EXHIBIT 1
3,365,685 Shares of Common Stock
XXXXXX INDUSTRIES, INC.
UNDERWRITING AGREEMENT
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__________ ___, 1996
BEAR, XXXXXXX & CO. INC.
X.X. XXXXXXXX & CO.
XXXXXXXXXX SECURITIES
THE XXXXXXXX-XXXXXXXX COMPANY, INC.
As Representatives of the
several Underwriters named in
Schedule II attached hereto
c/o Bear, Xxxxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxx Industries, Inc., a Tennessee corporation (the "Company"),
proposes to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") for whom you are acting as the representatives (the
"Representatives") 1,000,000 shares of common stock, par value $.01 per share,
of the Company (the "Common Stock"), and the selling shareholders listed on
Schedule II attached hereto (the "Selling Shareholders") propose to sell to the
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Underwriters an additional 2,365,685 shares of Common Stock, which aggregate of
3,365,685 shares of Common Stock is herein referred to as the "Firm Shares."
In addition, for the sole purpose of over-allotments in connection with the sale
of the Firm Shares, the Company proposes to issue and sell
to the Underwriters, at the option of the Underwriters, up to an additional
504,852 shares of Common Stock (the "Additional Shares"). The Underwriters
agree that the Additional Shares may be sold by the Company and/or the Selling
Shareholders named for such purpose in the Registration Statement under the
caption "Principal and Selling Shareholders." The Firm Shares and any
Additional Shares purchased by the Underwriters are herein referred to as the
"Shares." The Shares are more fully described in the Registration Statement
referred to below.
1. Representations and Warranties of the Company and the Selling
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Shareholders. A. The Company represents and warrants to, and agrees with, the
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several Underwriters (and, with respect to Section 1A.(b), the Selling
Shareholders warrant to, and agree with, the several Underwriters) that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, and may have filed an
amendment or amendments thereto, on Form S-3 (No. 333-_____), for the
registration of the Shares under the Securities Act of 1933, as amended (the
"Act"). The Company will not, without your prior consent, file any other
amendment thereto or make any change in the form of final prospectus included
therein prior to the time it is first filed pursuant to Rule 424(b) of the Rules
and Regulations of the Commission under the Act (the "Regulations"). As used in
this Agreement, the term "Registration Statement" means such registration
statement, including the prospectus, financial statements, exhibits and all
other documents filed as a part thereof, when it shall become effective; the
term "preliminary prospectus" as used herein means a preliminary prospectus as
described in Rule 430 of the Regulations; the term "Prospectus" means: (i) if
the Company relies on Rule 434 under the Act, the Term Sheet relating to the
Shares 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; (ii) 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 (iii) 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; and the term "Term Sheet"
means any term sheet that satisfies the requirements of Rule 434 under the Act.
Any reference to the "date" of a Prospectus that includes a Term Sheet shall
mean the date of such Term Sheet.
(b) The Company has complied in all material respects with the
requirements of the Act and the Regulations, and when the Registration Statement
shall become effective, when any amendment to the Registration Statement becomes
effective, when the Prospectus or any Term Sheet that is a part thereof or any
amendment or supplement to the Prospectus is first filed with the Commission
pursuant to Rule 424(b) of the Regulations (or, if the Prospectus or
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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 at
the Closing Date and the Additional Closing Date, if any (as hereinafter
respectively defined), the Registration Statement and the Prospectus and any
amendments thereof and supplements thereto will comply in all material respects
with the applicable provisions of the Act and the Regulations and will not
contain an untrue statement of a material fact and will not omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading. The Commission has not issued any order
preventing or suspending the use of any preliminary prospectus, and each
preliminary prospectus, at the time of filing thereof with the Commission
(whether filed as part of the registration statement for the registration of the
Shares or any amendment thereto or pursuant to Rule 424(a) of the Regulations)
and when any amendment thereof or supplement thereto was first filed with the
Commission, such preliminary prospectus and any amendments thereof and
supplements thereto complied in all material respects with the applicable
provisions of the Act and the Regulations and did not contain an untrue
statement of a material fact and did not omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. No representation and warranty is made in this subsection (b),
however, with respect to any information contained in or omitted from the
Registration Statement or the Prospectus or any related preliminary prospectus
or any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Underwriter through you as herein stated for use in connection with the
preparation thereof.
(c) The consolidated financial statements and the related notes of
the Company included in the Registration Statement and the Prospectus present
fairly the financial position, results of operations and cash flows of the
Company and its subsidiaries, at the dates and for the periods to which they
relate, and have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods indicated. The
other financial statements and schedules included in or as schedules to the
Registration Statement conform to the requirements of the Act and the
Regulations and present fairly the information presented therein for the periods
shown. The financial and statistical data set forth in the Prospectus under the
captions "Prospectus Summary," "Use of Proceeds, "Capitalization," "Selected
Consolidated Financial Information," "Management's Discussion and Analysis of
Financial Condition and Results of Operations," "Business," "Management" and
"Principal and Selling Shareholders" fairly presents the information set forth
therein on the basis stated in the Prospectus. Xxxxxx Xxxxxxxx, LLP, whose
report is filed with the Commission as
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a part of the Registration Statement, are independent public accountants with
regard to the Company as required by the Act and the Regulations.
(d) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as set forth in
the Registration Statement and the Prospectus, there has not been any material
adverse change in the business, prospects, properties, operations, condition
(financial or other) or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising from transactions in the
ordinary course of business, and since the date of the latest balance sheet
included in the Registration Statement and the Prospectus, neither the Company
nor any of its subsidiaries has incurred or undertaken any liabilities or
obligations, direct or contingent, which are material to the Company and its
subsidiaries taken as a whole, except for liabilities or obligations which were
incurred or undertaken in the ordinary course of business or are reflected in
the Registration Statement and the Prospectus.
