or indirectly, (A) taken any
action designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities or (B) since the filing of the
Registration Statement (1) sold, bid for, purchased or paid anyone any
compensation for soliciting purchases of, the Securities or (2) paid or
agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company (except for the sale of
Securities by the Selling Securityholder under this Agreement).
7
(xvii) The Company and each of its subsidiaries have good and
marketable title in fee simple to all items of real property and
marketable title to all personal property owned by each of them, in
each case free and clear of any security interests, liens,
encumbrances, claims and other defects, except 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 or any such subsidiary and any real property and buildings
held under lease by the Company or any such subsidiary are held under
valid, subsisting and enforceable leases, with such exceptions as 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 any such
subsidiary, in each case of this paragraph (xvii) except as described
in or contemplated by each of the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary
Prospectus).
(xviii) No labor dispute with the employees of the Company or any
of its subsidiaries exists or, to the best of the Company's knowledge,
is threatened or imminent that would have a material adverse effect on
the condition (financial or otherwise), management, business
prospects, net worth or results of operations of the Company and its
subsidiaries, except as described in or contemplated by each of the
Prospectus and any Integrated Prospectus (or, if the Prospectus and
any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus).
(xix) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent applications,
trademarks, service marks, trade names, licenses, copyrights and
proprietary or other confidential information currently used by them in
connection with their respective businesses, and neither the Company
nor any such subsidiary has received any notice of, or has any
reasonable belief that its use constitutes, an infringement of or
conflict with asserted rights of any third party with respect to any of
the foregoing which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the condition (financial or otherwise), management, business
prospects, net worth or results of operations of the Company or such
subsidiary, except as described in or contemplated by each of the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any
required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(xx) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the business
in which they are engaged; neither the Company nor any such subsidiary
has been refused any insurance coverage sought or applied for; and the
neither Company nor any such subsidiary has reason to believe that it
will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that
would not have a material adverse effect on the condition (financial or
otherwise), management, business prospects, net worth or results of
operations of the
8
Company and its subsidiaries, except as described in or contemplated by
each of the Prospectus and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in existence,
the most recent Preliminary Prospectus).
(xxi) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct its business except
where failure to possess such certificates, authorizations and permits
would not have a material adverse effect on the condition (financial or
otherwise), management, business prospects, net worth or results of
operations of the Company or any of its subsidiaries, and neither the
Company nor any such subsidiary has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the condition (financial or otherwise),
management, business prospects, net worth or results of operations of
the Company and its subsidiaries, except as described in or
contemplated by each of the Prospectus and any Integrated Prospectus
(or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus).
(xxii) The Company will conduct its operations in a manner that
will not subject it to registration as an investment company under the
Investment Company Act of 1940, as amended (the "Investment Company
Act"), and consummation of the transactions herein contemplated will
not cause the Company to become an investment company subject to
registration under the Investment Company Act.
(xxiii) The Company and its subsidiaries have filed all foreign,
federal, state and local tax returns that are required to be filed or
have requested extensions thereof (except in any case in which the
failure so to file would not have a material adverse effect on the
condition (financial or otherwise), management, business prospects, net
worth or results of operations of the Company or any of its
subsidiaries and have paid all taxes required to be paid by them and
any other assessment, fine or penalty levied against them, to the
extent that any of the foregoing is due and payable, except for any
such assessment, fine or penalty that is currently being contested in
good faith or as described in or contemplated by each of the Prospectus
and any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus) or except as would not otherwise have a material adverse
effect on the condition (financial or otherwise), management, business
prospects, net worth or results of operations of the Company and its
subsidiaries.
(xxiv) Neither the Company nor any of its subsidiaries is in
violation of any federal or state law or regulation relating to (A) the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants or to the storage, handling or transportation of hazardous
or toxic materials ("Environmental Laws") or (B) occupational safety
and health and the Company and its subsidiaries have received all
permits, licenses or other approvals required of it under applicable
federal and state Environmental Laws and
9
occupational safety and health laws and regulations to conduct their
respective businesses, and the Company and each such subsidiary is in
compliance with all terms and conditions of any such permit, license or
approval, except for any such violation of law or regulation, failure
to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals which would not, singly or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), management,
business prospects, net worth or results of operations of the Company
and its subsidiaries, except as described in or contemplated by each of
the Prospectus and any Integrated Prospectus (or, if the Prospectus and
any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus). Neither the Company nor any of its
subsidiaries has any pending or, to the best of the Company's
knowledge, threatened environmental or occupational safety and health
claims against it nor are there circumstances with respect to any
property or operations of the Company or any such subsidiary that could
reasonably be anticipated to form the basis of a claim against the
Company under any Environmental Laws or occupational health and safety
laws and regulations which, singly or in the aggregate, would have a
material adverse effect on the condition (financial or otherwise),
management, business prospects, net worth or results of operations of
the Company and its subsidiaries, except as described in or
contemplated by each of the Prospectus and any Integrated Prospectus
(or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus).
(xxv) Each certificate signed by any officer of the Company in his
or her capacity as such and delivered to the Representatives or counsel
for the Underwriters shall be deemed to be a representation and
warranty by the Company to each Underwriter as to the matters covered
thereby.
(xxvi) The Company and each of its subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with
management's general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to
maintain asset accountability; (C) access to assets is permitted only
in accordance with management's general or specific authorization;
and (D) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(xxvii) Except as disclosed in each of the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus), no default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or any of their
respective properties is bound, except any such default that would not
have a material
10
adverse effect on the condition (financial or otherwise), management,
business prospects, net worth or results of operations of the Company
and its subsidiaries.
(xxviii) Except as disclosed in each of the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus), there are no outstanding (A) 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, (B)
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 (C)
obligations of the Company or any such subsidiary to issue any shares
of capital stock, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options.
(xxix) The Company has not distributed and, prior to the later of
(A) the Firm Closing Date and (B) the completion of the distribution of
the Securities, will not distribute any offering material in connection
with the offering and sale of the Securities other than the
Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus, or any materials, if any, permitted by
the Act.
(xxx) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company,
from making any other distribution on such subsidiary's capital
stock, from repaying to the Company any loans or advances to such
subsidiary from the Company or from transferring any of such
subsidiary's property or assets to the Company or any other
subsidiary of the Company, except as to the restriction set forth in
the Company's existing credit agreement or as described in or
contemplated by each of the Prospectus and any Integrated Prospectus
(or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus).
(b) The Selling Securityholder represents and warrants to, and agrees
with, each of the several Underwriters that:
(i) The Selling Securityholder has been duly organized and is
validly existing as a corporation under the laws of its jurisdiction of
incorporation and is duly qualified to transact business as a foreign
corporation and is in good standing under the laws of all other
jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to be so qualified does not amount to a material liability or
disability to such Selling Securityholder.
(ii) Such Selling Securityholder has full power and authority
(corporate and other) to enter into this Agreement and to sell, assign,
transfer and deliver to the Underwriters the Securities to be sold by
such Selling Securityholder hereunder in accordance with the terms of
this Agreement; and this Agreement has been duly executed and delivered
by such Selling Securityholder and is the valid and binding agreement
of such Selling
11
Securityholder, enforceable against such Selling Securityholder in
accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or similar laws affecting the rights and remedies of
creditors generally and subject to general principles of equity whether
in a court of law or equity.
(iii) Such Selling Securityholder has duly executed and delivered
a power of attorney and custody agreement (with respect to such Selling
Securityholder, the "Custody Agreement") in the form heretofore
delivered to the Representatives, appointing Xxxxx X. Xxx, Xxxxxx X.
Xxxxxxxxx, Xxxx X. Xxxxxxxxxx and each of them as such Selling
Securityholder's attorney-in-fact (the "Attorneys-in-Fact") with
authority to execute, deliver and perform this Agreement on behalf of
the Selling Securityholder and appointing First Chicago Trust Company
of New York as custodian thereunder (the "Custodian"). Certificates in
negotiable form, endorsed in blank or accompanied by blank stock powers
duly executed, with signatures appropriately guaranteed, representing
the Securities to be sold by such Selling Securityholder hereunder have
been deposited with the Custodian pursuant to the Custody Agreement for
the purpose of delivery pursuant to this Agreement. Such Selling
Securityholder has full power and authority (corporate and other) to
enter into the Custody Agreement and to perform its obligations under
the Custody Agreement. The Custody Agreement has been duly executed and
delivered by such Selling Securityholder and, assuming due
authorization, execution and delivery by the Custodian, is the valid
and binding agreement of such Selling Securityholder, enforceable
against such Selling Securityholder in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or similar laws
affecting the rights and remedies of creditors generally and subject to
general principles of equity whether in a court of law or equity.
(iv) Such Selling Securityholder agrees that each of the
Securities represented by the certificates held in custody under the
Custody Agreement is subject to the interests of the Underwriters
hereunder, that the arrangements made for such custody, the
appointment of the Attorneys-in-Fact and the right, power and
authority of the Attorneys-in-Fact to execute and deliver this
Agreement, to agree on the price at which the Securities (including
the Selling Securityholder's Securities) are to be sold to the
Underwriters, and to carry out the terms of this Agreement, are to
the extent provided in the Custody Agreement irrevocable and that the
obligations of the Selling Securityholder hereunder shall not be
terminated, except as provided in this Agreement or the Custody
Agreement, by any act of the Selling Securityholder, by operation of
law or otherwise.
(v) Such Selling Securityholder is the lawful record and
beneficial owner of the Securities to be sold by the Selling
Securityholder hereunder and upon sale and delivery of, and payment
for, such Securities as provided herein, the Selling Securityholder
will convey good and marketable title to such Securities, free and
clear of any security interests, liens, encumbrances, claims or other
defects.
12
(vi) Such Selling Securityholder has not, directly or indirectly,
(A) taken any action designed to cause or result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities or (B) since
the filing of the Registration Statement (1) sold, bid for, purchased
or paid anyone any compensation for soliciting purchases of, the
Securities or (2) paid or agreed to pay to any person any compensation
for soliciting another to purchase any other securities of the Company
(except for the sale of Securities by such Selling Securityholder under
this Agreement).
(vii) The sale by such Selling Securityholder of Securities
pursuant hereto is not prompted by any adverse information concerning
the Company that is not set forth in the Registration Statement, the
Prospectus or any Integrated Prospectus (or, if the Prospectus and any
required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(viii) The sale of the Securities to the Underwriters by such
Selling Securityholder pursuant to this Agreement, the compliance by
such Selling Securityholder with the other provisions of this Agreement
and the Custody Agreement and the consummation of the other
transactions contemplated hereby do not (A) require the consent,
approval, authorization, registration or qualification of or with any
governmental authority, except such as has been obtained, such as may
be required under state securities or blue sky laws and, if the
registration statement filed with respect to the Securities (as
amended) is not effective under the Act as of the time of execution
hereof, such as may be required (and shall be obtained as provided in
this Agreement) under the Act or (B) conflict with or result in a
breach or violation of any of the terms and provisions of, or
constitute a default under any indenture, mortgage, deed of trust,
lease or other material agreement or instrument to which such Selling
Securityholder is a party or by which such Selling Securityholder or
any of such Selling Securityholder's properties are bound, or any
statute or any judgment, decree, order, rule or regulation of any court
or other governmental authority or any arbitrator applicable to such
Selling Securityholder.
(ix) To the extent that any statements or omissions are made in
the Registration Statement, any Preliminary Prospectus, the Prospectus
or any Integrated Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to
the Company by such Selling Securityholder specifically for use
therein, such information in the Preliminary Prospectus, the
Registration Statement, the Prospectus or any Integrated Prospectus and
any amendments or supplements thereto, when they become effective or
are filed with the Commission, as the case may be, did and will conform
in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they are made,
not misleading. Such Selling Securityholder has reviewed each of the
Prospectus and any Integrated Prospectus (or if the Prospectus and any
required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus) and the Registration Statement, and
13
the information regarding such Selling Securityholder set forth therein
under the caption "Principal and Selling Stockholders" is complete and
accurate.
(x) Such Selling Securityholder has not distributed and, prior to
the later of (A) the Firm Closing Date and (B) the completion of the
distribution of the Securities, will not distribute any offering
material in connection with the offering and sale of the Securities
other than the Registration Statement or any amendment thereto, any
Preliminary Prospectus and the Prospectus or any supplement or
amendment thereto, or any materials, if any, permitted by the Act.
3. PURCHASE, SALE AND DELIVERY OF THE SECURITIES.
(a) On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions herein set
forth, the Company agrees to issue and sell to, and the Selling Securityholder
agrees to sell to, each of the Underwriters, and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company and the Selling
Securityholder at a purchase price of ___ per share, the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule 1 hereto.
The Company's Firm Securities shall consist of 2,000,000 shares of Common Stock
and the Selling Securityholder's Firm Securities shall consist of 1,500,000
shares of Common Stock. The number of Firm Securities to be purchased by each
Underwriter from the Company and the Selling Securityholder shall be as nearly
as practicable in the same proportion to the total number of Firm Securities
being sold by the Company and the Selling Securityholder (with the number of
shares to be sold by the Selling Securityholder being set forth opposite such
Selling Securityholder's name in Schedule 2 hereto) as the total number of Firm
Securities to be purchased by such Underwriter bears to the total number of Firm
Securities to be purchased by the Underwriters hereunder. One or more
certificates in definitive form for the Firm Securities that the several
Underwriters have agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Representatives
request upon notice to the Company and the Selling Securityholder at least 48
hours prior to the Firm Closing Date, shall be delivered by or on behalf of the
Company and the Selling Securityholder to the Representatives for the respective
accounts of the Underwriters, against payment by or on behalf of the
Underwriters of the purchase price therefor by wire transfer payable in same-day
funds (the "Wired Funds") to the account of the Company in the case of the
Company's Firm Securities and to the order of the Custodian in the case of the
Selling Securityholder's Firm Securities. Such delivery of and payment for the
Firm Securities shall be made at the offices of King & Xxxxxxxx, 0000 Avenue of
the Americas, Xxx Xxxx, Xxx Xxxx 00000-0000 at 9:30 A.M., New York City time, on
________; or at such other place, time or date as the Representatives and the
Company may agree upon or as the Representatives may determine pursuant to
Section 9 hereof, such time and date of delivery against payment being herein
referred to as the "Firm Closing Date". The Company and the Selling
Securityholder will make such certificate or certificates for the Firm
Securities available for checking and packaging by the Representatives at the
offices of the Company's transfer agent or registrar or of Prudential Securities
Incorporated in New York, New York at least 24 hours prior to the Firm Closing
Date.
14
(b) For the purpose of covering any over-allotments in connection with
the distribution and sale of the Firm Securities as contemplated by the
Prospectus, the Selling Securityholder hereby grants to the several Underwriters
an option to purchase, severally and not jointly, the Option Securities. The
purchase price to be paid for any Option Securities shall be the same price per
share as the price per share for the Firm Securities set forth above in
paragraph (a) of this Section 3, plus if the purchase and sale of any Option
Securities takes place after the Firm Closing Date and after the Firm Securities
are trading "ex- dividend", an amount equal to the dividend payable on such
Option Securities. The option granted hereby may be exercised as to all or any
part of the Option Securities from time to time within thirty days after the
date of the Prospectus (or, if such 30th day shall be a Saturday or Sunday or a
holiday, on the next business day thereafter when the Nasdaq Stock Market's
National Market (the "Nasdaq National Market") is open for trading). The
Underwriters shall not be under any obligation to purchase any of the Option
Securities prior to the exercise of such option. The Representatives may from
time to time exercise the option granted hereby by giving notice in writing or
by telephone (confirmed in writing) to the Selling Securityholder setting forth
the aggregate number of Option Securities as to which the several Underwriters
are then exercising the option and the date and time for delivery of and payment
for such Option Securities. Any such date of delivery shall be determined by the
Representatives but shall not be earlier than two business days or later than
five business days after such exercise of the option and, in any event, shall
not be earlier than the Firm Closing Date. The time and date set forth in such
notice, or such other time on such other date as the Representatives and the
Selling Securityholder may agree upon or as the Representatives may determine
pursuant to Section 9 hereof, is herein called the "Option Closing Date" with
respect to such Option Securities. Upon exercise of the option as provided
herein, the Selling Securityholder shall become obligated to sell to each of the
several Underwriters, and, subject to the terms and conditions herein set forth,
each of the Underwriters (severally and not jointly) shall become obligated to
purchase from the Company, the same percentage of the total number of the Option
Securities as to which the several Underwriters are then exercising the option
as such Underwriter is obligated to purchase of the aggregate number of Firm
Securities, as adjusted by the Representatives in such manner as they deem
advisable to avoid fractional shares. If the option is exercised as to all or
any portion of the Option Securities, one or more certificates in definitive
form for such Option Securities, and payment therefor, shall be delivered on the
related Option Closing Date in the manner, and upon the terms and conditions,
set forth in paragraph (a) of this Section 3 with respect to the sale of the
Firm Securities, except that reference therein to the Firm Securities and the
Firm Closing Date shall be deemed, for purposes of this paragraph (b), to refer
to such Option Securities and Option Closing Date, respectively.