(e) This Agreement has been duly and validly authorized, executed
and delivered by the Company and is a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except to
the extent that rights to indemnity hereunder may be limited by federal or state
securities laws or the public policy underlying such laws.
(f) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby will not (i) conflict
with or result in a breach of any of the terms and provisions of, or constitute
a default (or an event which with notice or lapse of time, or both, would
constitute a default) or require consent under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries, pursuant to the terms of any material
agreement, instrument, franchise, license or permit to which the Company or any
of its subsidiaries is a party or by which any of such corporations or their
respective properties or assets may be bound or (ii) violate or conflict with
any provision of the charter or bylaws of the Company or any of its subsidiaries
or any judgment, decree, order, statute, rule or regulation of any court or any
public, governmental or regulatory agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their respective properties or
assets. No consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any public,
governmental or regulatory agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their respective properties or assets is
required for the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby, including the issuance,
sale and delivery of the Shares to be issued, sold and delivered by the Company
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hereunder, except the registration under the Act of the Shares and such
consents, approvals, authorizations, orders, registrations, filings,
qualifications, licenses and permits as may be required by the National
Association of Securities Dealers, Inc. (the "NASD"), the New York Stock
Exchange (the "NYSE") or under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the Underwriters.
(g) The Company had, at July 31, 1996, an authorized and
outstanding capitalization as set forth in the Registration Statement and the
Prospectus. All of the outstanding shares of Common Stock including the Shares
to be sold by the Selling Shareholders hereunder are duly and validly authorized
and issued, are fully paid and nonassessable and were not issued in violation of
or subject to any preemptive rights. The Shares to be sold by the Company
hereunder have been duly and validly authorized and, when delivered and sold in
accordance with this Agreement, will be duly and validly issued and outstanding,
fully paid and nonassessable, and will not have been issued in violation of or
subject to any preemptive rights. Except for certain incidental registration
rights granted in connection with the acquisitions of Vulcan International, Inc.
and C.A.S. Properties, LLC, neither the filing of the Registration Statement nor
the offer or sale of the Shares as contemplated by this Agreement gives rise to
any rights for or relating to the registration of any shares of Common Stock or
other securities of the Company. The Underwriters will receive good and
marketable title to the Shares to be issued and delivered hereunder by the
Company, free and clear of all liens, encumbrances, claims, security interests,
restrictions, shareholders' agreements and voting trusts whatsoever. The Common
Stock, the Firm Shares and the Additional Shares conform to the descriptions
thereof contained in the Registration Statement and the Prospectus.
(h) Each of the Company and its subsidiaries has been duly
organized and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation. Each of the Company and its
subsidiaries is duly qualified and in good standing as a foreign corporation in
each jurisdiction in which the character or location of its properties (owned,
leased or licensed) or the nature or conduct of its business makes such
qualification necessary, except for those failures to be so qualified or in good
standing which will not in the aggregate have a material adverse effect on the
Company and its subsidiaries taken as a whole. Each of the Company and its
subsidiaries has all requisite power and authority, and all necessary consents,
approvals, authorizations, orders, registrations, qualifications, licenses and
permits of and from all public, regulatory or governmental agencies and bodies,
in each case as material to the conduct of the respective businesses in which
they are engaged, to own, lease and operate its
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properties and conduct its business as now being conducted and as described in
the Registration Statement and the Prospectus.
(i) The issued and outstanding capital stock of each subsidiary of
the Company has been duly and validly issued and is fully paid and nonassessable
and free of preemptive rights and, except as disclosed in the Company's
consolidated financial statements included in the Prospectus, is owned directly
or indirectly by the Company, free and clear of any lien, encumbrance, claim,
security interest, restriction on transfer, shareholders' agreement, voting
trust or other defect of title whatsoever. Neither the Company nor any of its
subsidiaries is a partner or joint venturer in any partnership or joint venture.
(j) There is not pending or, to the knowledge of the Company,
threatened any action, suit, proceeding or investigation to which the Company,
any of its subsidiaries or any of their officers or directors is a party, or to
which the properties or business of the Company or any of its subsidiaries is
subject, before or brought by any court or any public, regulatory or
governmental agency or body which, if resolved against the Company or such
subsidiary, individually or, to the extent involving related claims or issues,
in the aggregate, could have a material adverse effect on the condition
(financial or otherwise), prospects, net worth or results of operations of the
Company and its subsidiaries taken as a whole.
(k) There are no contracts or other documents required by the Act
or the Regulations to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement which have
not been described or filed as required.
(l) The Company and each of its subsidiaries have good and
marketable title to all real and material personal property owned by them, free
and clear of all liens, charges, encumbrances or defects except (i) those
described in the Notes to the Company's consolidated financial statements
contained in the Prospectus and (ii) liens that are immaterial in character,
amount and extent and which do not detract from the value or interfere with the
present or proposed use of the properties. The real and personal property and
buildings referred to in the Prospectus which are leased from others by the
Company are held under valid, subsisting and enforceable leases. The Company or
its subsidiaries owns or leases all such properties as are necessary to its
operations as now conducted.
(m) The Company's system of internal accounting controls taken as
a whole is sufficient to meet the broad objectives of internal accounting
control insofar as those objectives pertain to the prevention or detection of
errors or irregularities in amounts that would be material in relation to the
Company's
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financial statements; and neither the Company nor any of its subsidiaries nor
any employee or agent of the Company or any subsidiary has made any payment of
funds of the Company or any subsidiary or received or retained any funds in
violation of any law, rule or regulation.