(c) The Company and the Selling Securityholder hereby acknowledge that
the wire transfer by or on behalf of the Underwriters of the purchase price for
any Securities does not constitute the closing of a purchase and sale of the
Securities. Only execution and delivery of a receipt for Securities by the
Underwriters indicates completion of the closing of a purchase of the Securities
from the Company and the Selling Securityholder. Furthermore, in the event that
the Underwriters wire funds to the Company and the Selling Securityholder prior
to the completion of the closing of a purchase of the Securities, the Company
and the Selling Securityholder hereby acknowledge that until the Underwriters
execute and deliver a receipt for the Securities, by facsimile or otherwise, the
Company and the Selling Securityholder will not be entitled to the
15
Wired Funds and shall return the Wired Funds to the Underwriters as soon as
practicable (by wire transfer of same-day funds) upon demand. In the event that
the closing of a purchase of the Securities is not completed and the Wired Funds
are not returned by the Company and the Selling Securityholder to the
Underwriters on the same day the Wired Funds were received by the Company and
the Selling Securityholder, the Company and the Selling Securityholder agree to
pay to the Underwriters in respect of each day the Wired Funds are not returned
by it, in same-day funds, interest on the amount of Wired Funds in an amount
representing the Underwriters' cost of financing as reasonably determined by
Prudential Securities Incorporated. Upon satisfactory receipt of the Securities
by the Underwriters in accordance with all the terms of this Agreement and the
compliance by the Company and the Selling Securityholder with all terms of this
Agreement to be performed on or before the Closing Date, the Underwriters shall
execute the receipt described above for the Securities.
(d) It is understood that any of you, individually and not as one of
the Representatives, may (but shall not be obligated to) make payment on behalf
of any Underwriter or Underwriters for any of the Securities to be purchased by
such Underwriter or Underwriters. No such payment shall relieve such Underwriter
or Underwriters from any of its or their obligations hereunder.
4. OFFERING BY THE UNDERWRITERS. Upon your authorization of the release
of the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale to the public upon the terms set forth in the Prospectus.
5. COVENANTS OF THE COMPANY AND THE SELLING SECURITYHOLDER.
(a) The Company covenants and agrees with each of the Underwriters
that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of
this Agreement, and any amendments thereto to become effective as
promptly as possible. If required, the Company will file the
Prospectus or any Term Sheet that constitutes a part thereof and any
amendment or supplement thereto with the Commission in the manner and
within the time period required by Rules 434 and 424(b) under the
Act. During any time when a prospectus relating to the Securities is
required to be delivered under the Act, the Company (A) will comply
with all requirements imposed upon it by the Act and the rules and
regulations of the Commission thereunder to the extent necessary to
permit the continuance of sales of or dealings in the Securities in
accordance with the provisions hereof and of each of the Prospectus
and any Integrated Prospectus, as then amended or supplemented, and
(B) will not file with the Commission the Prospectus, Term Sheet or
the amendment referred to in the second sentence of Section 2(a)(i)
hereof, any amendment or supplement to such Prospectus, Term Sheet or
any amendment to the Registration Statement or any Rule 462(b)
Registration Statement of which the Representatives previously have
been advised and furnished with a copy for a reasonable period of
time prior to the proposed filing and as to which filing the
Representatives shall not have given their consent, which consent
shall not have been unreasonably withheld. The Company will prepare
and file with the Commission, in accordance with the rules and
regulations of the Commission, promptly
16
upon request by the Representatives or counsel for the Underwriters,
any amendments to the Registration Statement or any Rule 462(b)
Registration Statement or amendments or supplements to the Prospectus
and any Integrated Prospectus that may be necessary or advisable in
connection with the distribution of the Securities by the several
Underwriters, and will use its best efforts to cause any such amendment
to the Registration Statement to be declared effective by the
Commission as promptly as possible. The Company will advise the
Representatives, promptly after receiving notice thereof, of the time
when the Registration Statement or any amendment thereto has been filed
or declared effective or the Prospectus and any Integrated Prospectus
or any amendment or supplement thereto has been filed and will provide
evidence reasonably satisfactory to the Representatives of each such
filing or effectiveness.
(ii) The Company will advise the Representatives, promptly after
receiving notice or obtaining knowledge thereof, of (A) the issuance by
the Commission of any stop order suspending the effectiveness of the
Original Registration Statement or any Rule 462(b) Registration
Statement or any amendment thereto or any order directed at any
document incorporated by reference in the Registration Statement or if
the Prospectus and any required Integrated Prospectus or any amendment
or supplement thereto is subject to any order preventing or suspending
the use of any Preliminary Prospectus, Prospectus and any Integrated
Prospectus or any amendment or supplement thereto, (B) the suspension
of the qualification of the Securities for offering or sale in any
jurisdiction, (C) the institution, threatening or contemplation of any
proceeding for any such purpose or (D) any request made by the
Commission for amending the Original Registration Statement or any Rule
462(b) Registration Statement, for amending or supplementing any
Preliminary Prospectus, the Prospectus and any Integrated Prospectus or
for additional information. The Company will use its best efforts to
prevent the issuance of any such stop order and, if any such stop order
is issued, to obtain the withdrawal thereof as promptly as possible.
(iii) The Company will arrange for the qualification of the
Securities for offering and sale under the securities or blue sky laws
of such jurisdictions as the Representatives may designate and will
continue such qualifications in effect for as long as may be necessary
to complete the distribution of the Securities; PROVIDED, HOWEVER, that
in connection therewith the Company shall not be required to qualify as
a foreign corporation or to execute a general consent to service of
process in any jurisdiction.
(iv) If, at any time prior to the later of (A) the final date when
a prospectus relating to the Securities is required to be delivered
under the Act or (B) the Option Closing Date, any event occurs as a
result of which each of the Prospectus and any Integrated Prospectus,
as then amended or supplemented, would include any untrue statement of
a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if for any other reason it is
necessary at any time to amend or supplement the Prospectus or any
Integrated Prospectus to comply with the Act or the rules or
regulations of the Commission thereunder, the Company will promptly
notify the Representatives thereof
17
and, subject to Section 5(a)(i) hereof, will prepare and file with the
Commission, at the Company's expense, an amendment to the Registration
Statement or an amendment or supplement to the Prospectus or any
Integrated Prospectus that corrects such statement or omission or
effects such compliance.
(v) The Company will, without charge, provide (A) to each of the
Representatives and counsel for the Underwriters a signed copy of the
registration statement originally filed with respect to the Securities
and each amendment thereto and any Rule 462(b) Registration Statement
(in each case including exhibits thereto), (B) to each other
Underwriter, a conformed copy of such registration statement or any
Rule 462(b) Registration Statement and each amendment thereto (in each
case without exhibits thereto) and (C) so long as a prospectus relating
to the Securities is required to be delivered under the Act, as many
copies of each Preliminary Prospectus, the Prospectus or any Integrated
Prospectus any amendment or supplement thereto as the Representatives
may reasonably request; without limiting the application of clause (C)
of this sentence, the Company, not later than (1) 6:00 PM, New York
City time, on the date of determination of the public offering price,
if such determination occurred at or prior to 10:00 AM, New York City
time, on such date or (2) 2:00 PM, New York City time, on the business
day following the date of determination of the public offering price,
if such determination occurred after 10:00 AM, New York City time, on
such date, will deliver to the Underwriters, without charge, as many
copies of the Prospectus and any amendment or supplement thereto as the
Representatives may reasonably request for purposes of confirming
orders that are expected to settle on the Firm Closing Date.
(vi) The Company, as soon as practicable, will make generally
available to its securityholders and to the Representatives a
consolidated earnings statement of the Company and its subsidiaries
that satisfies the provisions of Section 11(a) of the Act and Rule 158
thereunder.