(n) The Company and its subsidiaries have filed all federal, state
and local income and franchise tax returns required to be filed through the date
hereof and have paid all taxes shown as due thereon, except where the failure to
file such returns and pay such taxes would not have an adverse effect on the
financial condition or results of operations of the Company and its subsidiaries
taken as a whole; and there is no tax deficiency that has been, nor does the
Company or any subsidiary have knowledge of any tax deficiency that is likely to
be, asserted against the Company or its subsidiaries, which if determined
adversely could materially and adversely affect the condition (financial or
otherwise), prospects, net worth or results of operations of the Company and its
subsidiaries taken as a whole.
(o) The Company and its subsidiaries operate their business in
conformity in all material respects with all applicable statutes, common laws,
ordinances, decrees, orders, rules and regulations of governmental bodies. The
Company and its subsidiaries are not aware of any existing or imminent matter
that may adversely affect their operations or business prospects other than as
specifically disclosed in the Prospectus.
(p) Neither the Company nor any of its subsidiaries has failed to
file with the applicable regulatory authorities any statement, report,
information or form required by any applicable law, regulation or order where
the failure to file the same would have a material adverse effect on the Company
and its subsidiaries taken as a whole; all such filings or submissions were in
material compliance with applicable laws when filed and no material deficiencies
have been asserted by any regulatory commission, agency or authority with
respect to such filings or submissions. Neither the Company nor any of its
subsidiaries has failed to maintain in full force and effect any material
license or permit necessary or proper for the conduct of its business, or
received any notification that any revocation or limitation thereof is
threatened or pending, and, except as disclosed in the Prospectus, there is not,
to the Company's knowledge, pending any change under any law, regulation,
license or permit which could materially and adversely affect its business,
operations, property or business prospects. Neither the Company nor any of its
subsidiaries have received any notice of violation of or been threatened with a
charge of violating, and to the Company's knowledge are not under investigation
with respect to a possible violation of, any provision of any law, regulation or
order.
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(q) No labor dispute exists with the Company's employees or with
employees of its subsidiaries or is imminent which could materially and
adversely affect the Company or any of its subsidiaries. The Company is not
aware of any existing or imminent labor disturbance by its employees or by any
employees of its subsidiaries which could be expected to materially and
adversely affect the condition (financial or otherwise), prospects, net worth or
results of operations of the Company and its subsidiaries taken as a whole.
(r) Except as disclosed in the Prospectus, the Company and its
subsidiaries own or possess, or can acquire on reasonable terms, the patents,
licenses, copyrights, trademarks, service marks and trade names presently
employed by them in connection with the businesses now operated by them, and
neither the Company nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to any
of the foregoing which, alone or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in any material adverse
change in the condition (financial or otherwise), prospects, net worth or
results of operations of the Company and its subsidiaries taken as a whole.
(s) Neither the Company nor any of its subsidiaries, nor any of
the directors, officers, employees or agents of the Company and its subsidiaries
have taken and will not take, directly or indirectly, any action designed to
cause or result in, or which has constituted or which might be expected to
constitute, stabilization or manipulation of the price of the Common Stock.
(t) The Company is not, and after giving effect to the issuance of
the Shares will not be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and the Company is not, nor will be
subject to regulation under said act.
(u) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter 92-198,
An Act Relating to Disclosure of Doing Business with Cuba, and the Company
further agrees that if it commences engaging in business with the government of
Cuba or with any person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the Commission or
with the Florida Department of Banking and Finance (the "Department"), whichever
date is later, or if the information reported in the Prospectus, if any,
concerning the Company's business with Cuba or with any person or affiliate
located in Cuba changes in any material way, the Company will provide the
Department notice of such business or change, as appropriate, in a form
acceptable to the Department.
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(v) The Company and each of its subsidiaries is insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which they
are engaged; neither the Company nor any subsidiary has been refused any
insurance coverage sought or applied for; and neither the Company nor any
subsidiary has actual knowledge 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 materially and adversely change or affect the condition,
financial or otherwise, of the Company and its subsidiaries taken as a whole,
except as described in or contemplated by the Prospectus.
(w) No subsidiary of the Company is currently prohibited, directly
or indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company or from transferring
any of such subsidiary's property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated by the
Prospectus.
(x) Neither the Company nor any of its subsidiaries is in
violation of any federal or state law or regulation relating to occupational
safety and health or to the storage, handling or transportation of hazardous or
toxic material and the Company and each subsidiary has received all permits,
licenses or other approvals required of them under applicable federal and state
occupational safety and health and environmental laws and regulations to conduct
their respective businesses, and the Company and each subsidiary is in
compliance with all the terms and conditions of any such permit, license or
approval, except 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, result in a material adverse change in or affecting
the condition, fin financial or otherwise, of the Company and its Subsidiaries
taken as a whole, except as described in or contemplated by the Prospectus.
B. Each of the Selling Shareholders severally, and not jointly,
represents and warrants to, and agrees with, the several Underwriters (except
with respect to paragraph (h) as to which only Xxxxxxx X. Xxxxxx represents and
warrants) that:
(a) The execution, delivery and performance of this Agreement by
such Selling Shareholder and the consummation of the transactions contemplated
hereby will not (i) conflict with or result in the breach of any of the terms
and provisions of, or constitute a default (or an event which with notice or
lapse of time, or both,
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would constitute a default) or require consent under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
such Selling Shareholder pursuant to the terms of any material agreement,
instrument, franchise, license or permit to which such Selling Shareholder is a
party or by which such Selling Shareholder or any of such Selling Shareholder's
properties or assets may be bound, or (ii) violate or conflict with any
judgment, decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over such Selling
Shareholder or such Selling Shareholder's properties or assets.
(b) Such Selling Shareholder has, and at the time of delivery of
the Shares to be sold by such Selling Shareholder will have, full legal right,
power, authority and capacity, and, except as required under the Act and state
securities and Blue Sky laws, all necessary consents, approvals, authorizations,
orders, registrations, filings, qualifications, licenses and permits of and from
all public, regulatory or governmental agencies and bodies, as are required for
the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby, including the sale, assignment,
transfer and delivery of the Shares to be sold, assigned, transferred and
delivered by such Selling Shareholder hereunder.
(c) This Agreement has been duly and validly authorized, executed
and delivered by such Selling Shareholder and is a valid and binding obligation
of such Selling Shareholder, enforceable against such Selling Shareholder in
accordance with its terms, except to the extent that rights to indemnity
hereunder may be limited by applicable federal or state securities laws or the
public policy underlying such laws.
(d) Such Selling Shareholder has good, valid and marketable title
to the Shares to be sold by such Selling Shareholder pursuant to this Agreement,
free and clear of all liens, encumbrances, claims, security interests,
restrictions on transfer, shareholders' agreements, voting trusts and other
defects in title whatsoever, with full power to deliver such Shares hereunder,
and, upon the delivery of and payment for such Shares as herein contemplated,
each of the Underwriters will receive good, valid and marketable title to the
Shares purchased by it from such Selling Shareholder, free and clear of all
liens, encumbrances, claims, security interests, restrictions on transfer,
shareholders' agreements, voting trusts and other defects in title whatsoever.
(e) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action which has constituted or which was designed
to constitute or which might be reasonably expected to cause or result in
stabilization or
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manipulation of the price of the shares of Common Stock. Such Selling
Shareholder has not distributed and will not distribute any prospectus or other
offering material in connection with the offer and sale of the Shares other than
a preliminary prospectus, Prospectus or other materials permitted by the Act.
(f) At the time the Registration Statement becomes effective (i)
such statements in the Registration Statement and any amendments and supplements
thereto as are made in reliance upon and in conformity with written information
furnished to the Company by such Selling Shareholder specifically for use
therein will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (ii) such statements in the Prospectus as
are made in reliance upon and in conformity with written information furnished
to the Company by such Selling Shareholder specifically for use therein will not
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(g) No approval, consent, order, authorization, or filing by or
with any regulatory body, administrative or other governmental body is necessary
in connection with the execution and delivery of this Agreement by such Selling
Shareholder, and the consummation by them of the transactions herein
contemplated (other than as required by the Act, state securities laws or the
NASD).
(h) To the best knowledge of Xxxxxxx X. Xxxxxx, a Selling
Shareholder, the representations and warranties contained in section 1A.(a) and
(c)-(x) inclusive are true and correct.
2. Purchase, Sale and Delivery of the Shares. On the basis of the
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representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, (i) the Company agrees to
sell to the several Underwriters and the Underwriters, severally and not
jointly, agree to purchase from the Company, at $_____ per share, the number of
Firm Shares set forth opposite the respective names of the Underwriters in
Column (1) of Schedule I hereto and (ii) the Selling Shareholders agrees to
sell to the several Underwriters and the Underwriters, severally and not
jointly, agree to purchase from each of the Selling Shareholders, at $__________
per share the number of Firm Shares set forth opposite the respective names of
the Underwriters in Column (2) of Schedule I hereto. The number of Firm Shares
to be sold by the Selling Shareholders to each Underwriter shall be the number
which bears the same proportion to the total number of Firm Shares to be sold by
the Selling Shareholders as the number of Firm Shares set forth opposite the
name of such Underwriter in Column (2) of
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Schedule I bears to the total number of Firm Shares to be sold by the Selling
Shareholders, subject to such adjustments to eliminate any fractional shares as
you in your sole discretion shall make.
Delivery of certificates, and payment of the purchase price, for the
Firm Shares shall be made at the offices of Xxxxxxxxxx & Cody, LLP, 0000
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, or such other location as may be
mutually acceptable. Such delivery and payment shall be made at 10:00 A.M., New
York time, on the third full business day after this Agreement becomes
effective, or, at the election of the Representatives, on the fourth full
business day after this Agreement becomes effective, if it becomes effective
after 4:30 P.M. New York time (unless such time and date are postponed in
accordance with the provisions of Section 9 hereof), or at such other time not
later than the seventh full business day thereafter as shall be agreed upon by
you, the Selling Shareholders and the Company. The time and date of such
delivery and payment are herein called the "Closing Date". Delivery of the
certificates for the Firm Shares shall be made to you for the respective
accounts of the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price for the Firm Shares to the
order of the Company and each of the Selling Shareholders by certified or
official bank checks payable in New York Clearing House (next day) funds.
Certificates for the Firm Shares shall be registered in such name or
names and in such authorized denominations as you may request in writing at
least two full business days prior to the Closing Date. The Company and the
Selling Shareholders will permit you to examine and package such certificates
for delivery at least one full business day prior to the Closing Date.