(vii) The Company will apply the net proceeds from the sale of the
Securities as set forth under "Use of Proceeds" in the Prospectus or
any Integrated Prospectus.
(viii) The Company will not, directly or indirectly, without the
prior written consent of Prudential Securities Incorporated, on behalf
of the Underwriters, offer, sell, offer to sell, contract to sell,
pledge, grant any option to purchase or otherwise sell or dispose (or
announce any offer, sale, offer of sale, contract of sale, pledge,
grant of any option to purchase or other sale or disposition) of any
shares of Common Stock or any securities convertible into, or
exchangeable or exercisable for, shares of Common Stock or other
capital stock of the Company, or any right to purchase or acquire
Common Stock or other capital stock of the Company for a period of 120
days after the date hereof, except (A) pursuant to this Agreement and
(B) (i) for issuances of options pursuant to stock option plans and
employment agreements in existence on the date hereof (including any
possible increases in the number of options awardable thereunder), (ii)
the issuance of shares of Common Stock to employees in connection with
an employee stock purchase plan which may be adopted after the date
hereof, or (iii) as disclosed in the Prospectus and any
18
Integrated Prospectus (or if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary
Prospectus); provided, however, that in the case of (B)(i) or (B)(ii),
to the extent the recipient of any such options or shares is a person
or Shareholder identified in Section 7(g) hereof, then such person or
Shareholder shall agree to have such options or shares, as the case may
be, covered by the agreement referred to in Section 7(g) hereof prior
to the issuance of such options or shares.
(ix) The Company will not, directly or indirectly, (A) take any
action designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities or (B) (1) sell, bid for,
purchase, or pay anyone any compensation for soliciting purchases of,
the Securities or (2) pay or agree to pay to any person any
compensation for soliciting another to purchase any other securities of
the Company (except for the sale of Securities by the Selling
Securityholder under this Agreement).
(x) If at any time during the 25-day period after the Registration
Statement becomes effective or the period prior to the Option Closing
Date, any rumor, publication or event relating to or affecting the
Company or its subsidiaries shall occur as a result of which in your
reasonable opinion 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 any Integrated Prospectus), the Company will, after
notice from you advising the Company to the effect set forth above,
forthwith prepare, consult with you concerning the substance of, and
disseminate a press release or other public statement, reasonably
satisfactory to you, responding to or commenting on such rumor,
publication or event.
(xi) The Company will obtain the agreements described in Section
7(g) hereof from all persons other than the Selling Securityholder
prior to the Firm Closing Date.
(xii) The Company will cause the Securities to be issued and sold
by it to be duly included for quotation on the Nasdaq National Market
prior to the Firm Closing Date. The Company will ensure that the
Securities remain included for quotation on the Nasdaq National Market
or will be listed on a national exchange following the Firm Closing
Date for a period of at least two years.
(xiii) During a period of five years from the effective date of
the Registration Statement, the Company will furnish to you and, upon
request, to each of the other Underwriters, without charge, (A) copies
of all reports or other communications (financial or other) furnished
to securityholders, (B) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange and (C) such additional
publicly available information concerning the business and financial
condition of the Company and its subsidiaries, if any, as you may
reasonably request.
19
(xiv) If the Company elects to rely on Rule 462(b), the Company
shall both file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) and pay the applicable fees
in accordance with Rule 111 promulgated under the Act by the earlier of
(A) 10:00 P.M. Eastern time on the date of this Agreement and (B) the
time confirmations are sent or given, as specified by Rule 462(b)(2).
(b) The Selling Securityholder covenants and agrees with each of the
Underwriters that:
(i) Such Selling Securityholder will not, directly or indirectly,
without the prior written consent of Prudential Securities
Incorporated, on behalf of the Underwriters, offer, sell, offer to
sell, contract to sell, pledge, grant any option to purchase or
otherwise sell or dispose (or announce any offer, sale, offer of sale,
contract of sale, pledge, grant of any option to purchase or other sale
or disposition) of any shares of Common Stock or any securities
convertible into, or exchangeable or exercisable for, Common Stock or
other capital stock of the Company, or any right to purchase or acquire
Common Stock or other capital stock of the Company for a period of 120
days after the date hereof, except (A) pursuant to this Agreement or
(B) as consented to in writing by Prudential Securities Incorporated.
(ii) Such Selling Securityholder will not, directly or indirectly,
(A) take any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities or (B) (1)
sell, bid for, purchase, or pay anyone any compensation for soliciting
purchases of, the Securities or (2) pay or agree to pay to any person
any compensation for soliciting another to purchase any other
securities of the Company (except for the sale of Securities by the
Selling Securityholder under this Agreement).
(iii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Internal Revenue Code of
1986, as amended, with respect to the transactions herein contemplated,
such Selling Securityholder agrees to deliver to the Representatives
prior to or on the Firm Closing Date a properly completed and executed
United States Treasury Department Form W-8 or W-9 (or other applicable
form or statement specified by the Treasury Department regulations in
lieu thereof).
6. EXPENSES. The Company will pay all costs and expenses incident to
the performance of the obligations of the Company and the Selling Securityholder
under this Agreement, whether or not the transactions contemplated herein are
consummated or this Agreement is terminated pursuant to Section 12 hereof,
including all costs and expenses incident to (a) the printing or other
production of documents with respect to the transactions, including any costs of
printing the registration statement originally filed with respect to the
Securities and any amendment thereto, any Rule 462(b) Registration Statement,
any Preliminary Prospectus, the Prospectus and any Integrated Prospectus and any
amendment or supplement thereto, this Agreement and any blue sky memoranda, (b)
all arrangements relating to the delivery to the Underwriters of copies of the
foregoing documents, (c) the fees and disbursements of the counsel, the
accountants and
20
any other experts or advisors retained by the Company, (d) preparation, issuance
and delivery to the Underwriters of any certificates evidencing the Securities,
including transfer agent's and registrar's fees and the Custodian's fees, (e)
the qualification of the Securities under state securities and blue sky laws,
including filing fees and reasonable fees and disbursements of counsel for the
Underwriters relating thereto, (f) the filing fees of the Commission and the
National Association of Securities Dealers, Inc. relating to the Securities, (g)
the listing of the Securities on the Nasdaq National Market, (h) any meetings
with prospective investors in the Securities (other than as shall have been
specifically approved by the Representatives to be paid for by the Underwriters)
and (i) advertising relating to the offering of the Securities (other than as
shall have been specifically approved by the Representatives to be paid for by
the Underwriters). Any transfer taxes imposed on the sale of the Securities to
the several Underwriters will be paid by the Company and the Selling
Securityholder pro rata. If the sale of the Securities provided for herein is
not consummated because any condition to the obligations of the Underwriters set
forth in Section 7 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 12 hereof (other than Section 12(a)(v) hereof) or because of
any failure, refusal or inability on the part of the Company or the Selling
Securityholder to perform all obligations and satisfy all conditions on its part
to be performed or satisfied hereunder other than by reason of a default by any
of the Underwriters, the Company will reimburse the Underwriters upon demand for
all reasonable out-of-pocket expenses (including reasonable counsel fees and
disbursements) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities. The Company and the Selling
Securityholder shall not in any event be liable to any of the Underwriters for
the loss of anticipated profits from the transactions covered by this Agreement.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company and the Selling Securityholder
contained herein as of the date hereof and as of the Firm Closing Date, as if
made on and as of the Firm Closing Date, to the accuracy of the statements of
the Company's officers made pursuant to the provisions hereof, to the
performance by the Company and the Selling Securityholder of its covenants and
agreements hereunder and to the following additional conditions:
(a) If the Original Registration Statement or any amendment thereto
filed prior to the Firm Closing Date has not been declared effective as of the
time of execution hereof, the Original Registration Statement or such amendment
and, if the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have been declared effective not later than the
earlier of (i) 11:00 A.M., New York time, on the date on which the amendment to
the registration statement originally filed with respect to the Securities or to
the Registration Statement, as the case may be, containing information regarding
the public offering price of the Securities has been filed with the Commission
and (ii) the time confirmations are sent or given as specified by Rule 462(b)(2)
or, with respect to the Original Registration Statement, such later time and
date as shall have been consented to by the Representatives; if required, the
Prospectus and any Integrated Prospectus or any Term Sheet that constitutes a
part thereof and any amendment or
21
supplement thereto shall have been filed with the Commission in the manner and
within the time period required by Rules 434 and 424(b) under the Act; no stop
order suspending the effectiveness of the Registration Statement, or the
Prospectus or any Integrated Prospectus or any amendment thereto shall have been
issued, and no proceedings for that purpose shall have been instituted or
threatened or, to the knowledge of the Company or the Representatives, shall be
contemplated by the Commission; and the Company shall have complied with any
request of the Commission for additional information (to be included in the
Registration Statement, the Prospectus or any Integrated Prospectus or
otherwise).