In addition, the Company hereby grants to the several Underwriters
the option to purchase up to 504,852 Additional Shares at the same purchase
price per share to be paid by the several Underwriters to the Company and the
Selling Shareholders for the Firm Shares as set forth in this Section 2, for the
sole purpose of covering over-allotments in the sale of Firm Shares by the
several Underwriters. This option may be exercised at any time (but not more
than once) on or before the thirtieth day following the effective date of the
Registration Statement, by written notice by you to the Company. Such notice
shall set forth the aggregate number of Additional Shares as to which the option
is being exercised and the date and time, as reasonably determined by you, when
the Additional Shares are to be delivered (such date and time being herein
sometimes referred to as the "Additional Closing Date"); provided, however, that
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the Additional Closing Date shall not be earlier than the Closing Date or
earlier than the second full business day after the date on which the option
shall have been exercised nor later than the eighth full business day after the
date on which the option shall have been exercised (unless such time and date
are postponed in accordance with the provisions of Section 9 hereof).
Certificates for the Additional Shares shall be registered in such name or names
and in such authorized denominations as you may request in writing at least two
full business days prior to the Additional Closing Date. The Company will
permit you to examine and package such certificates for delivery at least one
full business day prior to the Additional Closing Date.
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The number of Additional Shares to be sold to each Underwriter shall
be the number which bears the same ratio to the aggregate number of Additional
Shares being purchased as the number of Firm Shares set forth opposite the name
of such Underwriter in Column (2) of Schedule I hereto (or such number increased
as set forth in Section 9 hereof) bears to 3,365,685, subject, however, to such
adjustments to eliminate any fractional shares as you in your sole discretion
shall make.
Payment for the Additional Shares shall be made by certified or
official bank check, in New York Clearing House (next day) funds, payable to the
order of the Company (and each of the Selling Shareholders, if any) at the
offices of Xxxxxxxxxx & Cody, LLP, 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
00000, or such other location as may be mutually acceptable, upon delivery of
the certificates for the Additional Shares to you for the respective accounts of
the Underwriters.
3. Offering. It is understood that after the Registration Statement
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becomes effective the several Underwriters propose to offer the Shares for sale
to the public as set forth in the Prospectus. Each of the Underwriters hereby
confirms that it is familiar with Rule 15c2-8 under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), relating to the distribution of
Prospectuses and confirms that it has complied and will comply therewith.
4. Covenants of the Company and the Selling Shareholders. A. The
-----------------------------------------------------
Company covenants and agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement and any amendment thereof to become effective
as promptly as possible and will notify you immediately (i) when the
Registration Statement and any amendments thereof become effective,
(ii) of any request by the Commission for any amendment of or
supplement to the Registration Statement or the Prospectus or for any
additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or any post-effective amendment thereto or of the initiation, or the
threatening, of any proceedings therefor, (iv) of the receipt of any
comments from the Commission, and (v) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for that purpose. If the Commission
shall propose or enter a stop order at any time, the Company will make
every reasonable effort to prevent the issuance of any such stop order
and, if issued, to obtain the lifting of such order as soon as
possible. The Company will not file any amendment to the Registration
Statement or any amendment of or supplement to the Prospectus before
or after the effective date of the Registration Statement to
13
which you shall reasonably object in writing after being timely
furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is
required to be delivered under the Act any event shall have occurred
as a result of which the Prospectus as then amended or supplemented
includes an untrue statement of a material fact or omits 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
were made, not misleading, or if it shall be necessary at any time to
amend or supplement the Prospectus or Registration Statement to comply
with the Act or the Regulations, the Company will notify you promptly
and prepare and file with the Commission an appropriate amendment or
supplement (in form and substance satisfactory to you) which will
correct such statement or omission and will use its best efforts to
have any amendment to the Registration Statement declared effective as
soon as possible.
(c) The Company will promptly deliver to you two signed copies of
the Registration Statement, including exhibits and all amendments
thereto, and the Company will promptly deliver to each of the several
Underwriters such number of copies of any preliminary prospectus, the
Prospectus, the Registration Statement, and all amendments of and
supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with
you, at or prior to the time the Registration Statement becomes
effective, to qualify the Shares for offering and sale under the
securities laws relating to the offering or sale of the Shares of such
jurisdictions as you may designate and to maintain such qualification
in effect for so long as required for the distribution thereof.
(e) The Company will make generally available (within the meaning
of Section 11(a) of the Act) to its security holders and to you as
soon as practicable, but not later than 45 days after the end of its
fiscal quarter in which the first anniversary of the effective date of
the Registration Statement occurs, an earnings statement (which need
not be audited but which shall satisfy the provisions of Section 11(a)
of the Act and Rule 158 of the Regulations) covering a period of at
least twelve consecutive months beginning after the effective date of
the Registration Statement.
(f) Except pursuant to this Agreement, during a period of 90 days
from the date of the Prospectus, the Company will not, without your
prior written consent, issue, sell, offer or agree to sell, or
otherwise dispose of, directly or indirectly, any Common Stock (or any
securities convertible into, exercisable for
14
or exchangeable for Common Stock, other than pursuant to existing
employee benefit plans and agreements and other existing compensation
agreements), and the Company will obtain the undertaking of each of
its officers and directors and such of its shareholders as have been
heretofore designated by you not to engage in any of the
aforementioned transactions on their own behalf, other than the
Company's sale of Shares hereunder and the Company's issuance of
Common Stock upon the exercise of presently outstanding stock options.
(g) During a period of five years from the effective date of the
Registration Statement, the Company will furnish to the
Representatives copies of (i) all reports to its shareholders; and
(ii) all reports, financial statements and proxy or information
statements filed by the Company with the Commission or any national
securities exchange.
(h) The Company will apply the proceeds from the sale of the
Shares as set forth under "Use of Proceeds" in the Prospectus.
(i) The Company will, from time to time, after the effective date
of the Registration Statement file with the Commission such reports as
are required by the Act and the Regulations and shall also file with
state securities commissions in states where the Shares have been sold
by you (as you shall have advised us in writing) such reports as are
required to be filed by the securities act and the regulations of
those states.
(j) The Company will not take, directly or indirectly, any action
designed to cause or result in, or which might constitute or
reasonably be expected to constitute, stabilization or manipulation of
the price of the shares of Common Stock.
B. Each of the Selling Shareholders covenants and agrees with the
several Underwriters that:
(a) Except pursuant to this Agreement, during a period of 90 days
from the date of the Prospectus, such Selling Shareholder will not,
without your prior written consent, sell, offer or agree to sell, or
otherwise dispose of, directly or indirectly, any shares of Common
Stock.
(b) Such Selling Shareholder will not take, directly or
indirectly, any action designed to cause or result in, or which might
constitute or reasonably be expected to constitute, stabilization or
manipulation of the price of the shares of Common Stock.
15
5. Payment of Expenses. Whether or not the transactions contemplated
-------------------
in this Agreement are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of the
obligations of the Company and the Selling Shareholders hereunder, including
those in connection with (i) preparing, printing, duplicating, filing and
distributing the Registration Statement, as originally filed and all amendments
thereof (including all exhibits thereto), any preliminary prospectus, the
Prospectus and any amendments thereof or supplements thereto, the underwriting
documents (including this Agreement and the Agreement Among Underwriters) and
all other documents related to the public offering of the Shares (including
those supplied to the Underwriters in quantities as hereinabove stated), (ii)
the issuance, transfer and delivery of the Shares to the Underwriters, including
any transfer or other taxes payable thereon, (iii) the qualification of the
Shares under state or foreign securities or Blue Sky laws, including the costs
of printing and mailing a preliminary and final "Blue Sky Survey" and the fees
of counsel for the Underwriters and such counsel's disbursements in relation
thereto, (iv) the cost of listing the Shares on the New York Stock Exchange and
(v) the review of the terms of the public offering of the Shares by the NASD.
6. Conditions of Underwriters' Obligations. The obligations of the
---------------------------------------
several Underwriters to purchase and pay for the Firm Shares and the Additional
Shares as provided herein, shall be subject to the accuracy of the
representations and warranties of the Company and the Selling Shareholders
herein contained, as of the date hereof and as of the Closing Date (or in the
case of the Additional Shares as of the Additional Closing Date), to the
accuracy of the statements contained in any certificates, opinions, written
statements or letters furnished to you or to Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, A
Professional Limited Liability Company ("Underwriters' Counsel") pursuant to
this Section 6, to the performance by the Company and the Selling Shareholders
of their respective obligations hereunder, and to the following additional
conditions:
(a) The Registration Statement shall have become effective not
later than 5:00 P.M., New York time, on the date of this Agreement or
at such later time and date as shall have been consented to in writing
by you, and, at or prior to the Closing Date and Additional Closing
Date, as the case may be, no stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment thereof
shall have been issued and no proceedings therefor shall have been
initiated or threatened by the Commission.
The respective obligations of the Company and the Selling
Shareholders hereunder are subject to the conditions set forth in this
Section 6(a).
(b) At the Closing Date and the Additional Closing Date, you shall
have received the opinion of Xxxxxxxxxx & Cody, L.L.P., counsel for
the Company, dated the Closing Date, addressed to the Underwriters and
in form and substance satisfactory to Underwriters' Counsel, to the
effect that:
16
(i) Each of the Company and its subsidiaries (the "Significant
Subsidiaries") listed in Exhibit 22 to the Company's Annual Report on
Form 10-K for the fiscal year ended April 30, 1996 (the "Company 10-
K") has been duly organized and is validly existing as a corporation
in good standing under the laws of its jurisdiction of incorporation.
Each of the Company and the Significant Subsidiaries is duly qualified
and in good standing as a foreign corporation in each jurisdiction in
which the character or location of its properties (owned, leased or
licensed) or the nature or conduct of its business makes such
qualification necessary, except for those failures to be so qualified
or in good standing which will not in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as a whole.
Each of the Company and the Significant Subsidiaries has all requisite
corporate authority to own, lease and license its respective
properties and conduct its business as now being conducted and as
described in the Registration Statement and the Prospectus. All of the
issued and outstanding capital stock of each Significant Subsidiary of
the Company has been duly and validly issued and is fully paid and
nonassessable and free of preemptive rights and, except as disclosed
in the Company 10-K, to the best knowledge of such counsel, is owned
directly or indirectly by the Company, free and clear of any lien,
encumbrance, claim, security interest, restriction on transfer,
shareholders' agreement, voting trust or other defect of title
whatsoever.
(ii) The Company has authorized capital stock as set forth in the
Registration Statement and the Prospectus. All of the outstanding
shares of Common Stock are duly and validly authorized and issued, are
fully paid and nonassessable and were not issued in violation of or
subject to any preemptive rights. The Shares to be delivered on the
Closing Date have been duly and validly authorized and, when delivered
in accordance with this Agreement, will be duly and validly issued,
fully paid and nonassessable and will not have been issued in
violation of or subject to any preemptive rights. Each of the
Underwriters will receive good, valid and marketable title to the Firm
Shares hereunder, free and clear of all liens, encumbrances, claims,
security interests, restrictions on transfer, shareholders'
agreements, voting trusts and other defects of title whatsoever. The
Common Stock and the Firm Shares conform to the descriptions thereof
contained in the Registration Statement and the Prospectus.
(iii) The Common Stock currently outstanding is listed, and the
Shares to be sold under this Agreement by the Company to the
Underwriters are duly authorized for listing, on the NYSE.
17
(iv) This Agreement has been duly and validly authorized, executed
and delivered by the Company and is a valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms (assuming Georgia law governs), except to the extent that rights
to indemnity hereunder may be limited by federal or state securities
laws or the public policy underlying such laws.