(b) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx LLP, counsel for
the Company, to the effect that:
(i) The Company, and each of its domestic subsidiaries (the
"DOMESTIC SUBSIDIARIES") have been duly organized and are validly
existing as corporations in good standing under the laws of their
respective jurisdictions and are duly qualified to transact business as
foreign corporations and are in good standing under the laws of all
other jurisdictions where the ownership or leasing of their respective
properties or the conduct of their respective businesses requires such
qualification, except where the failure to be so qualified would not
have a material adverse effect on the condition (financial or
otherwise), management, business prospects, net worth or results of
operations of the Company and its subsidiaries.
(ii) Except as disclosed in the Prospectus, the Company and each
of the Company's Domestic Subsidiaries listed in the Company's Annual
Report have the corporate power to own or lease their respective
properties and conduct their respective businesses as described in the
Registration Statement and the Prospectus or any Integrated Prospectus,
and the Company has the corporate power to enter into this Agreement
and to carry out all the terms and provisions hereof to be carried out
by it.
(iii) The Company has an authorized, issued and outstanding
capitalization as set forth in each of the Prospectus or any Integrated
Prospectus; all of the issued shares of capital stock of the Company
(including but not limited to the Securities being sold by the Selling
Securityholder) have been duly authorized and validly issued and are
fully paid and nonassessable, have been issued in compliance with all
applicable federal and state securities laws and were not issued in
violation of or subject to any statutory or, to such counsel's
knowledge, contractual preemptive rights or other rights to subscribe
for or purchase securities; the Securities being issued and sold by the
Company have been duly authorized by all necessary corporate action of
the Company and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be validly issued, fully
paid and nonassessable; the Securities have been duly listed for
trading on the Nasdaq National Market; no holders of outstanding shares
22
of capital stock of the Company are entitled as such to any preemptive
or other rights to subscribe for any of the Securities; and, except as
disclosed in the Prospectus or any Integrated Prospectus, no holders of
securities of the Company are entitled to have such securities
registered under the Registration Statement.
(iv)(A) the issued and outstanding shares of capital stock of each
of the Domestic Subsidiaries have been duly authorized and validly
issued and are fully paid and nonassessable and, to the knowledge of
such counsel, are owned beneficially by the Company free and clear of
security interests, liens, encumbrances or claims and (B) to the
knowledge of such counsel, other than the subsidiaries listed in the
Annual Report (the "SUBSIDIARIES"), the Company does not directly or
indirectly own any shares of stock or any other equity securities of
any corporation or have any direct or indirect equity interest in any
firm, partnership, association or other entity, which corporation,
firm, partnership, association or other entity would, individually or
when aggregated with all such other corporations, firms, partnerships,
associations or other entities, be considered a "significant
subsidiary" within the meaning of Rule 1-02 of Regulation S-X under the
Act.
(v) The capital stock of the Company conforms as to legal matters
in all material respects to the description thereof contained in each
of the Prospectus and any Integrated Prospectus under the heading
"Business - Legal Proceedings" in each of the Prospectus and any
Integrated Prospectus, insofar as such statements constitute a summary
of the legal matters, documents and proceedings referred to therein,
provide a fair summary of such legal matters, documents and
proceedings.
(vi) The execution and delivery of this Agreement have been duly
authorized by all necessary corporate action of the Company, and this
Agreement has been duly executed and delivered by the Company.
(vii) To such counsel's knowledge, (A) no legal or governmental
proceedings are pending to which the Company or any of the Subsidiaries
is a party or to which the property of the Company or any of the
Subsidiaries is subject that are required to be described in the
Registration Statement, the Prospectus and any Integrated Prospectus
and are not described therein, no such proceedings have been threatened
against the Company or any of the Subsidiaries or with respect to any
of their respective properties and (B) all contracts or other documents
required by Item 601 of Regulation S-K to be filed as exhibits to the
Registration Statement have been so filed.
(viii) Except as disclosed in the Prospectus, the issuance,
offering and sale of the Securities being issued and sold by the
Company to the Underwriters pursuant to this Agreement, the compliance
by the Company with the other provisions of this Agreement and the
consummation of the transactions herein contemplated do
23
not (A) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as
have been obtained and such as may be required under state securities
or blue sky laws or (B) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, (1) any indenture, mortgage, deed of trust, lease or
other agreement or instrument filed as an exhibit to the Registration
Statement or any other material agreement otherwise known to such
counsel to which the Company or any of the Subsidiaries is a party or
by which the Company or any of the Subsidiaries or any of their
respective properties are bound, (2) the charter documents or by-laws
of the Company or any of the Subsidiaries, or (3) any statute, rule or
regulation, or any judgment, decree or order of any court or other
governmental authority or any arbitrator known to such counsel, and
applicable to the Company or any of the Subsidiaries.
(ix) To the knowledge of such counsel, (A) the Company and the
Subsidiaries possess all certificates, authorizations and permits
issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, the
absence of which could have a material adverse effect on the condition
(financial or otherwise), management, business prospects, net worth or
results of operations of the Company and the Subsidiaries, and (B)
neither the Company nor any of the Subsidiaries has received any notice
of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
have a material adverse effect on the condition (financial or
otherwise), management, business prospects, net worth or results of
operations of the Company and the Subsidiaries, except, in all cases,
as described in or contemplated by the Prospectus and any Integrated
Prospectus.
(x) The Registration Statement is effective under the Act; any
required filing of the Prospectus and any Integrated Prospectus, or any
Term Sheet that constitutes a part thereof, pursuant to Rules 434 and
424(b) has been made in the manner and within the time period required
by Rules 434 and 424(b); and, to such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement or any
amendment thereto has been issued, and no proceedings for that purpose
have been instituted or, to the knowledge of such counsel, are
contemplated or threatened by the Commission.
(xi) The registration statement originally filed with respect to
the Securities and each amendment thereto, any Rule 462(b)
Registration Statement, the Prospectus and any Integrated Prospectus
(in each case other than the financial statements and other financial
information contained therein, as to which such counsel need express
no opinion) comply as to form in all material respects with the
applicable requirements of the Act and the rules and regulations of
the Commission thereunder.
24
(xii) The Company is not an "investment company" under the
Investment Company Act, and consummation of the transactions herein
contemplated will not cause the Company to become an investment company
subject to registration under the Investment Company Act.
(xiii) To such counsel's knowledge, except as disclosed in the
Prospectus and any Integrated Prospectus, there are no outstanding (A)
securities or obligations of the Company convertible into or
exchangeable for any capital stock of the Company, (B) warrants, rights
or options to subscribe for or purchase from the Company any such
capital stock or any such convertible or exchangeable securities or
obligations, or (C) obligations of the Company to issue any shares of
capital stock, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options.
(xiv) If the Company elects to rely on Rule 434, the Prospectus is
not "materially different," as such term is used in Rule 434, from the
prospectus included in the Registration Statement at the time of its
effectiveness or any effective post-effective amendment thereto
(including such information that is permitted to be omitted pursuant to
Rule 430A).
Such counsel shall also state that they have participated in
conferences with officers and representatives of the Company at which the
contents of the Prospectus, and Integrated Prospectus and the Registration
Statement and related matters and documents were discussed. The limitations
inherent in the review of factual and other matters included in or contemplated
by the Prospectus, and Integrated Prospectus and the Registration Statement and
the character of determinations involved in the registration process are such,
however, that such counsel does not make any warranty or representation
concerning, or assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Prospectus and the Registration
Statement (other than as set forth in Section 7(b)(v) hereof). Based upon and
subject to the foregoing, nothing has come to such counsel's attention which
would lead them to believe that (A) the Registration Statement and any amendment
thereto (other than the financial statements, including the notes thereto, and
schedules and other financial and statistical data included therein, as to which
they express no belief nor render any opinion), as of its respective effective
date, contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or (B) the Prospectus and any Integrated
Prospectus (other than the financial statements, including the notes thereto,
and schedules and other financial and statistical data included therein, as to
which they express no belief nor render any opinion), as of its date or the date
of such opinion, contained or contains any untrue statement of a material fact
or omitted or omits to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
25
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials.