(v) To the best of such counsel's knowledge, there is no
litigation or governmental or other action, suit, proceeding or
investigation before any court or before or by any public, regulatory
or governmental agency or body pending or threatened against, or
involving the properties or business of, the Company or any of its
subsidiaries, which, if resolved against the Company or such
subsidiary, individually or, to the extent involving related claims or
issues, in the aggregate, is of a character required to be disclosed
in the Registration Statement and the Prospectus which has not been
properly disclosed therein.
(vi) The execution, delivery, and performance of this Agreement
and the consummation of the transactions contemplated hereby by the
Company will not (A) conflict with or result in a breach of any of the
terms and provisions of, or constitute a default (or an event which
with notice or lapse of time, or both, would constitute a default) or
require consent under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company
or any of its subsidiaries pursuant to the terms of any material
agreement, instrument, franchise, license or permit known to such
counsel to which the Company or any of its subsidiaries is a party or
by which any of such corporations or their respective properties or
assets may be bound or (B) violate or conflict with any provision of
the charter or bylaws of the Company or any of its subsidiaries, or,
to the best knowledge of such counsel, any judgment, decree, order,
statute, rule or regulation of any court or any public, governmental
or regulatory agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their respective properties or
assets. To the best knowledge of such counsel, no consent, approval,
authorization, order, registration, filing, qualification, license or
permit of or with any court or any public, governmental, or regulatory
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets is
required for the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby, except
for (l) such as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Shares by
the Underwriters (as to which such counsel
18
need express no opinion) and (2) such as have been made or
obtained under the Act.
(vii) The Registration Statement and the Prospectus and any
amendments thereof or supplements thereto (other than the
financial statements and schedules and other financial and
statistical data included or incorporated by reference therein, as
to which no opinion need be rendered), as of their respective
effective or issue dates, comply as to form in all material
respects with the requirements of the Act and the Regulations.
(viii) The Registration Statement is effective under the Act,
and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment thereof has been issued and no
proceedings therefor have been initiated or overtly threatened by
the Commission.
(ix) The choice of New York law to govern this Agreement is
valid under Georgia law.
In addition to the matters set forth herein, such opinion shall also
include a statement to the effect that no facts have come to the attention of
such counsel which would lead such counsel to believe that either the
Registration Statement at the time it became effective (or any amendment thereof
made prior to the Closing Date as of the date of such amendment) contained an
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus as of the date thereof (or any amendment
thereof or supplement thereto made prior to the Closing Date as of the date of
such amendment or supplement) contained an untrue statement of a material fact
or omitted to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading (it being understood that such counsel need express no
belief or opinion with respect to the financial statements and schedules and
other financial and statistical data included or incorporated by reference
therein).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
jurisdictions in which they are admitted, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory to Underwriters'
Counsel) of other counsel reasonably acceptable to Underwriters' Counsel,
familiar with the applicable laws (specifically, with respect to the opinions in
subparagraphs (i), (ii) and (v), the opinion of Xxxxx Xxxxxxx, general counsel
of the Company); (B) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and certificates
19
or other written statements of officers of departments of various jurisdictions
having custody of documents respecting the corporate existence or good standing
of the Company and its subsidiaries, provided that copies of any such statements
or certificates shall be delivered to Underwriters' Counsel. The opinion of
such counsel for the Company shall state that the opinion of any such other
counsel is in form satisfactory to such counsel and, in their opinion, you and
they are justified in relying thereon.
(c) At the Closing Date you shall have received the favorable
opinion of Xxxxxxxxxx & Xxxx, L.L.P., counsel for certain of the
Selling Shareholders, and ________________________________________,
counsel to _____________________________________, each dated the
Closing Date or the Additional Closing Date, as the case may be,
addressed to the Underwriters and in form and substance satisfactory
to Underwriters' Counsel, to the effect that:
(i) This Agreement has been duly and validly authorized,
executed and delivered by (or on behalf of each of) the Selling
Shareholders and is a valid and binding obligation of each of the
Selling Shareholders, enforceable against each of the Selling
Shareholders in accordance with its terms, except to the extent
that rights to indemnity hereunder may be limited by applicable
federal or state securities laws or the public policy underlying
such laws.
(ii) To the best knowledge of such counsel, each of the
Selling Shareholders has all requisite power and authority, and
all necessary consents, approvals, authorizations, orders,
registrations, filings, qualifications, licenses and permits of
and from all courts and all public, governmental or regulatory
agencies and bodies as are required for the execution, delivery
and performance of this Agreement and the consummation of the
transactions contemplated hereby except for (1) such as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the
Underwriters (as to which such counsel need express no opinion)
and (2) such as have been made or obtained under the Act.
(iii) Upon delivery and payment of the purchase price for the
Shares to be sold by each of the Selling Shareholders as
contemplated herein, the Underwriters will receive valid and
marketable title to the Selling Shareholders' Shares, free and
clear of any security interests, claims, liens, equities, and
other encumbrances, assuming that the Underwriters are purchasing
the Selling Shareholders' Shares in good faith and without notice
of any adverse claim as such terms are used and defined in Article
8 of the Uniform Commercial Code.
20
(iv) The execution, delivery and performance of this
Agreement by each of the Selling Shareholders and the consummation
of the transactions contemplated hereby will not violate or
conflict with, to the best knowledge of such counsel, any
judgment, decree, order, statute, rule or regulation of any court
or any public, governmental or regulatory agency or body
applicable to the Selling Shareholders or any of their properties
or assets.