References to the Registration Statement, the Prospectus and any
Integrated Prospectus in this paragraph (b) shall include any amendment or
supplement thereto at the date of such opinion.
(c) The Representatives shall have received an opinion, dated the Firm
Closing Date of, Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx LLP, counsel for
the Selling Securityholder, to the effect that:
(i) Such Selling Securityholder has been duly incorporated and is
validly existing as a corporation under the laws of its jurisdiction of
incorporation and has the corporate power to own, lease and operate its
properties and to execute, deliver and perform this Agreement and the
Custody Agreement.
(ii) Such Selling Securityholder has full corporate power and
authority to enter into this Agreement and the Custody Agreement. Such
Selling Securityholder has duly authorized, executed and delivered this
Agreement and the Custody Agreement, and the Custody Agreement
constitutes the valid and binding agreement of such Selling
Securityholder enforceable against such Selling Securityholder in
accordance with its respective terms, except as such enforceability may
be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or similar laws now or hereafter in effect
relating to creditors' rights generally and subject to general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
(iii) Immediately prior to the delivery of the Securities being
sold by such Selling Securityholder, such Selling Securityholder was
the sole registered owner of such Securities and, upon registration
of such Securities in the names of the purchasers thereof or their
nominees, assuming that such purchasers purchased such Securities for
value, in good faith without notice of any adverse claim (as defined
in Section 8- 102 and as specified in Section 8-105 of the Uniform
Commercial Code in effect in the state of New York), such purchasers
will have acquired all the rights of such Selling Securityholder in
such Securities free of any adverse claim, any lien in favor of the
Company or restrictions on transfer imposed by the Company.
(iv) Except as disclosed in the Prospectus and any Integrated
Prospectus, the sale of the Securities to the Underwriters by the
Selling Securityholder pursuant to this Agreement, the compliance by
the Selling Securityholder with the other provisions of this Agreement
and the Custody Agreement and the consummation of the other
transactions herein contemplated do not (A) require the consent,
approval, authorization, registration or qualification of or with any
governmental authority, except such as has been obtained and such as
may be required under state securities or blue sky laws or (B) conflict
with or
26
result in a breach or violation of any of the terms and provisions of,
or constitute a default under any indenture, mortgage, deed of trust,
lease or other material agreement or instrument to which a Selling
Securityholder is a party or by which a Selling Securityholder or any
of such Selling Securityholder's properties are bound, or any statute
or any judgment, decree, order, rule or regulation of any court or
other governmental authority or any arbitrator known to such counsel
applicable to such Selling Securityholder.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company, the Selling Securityholder and public officials.
References to the Registration Statement, the Prospectus and any
Integrated Prospectus in this paragraph (c) shall include any amendment or
supplement thereto at the date of such opinion.
(d) The Representatives shall have received an opinion, dated the Firm
Closing Date, of King & Spalding, counsel for the Underwriters, with respect to
the issuance and sale of the Firm Securities, the Registration Statement, the
Prospectus, and Integrated Prospectus and such other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(e) The Representatives shall have received from KPMG LLP a letter or
letters dated, respectively, the date hereof and the Firm Closing Date, in form
and substance satisfactory to the Representatives, to the effect that:
(i) they are independent accountants with respect to the Company
and its consolidated subsidiaries within the meaning of the Act and
the applicable rules and regulations thereunder;
(ii) in their opinion, the audited consolidated and combined
financial statements and schedules of the Company included in the
Registration Statement and the Prospectus and any Integrated Prospectus
comply in form in all material respects with the applicable accounting
requirements of the Act and the related published rules and
regulations;
(iii) on the basis of (A) a reading of the interim consolidated
and combined financial data for the period from the date of the latest
balance sheet included in the Registration Statement and the Prospectus
to the date of the latest available interim consolidated financial
data, (B) a reading of the minute books of the stockholders, the board
of directors and any committees thereof of the Company and its
consolidated subsidiaries, from January 30, 1999 through a date not
more than five days prior to the date of such letter, and (C) inquiries
of certain officials of the Company and its consolidated subsidiaries
who have responsibility for financial and accounting matters, nothing
came to their attention that caused them to believe that:
27
(Y) at the date of the latest available interim consolidated
financial data and at a specific date not more than five business
days prior to the date of such letter, there was any change in
long-term or short-term debt of the Company and its consolidated
subsidiaries or any decreases in net current assets (working
capital) or stockholders' equity of the Company and its
consolidated subsidiaries, in each case compared with amounts
shown on the January 30, 1999 audited consolidated and combined
balance sheet included in the Registration Statement and the
Prospectus, or for the period from January 30, 1999 to such
specified date there were any decreases, as compared with the
prior comparable period, in net sales or income before income
taxes or total or per share amounts of net income of the Company
and its consolidated subsidiaries, except in all instances for
changes, decreases or increases set forth in such letter; and
(iv) they have carried out certain specified procedures (as
requested by the Representatives), not constituting an audit, with
respect to certain amounts, percentages and financial information that
are derived from the general accounting records of the Company and its
consolidated subsidiaries and are included in the Registration
Statement, the Prospectus and any Integrated Prospectus and have
compared such amounts, percentages and financial information with such
records of the Company and its consolidated subsidiaries and with
information derived from such records and have found them to be in
agreement, excluding any questions of legal interpretation.
In the event that the letters referred to above set forth any
such changes, decreases or increases, it shall be a further condition
to the obligations of the Underwriters that (A) such letters shall be
accompanied by a written explanation from the Company as to the
significance thereof, unless the Representatives deem such explanation
unnecessary, and (B) such changes, decreases or increases do not, in
the sole judgment of the Representatives, make it impractical or
inadvisable to proceed with the purchase and delivery of the Securities
as contemplated by the Registration Statement, as amended as of the
date hereof.
References to the Registration Statement, and the Prospectus
and any Integrated Prospectus in this paragraph (f) with respect to
either letter referred to above shall include any amendment or
supplement thereto at the date of such letter.
(f) The Representatives shall have received a certificate, dated the
Firm Closing Date, of the principal executive officer and the principal
financial or accounting officer of the Company to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct as if made on and as of the Firm Closing
Date; the Registration Statement, as amended as of the Firm Closing
Date, does not include any untrue statement of a material
28
fact or omit to state any material fact necessary to make the
statements therein not misleading, and the Prospectus and any
Integrated Prospectus, as amended or supplemented as of the Firm
Closing Date, does not include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and the Company has performed all covenants
and agreements and satisfied all conditions on its part to be performed
or satisfied at or prior to the Firm Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and
no proceedings for that purpose have been instituted or, to the best
of such officer's knowledge, are contemplated or threatened by the
Commission; and
(iii) subsequent to the respective dates as of which information
is given in the Registration Statement, the Prospectus and any
Integrated Prospectus, (A) neither the Company nor any of its
subsidiaries has sustained any material loss or interference with its
business or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding, and there has not
been any material adverse change, or any development involving a
prospective material adverse change, in the condition (financial or
otherwise), management, business prospects, net worth or results of
operations of the Company or its subsidiaries; (B) neither the
Company nor any of its subsidiaries has incurred any material
liability or obligation, direct or contingent, or entered into any
material transaction not in the ordinary course of business;
(C) neither the Company nor any of its subsidiaries has purchased any
of its outstanding capital stock, or declared, paid or otherwise made
any dividend or distribution of any kind on its capital stock; and
(D) there has not been any material change in the capital stock,
short-term debt or long-term debt of the Company and its consolidated
subsidiaries, except in each case as described in or contemplated by
the Prospectus and any Integrated Prospectus (exclusive of any
amendment or supplement thereto).
(g) The Representatives shall have received from the Selling
Securityholder, the Shareholders listed on Annex A hereto (collectively, the
"XXX SHAREHOLDERS") and each executive officer and director of the Company an
agreement to the effect that such person or entity will not, directly or
indirectly, without the prior written consent of Prudential Securities
Incorporated, on behalf of the Underwriters, offer, sell, offer to sell,
contract to sell, pledge, grant any option to purchase or otherwise sell or
dispose (or announce any offer, sale, offer of sale, contract of sale, pledge,
granted any option to purchase or other sale or disposition) of any shares of
Common Stock or any securities convertible into, or exchangeable or exercisable
for, shares of Common Stock or other capital stock of the Company, or any right
to purchase or acquire Common Stock or other capital stock of the Company for a
period of 120 days after the date of this Agreement, except (A) pursuant to this
Agreement and (B) for issuances of options pursuant to stock option plans and
employment agreements in existence on the date hereof.
29
(h) On or before the Firm Closing Date, the Representatives and
counsel for the Underwriters shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Company.
(i) Prior to the commencement of the offering of the Securities, the
Securities to be issued and sold by the Company shall have been included for
quotation on the Nasdaq National Market.
(j) The Underwriters shall have received a certificate from the
Selling Securityholder, signed by the Selling Securityholder, dated the Firm
Closing Date, to the effect that:
(i) the representations and warranties of the Selling
Securityholder in this Agreement are true and correct as if made on
and as of the Firm Closing Date;
(ii) with respect to statements or omissions in (A) the
Registration Statement, as amended as of the Firm Closing Date, made
in reliance upon and in conformity with written information furnished
to the Company by the Selling Securityholder specifically for use
therein, the Registration Statement does not include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading, and (B) the
Prospectus and any Integrated Prospectus, each as of the Firm Closing
Date, made in reliance upon and in conformity with written information
furnished to the Company by the Selling Securityholder specifically
for use therein does not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statement therein, in the light of the circumstances under which
they were made, not misleading; and
(iii) the Selling Securityholder has performed all covenants and
agreements on its part to be performed or satisfied at or prior to the
Firm Closing Date.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and
pay for any Option Securities shall be subject, in their discretion, to each of
the foregoing conditions to purchase the Firm Securities, except that all
references to the Firm Securities and the Firm Closing Date shall be deemed to
refer to such Option Securities and the related Option Closing Date,
respectively.
30
8. INDEMNIFICATION AND CONTRIBUTION.
(a) Except as provided in Section 8(e), the Company, the Xxx
Shareholders and the Selling Securityholder, jointly and severally, agree to
indemnify and hold harmless (except, in respect of the Selling Securityholder
and the Xxx Shareholders, such agreement shall not apply as to clause (iv)
below) each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Securities and
Exchange Act of 1934, as amended (the "Exchange Act"), against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter or
such controlling person may become subject under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the
Company or the Selling Securityholder in Section 2 of this Agreement,
(ii) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus and any
Integrated Prospectus, or any amendment or supplement thereto or (B)
any application or other document, or any amendment or supplement
thereto, executed by the Company or based upon written information
furnished by or on behalf of the Company filed in any jurisdiction in
order to qualify the Securities under the securities or blue sky laws
thereof or filed with the Commission or any securities association or
securities exchange (each an "Application"),
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus and any Integrated Prospectus, or any
amendment or supplement thereto, or any Application 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, or
(iv) any untrue statement or alleged untrue statement of any
material fact contained in any audio or visual materials provided by
the Company or in written information furnished by or on behalf of the
Company, including without limitation, slides, videos, films and tape
recordings used in connection with the marketing of the Securities,
including without limitation, statements communicated to securities
analysts employed by the Underwriters,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that the Company and the Selling
Securityholder will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
such Registration Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus, any Integrated Prospectus
31
or any amendment or supplement thereto or any Application in reliance upon and
in conformity with written information furnished to the Company, or the Selling
Securityholder by such Underwriter through the Representatives specifically for
use therein. This indemnity agreement will be in addition to any liability which
the Company or the Selling Securityholder may otherwise have. The Company and
the Selling Securityholder will not, without the prior written consent of the
Underwriter or Underwriters purchasing, in the aggregate, more than fifty
percent (50%) of the Securities, settle or compromise or consent to the entry of
any judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not any
such Underwriter or any person who controls any such Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act is a party to
such claim, action, suit or proceeding), unless such settlement, compromise or
consent includes an unconditional release of all of the Underwriters and such
controlling persons from all liability arising out of such claim, action, suit
or proceeding.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, the Selling Securityholder, the Xxx
Shareholders and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act against any
losses, claims, damages or liabilities to which the Company or any such
director or officer of the Company, the Selling Securityholder, the Xxx
Shareholders or any such controlling person of the Company or the Selling
Securityholder may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon (i) any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement or any amendment
thereto, any Preliminary Prospectus, the Prospectus, any Integrated Prospectus
or any amendment or supplement thereto, or any Application or (ii) the
omission or the alleged omission to state therein a material fact required to
be stated in the Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus, any Integrated Prospectus or any
amendment or supplement thereto, or any Application necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives specifically for use therein; and, subject to the limitation
set forth immediately preceding this clause, will reimburse, as incurred, any
legal or other expenses reasonably incurred by the Company or any such
director, officer or controlling person or the Selling Securityholder or the
Xxx Shareholders in connection with investigating or defending any such loss,
claim, damage, liability or any action in respect thereof. This indemnity
agreement will be in addition to any liability which such Underwriter may
otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under this Section 8, except to the extent that the indemnifying party has been
materially prejudiced by
32
such omission. In case any such action is brought against any indemnified party,
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; PROVIDED, HOWEVER, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 8 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Representatives in the case of
paragraph (a) of this Section 8, representing the indemnified parties under such
paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel reasonably satisfactory to
the indemnified party or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party. After such notice from the indemnifying party to such
indemnified party, the indemnifying party will not be liable for the costs and
expenses of any settlement of such action effected by such indemnified party
without the consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 8 is unavailable or insufficient, for
any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company, the Selling
Securityholder and the Xxx Shareholders on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the total proceeds
from the offering (before deducting expenses) received by the Company, the
Selling
33
Securityholder and the Xxx Shareholders bear to the total underwriting discounts
and commissions received by the Underwriters. The relative fault of the parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company, the
Selling Securityholder or the Underwriters, the parties' relative intents,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, and any other equitable considerations appropriate in the
circumstances. The Company, the Selling Securityholder and the Underwriters
agree that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to above
in this paragraph (d). Notwithstanding any other provision of this paragraph
(d), no Underwriter shall be obligated to make contributions hereunder that in
the aggregate exceed the total public offering price of the Securities purchased
by such Underwriter under this Agreement, less the aggregate amount of any
damages that such Underwriter has otherwise been required to pay in respect of
the same or any substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among Underwriters shall be governed by the provisions
of the Prudential Securities Incorporated Master Agreement Among Underwriters.
For purposes of this paragraph (d), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall
have the same rights to contribution as the Company.
(e) Notwithstanding anything contained herein to the contrary, the
liability of the Xxx Shareholders and the Selling Securityholder under the
indemnity and contribution agreements contained in this Section 8 shall be
limited to an amount equal to the public offering price of the Securities to be
sold by the Selling Securityholder to the Underwriters less the amount of the
underwriting discount and commission paid thereon to the Underwriters by the
Selling Securityholder.
9. DEFAULT OF UNDERWRITERS. If one or more Underwriters default in
their obligations to purchase Firm Securities or Option Securities hereunder and
the aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or Option
34
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase. If one or more Underwriters so default with respect to an aggregate
number of Securities that is more than ten percent of the aggregate number of
Firm Securities or Option Securities, as the case may be, to be purchased by all
of the Underwriters at such time hereunder, and if arrangements satisfactory to
the Representatives are not made within 36 hours after such default for the
purchase by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives) of the Securities with respect to
which such default occurs, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company other than as provided
in Section 11 hereof. Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company or the Selling
Securityholder for damages caused by its default. In the event of any default by
one or more Underwriters as described in this Section 9, the Representatives
shall have the right to postpone the Firm Closing Date or the Option Closing
Date, as the case may be, established as provided in Section 3 hereof for not
more than seven business days in order that any necessary changes may be made in
the arrangements or documents for the purchase and delivery of the Firm
Securities or Option Securities, as the case may be. As used in this Agreement,
the term "Underwriter" includes any person substituted for an Underwriter under
this Section 9. Nothing herein shall relieve any defaulting Underwriter from
liability for its default.
10. DEFAULT BY SELLING SECURITYHOLDER . If on either the Firm Closing
Date or the Option Closing Date, the Selling Securityholder fails to sell the
Firm Securities or the Option Securities, whichever is applicable, that the
Selling Securityholder has agreed to sell on such date as set forth herein, the
Company agrees that it will sell that number of shares of Common Stock to the
Underwriters which represents either the Selling Securityholder's Firm
Securities or Option Securities, whichever is applicable, that the Selling
Securityholder has failed to so sell or such lesser number as may be requested
by you.
11. SURVIVAL. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company and its officers, the
Selling Securityholder and the several Underwriters set forth in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement shall
remain in full force and effect, regardless of (i) any investigation made by or
on behalf of the Company, any of its officers or directors, the Selling
Securityholder, any Underwriter or any controlling person referred to in Section
8 hereof and (ii) delivery of and payment for the Securities. The respective
agreements, covenants, indemnities and other statements set forth in Sections 6
and 8 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
12. TERMINATION.
(a) This Agreement may be terminated with respect to the Firm
Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Company or the Selling Securityholder given
prior to the Firm Closing Date or the related Option Closing Date,
respectively, in the event that the Company or the Selling Securityholder
shall have failed, refused or been unable to perform all obligations and
satisfy all conditions on their part to be
35
performed or satisfied hereunder at or prior thereto or, if at or prior to the
Firm Closing Date or such Option Closing Date, respectively,
(i) the Company or any of its subsidiaries shall have, in the sole
judgment of the Representatives, sustained any material loss or
interference with its business or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or governmental
proceeding or there shall have been any material adverse change, or any
development involving a prospective material adverse change (including
without limitation a change in management or control of the Company),
in the condition (financial or otherwise), management, business
prospects, net worth or results of operations of the Company and its
subsidiaries, except in each case as described in or contemplated by
the Prospectus and any Integrated Prospectus (exclusive of any
subsequent amendment or supplement thereto);
(ii) trading in the Common Stock shall have been suspended by the
Commission or the Nasdaq National Market;
(iii) trading in securities generally on the Nasdaq National
Market shall have been suspended or minimum or maximum prices shall
have been established on any such exchange or market system;
(iv) a banking moratorium shall have been declared by New York or
United States authorities; or
(v) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or (C) any other calamity or crisis or
material adverse change in general economic, political or financial
conditions having an effect on the United States financial markets
that, in the sole judgment of the Representatives, makes it impractical
or inadvisable to proceed with the public offering or the delivery of
the Securities as contemplated by the Registration Statement, as
amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 12 shall be
without liability of any party to any other party except as provided in Section
11 hereof.
13. INFORMATION SUPPLIED BY UNDERWRITERS. The statements set forth in
the last paragraph on the front cover page and in the first, third and ninth
paragraphs under the heading "Underwriting" in any Preliminary Prospectus, the
Prospectus and any Integrated Prospectus (to the extent such statements relate
to the Underwriters) constitute the only information furnished by any
Underwriter through the Representatives to the Company for the purposes of
Sections 2(a)(ii) and 8 hereof. The Underwriters confirm that such statements
(to such extent) are correct.
14. NOTICES. All communications hereunder shall be in writing and, if
sent to any of the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in
36
writing to Prudential Securities Incorporated, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Equity Transactions Group; if sent to the Company, shall
be delivered or sent by mail, telex or facsimile transmission and confirmed in
writing to the Company at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx
00000, Attention: Chief Executive Officer and President; if sent to the Selling
Securityholder, shall be delivered or sent by mail, telex or facsimile
transmission and confirmed in writing to the Selling Securityholder at 000 Xxxxx
Xxxxxxx Xxxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: President.
15. SUCCESSORS. This Agreement shall inure to the benefit of and shall
be binding upon the several Underwriters, the Company, the Selling
Securityholder and their respective successors and legal representatives, and
nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim
under or in respect of this Agreement, or any provisions herein contained, this
Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of such persons and for the benefit of
no other person except that (i) the indemnities of the Company and the Selling
Securityholder contained in Section 8 of this Agreement shall also be for the
benefit of any person or persons who control any Underwriter within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act and (ii) the
indemnities of the Underwriters contained in Section 8 of this Agreement shall
also be for the benefit of the directors of the Company and the Selling
Securityholder, the officers of the Company who have signed the Registration
Statement and any person or persons who control the Company or the Selling
Securityholder within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act. No purchaser of Securities from any Underwriter shall be deemed a
successor because of such purchase.
16. APPLICABLE LAW. The validity and interpretation of this Agreement,
and the terms and conditions set forth herein, shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any provisions relating to conflicts of laws.
17. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. All judicial
proceedings arising out of or relating to this Agreement may be brought in any
state or federal court of competent jurisdiction in the State of New York, and
by execution and delivery of this Agreement, each Selling Securityholder accepts
for itself and in connection with its properties, generally and unconditionally,
the nonexclusive jurisdiction of the aforesaid courts and waives any defense of
FORUM NON CONVENIENS and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Agreement. The Selling Securityholder designates
and appoints Xxxxx X. Xxx, and such other persons as may hereafter be selected
by the Selling Securityholder irrevocably agreeing in writing to so serve, as
its agent to receive on its behalf service of all process in any such
proceedings in any such court, such service being hereby acknowledged by the
Selling Securityholder to be effective and binding service in every respect. A
copy of any such process so served shall be mailed by registered mail to the
Selling Securityholder at the address provided in Section 14 hereof; PROVIDED,
HOWEVER, that, unless otherwise provided by applicable law, any failure to mail
such copy shall not affect the validity of service of such process. If any agent
appointed by the Selling Securityholder refuses to accept service, the Selling
Securityholder hereby agrees that service of process sufficient for personal
jurisdiction in
37
any action against the Selling Securityholder in the State of New York may be
made by registered or certified mail, return receipt requested, to the Selling
Securityholder at its address provided in Section 14 hereof, and the Selling
Securityholder hereby acknowledges that such service shall be effective and
binding in every respect. Nothing herein shall affect the right to serve process
in any other manner permitted by law or shall limit the right of any Underwriter
to bring proceedings against the Selling Securityholder in the courts of any
other jurisdiction.
18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
38
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding the Company and each
of the several Underwriters.
Very truly yours,
ELECTRONICS BOUTIQUE HOLDINGS CORP.
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President, Chief Executive Officer
EB NEVADA, INC.
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Attorney-in-fact acting on behalf
of the Selling Securityholder
XXX SHAREHOLDERS
By:
-------------------------------------------
Name: Xxxxx X. Xxx
By:
-------------------------------------------
Name: Xxxxx X. Xxx
Trust of Xxxxx X. Xxx
Dated December 31, 1987,
By:
-------------------------------------------
Name: Xxxxx X. Xxx
Title: Trustee
By:
-------------------------------------------
Name: Xxxx X. Xxx
Title: Trustee
By:
-------------------------------------------
Name: Xxxx X.X. Xxxxxx
Title: Trustee
Trust of Xxxxx X. Xxx
Dated December 31, 1987
By:
-------------------------------------------
Name: Xxxxx X. Xxx
Title: Trustee
By:
-------------------------------------------
Name: Xxxxx X. Xxx
Title: Trustee
By:
-------------------------------------------
Name: Xxxx X.X. Xxxxxx
Title: Trustee
Trust of Xxxx X. Xxx
Dated December 31, 1987
By:
-------------------------------------------
Name: Xxxxx X. Xxx
Title: Trustee
By
-------------------------------------------
Name: Xxxx X. Xxx
Title: Trustee
By
-------------------------------------------
Name: Xxxx X.X. Xxxxxx
Title: Trustee
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
PRUDENTIAL SECURITIES INCORPORATED
BANC OF AMERICA SECURITIES LLC
XXXXXX XXXXXX XXXXXXXX & CO., INC.
XXXXXXXXXXXXXXXXXXXX.XXX
By: PRUDENTIAL SECURITIES INCORPORATED
By:
-------------------------------
Name: Xxxx-Xxxxxx Canfin
Title: Managing Director
For itself and on behalf of the Underwriters.
SCHEDULE I
UNDERWRITERS
Number of Firm Number of Option
Securities Securities
Underwriter to be purchased to be purchased
----------- --------------- ---------------
Prudential Securities Incorporated _________ __________
Banc of America Securities LLC _________ __________
Xxxxxx Xxxxxx Xxxxxxxx & Co. Inc.. _________ __________
XxxxxxxxxxXxxxxxxxxx.xxx _________ __________