(v) The Statements in the Prospectus under the caption
"Principal and Selling Shareholders," insofar as such statements
constitute a summary of contracts and other legal matters referred
to therein, fairly present the information called for with respect
to such matters.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United
States and jurisdictions in which they are admitted, to the extent
such counsel deems proper and to the extent specified in such opinion,
if at all, upon an opinion or opinions (in form and substance
reasonably satisfactory to Underwriters' Counsel) of other counsel
reasonably acceptable to Underwriters' Counsel, familiar with the
applicable laws; (B) as to matters of fact, to the extent they deem
proper, on certificates of the Selling Shareholders, provided that
copies of any such statements or certificates shall be delivered to
Underwriters' Counsel. The opinions of such counsel for the Selling
Shareholders shall state that the opinion of any such other counsel is
in form satisfactory to such counsel and, in their opinion, you and
they are justified in relying thereon.
(d) At the Closing Date and Additional Closing Date, you shall
have received a certificate of the President and the Chief Financial
Officer of the Company, dated the Closing Date or Additional Closing
Date, as the case may be, to the effect that the condition set forth
in subsection (a) of this Section 6 has been satisfied, that as of the
date hereof and as of the Closing Date or Additional Closing Date, as
the case may be, the representations and warranties of the Company set
forth in Section 1A. hereof are accurate, and that as of the Closing
Date or the Additional Closing Date, as the case may be, the
obligations of the Company to be performed hereunder on or prior
thereto have been duly performed.
(e) At the Closing Date and Additional Closing Date, you shall
have received a certificate executed by the Selling Shareholders,
dated the Closing Date or Additional Closing Date, as the case may be,
to the effect that the representations and warranties of each of the
Selling Shareholders set forth in Sections 1A.(b) and 1B. hereof are
accurate, and that as of the Closing Date or the Additional Closing
Date, as the case may be, the obligations of each of the Selling
21
Shareholders to be performed hereunder on or prior thereto have been
duly performed.
(f) At the time this Agreement is executed and at the Closing Date
and Additional Closing Date, you shall have received a letter, from
Xxxxxx Xxxxxxxx, LLP, independent public accountants for the Company,
dated, respectively, as of the date of this Agreement and as of the
Closing Date or Additional Closing Date, as the case may be, addressed
to the Underwriters and in form and substance satisfactory to you, to
the effect that: (i) they are independent certified public accountants
with respect to the Company within the meaning of the Act and the
applicable published rules and regulations of the Commission
thereunder and stating that the answer to Item 10 of the Registration
Statement is correct insofar as it relates to them; (ii) stating that,
in their opinion, the financial statements and schedules of the
Company included in the Registration Statement and the Prospectus and
covered by their opinion therein comply as to form in all material
respects with the applicable accounting requirements of the Act and
the applicable published rules and regulations of the Commission
thereunder; (iii) on the basis of procedures (but not an examination
made in accordance with generally accepted auditing standards)
consisting of a reading of the latest available unaudited interim
consolidated financial statements of the Company and its subsidiaries,
a reading of the minutes of meetings and consents of the shareholders
and boards of directors of the Company and its subsidiaries and the
committees of such boards subsequent to April 30, 1996, inquiries of
officers and other employees of the Company and its subsidiaries who
have responsibility for financial and accounting matters of the
Company and its subsidiaries with respect to transactions and events
subsequent to April 30, 1996, and other specified procedures and
inquiries to a date not more than five days prior to the date of such
letter, nothing has come to their attention that would cause them to
believe that: (A) the unaudited consolidated financial statements and
schedules of the Company included in the Registration Statement and
the Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the applicable
published rules and regulations of the Commission thereunder or that
such unaudited consolidated financial statements are not fairly
presented in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited
consolidated financial statements included in the Registration
Statement and the Prospectus; (B) with respect to the period
subsequent to October 31, 1996, there were, as of the date of the most
recent available monthly consolidated financial statements of the
Company and its subsidiaries, if any, and as of a specified date not
more than five days prior to the date of such letter, any changes in
the capital stock or long-term indebtedness of the Company or any
decrease in the net current assets or stockholders' equity of the
Company, in each case as compared with the amounts shown in the most
recent balance sheet included in the
22
Registration Statement and the Prospectus, except for changes or
decreases which the Registration Statement and the Prospectus disclose
have occurred or may occur or which are set forth in such letter; or
(C) that during the period from August 1, 1996 to the date of the most
recent available monthly consolidated financial statements of the
Company and its subsidiaries, if any, and to a specified date not more
than five days prior to the date of such letter, there was any
decrease, as compared with the corresponding period in the prior
fiscal year, in total revenues, or total or per share net income,
except for decreases which the Registration Statement and the
Prospectus disclose have occurred or may occur or which are set forth
in such letter; and (iv) stating that they have compared specific
dollar amounts, numbers of shares, percentages of revenues and
earnings, and other financial information pertaining to the Company
and its subsidiaries set forth in the Registration Statement and the
Prospectus, which have been specified by you prior to the date of this
Agreement, to the extent that such amounts, numbers, percentages, and
information may be derived from the general accounting and financial
records of the Company and its subsidiaries or from schedules
furnished by the Company, and excluding any questions requiring an
interpretation by legal counsel, with the results obtained from the
application of specified readings, inquiries, and other appropriate
Procedures specified by you (which procedures do not constitute an
examination in accordance with generally accepted auditing standards)
set forth in such letter, and found them to be in agreement.
(g) All material proceedings taken in connection with the sale of
the Firm Shares and the Additional Shares as herein contemplated shall
be reasonably satisfactory in form and substance to you and to
Underwriters' Counsel, and the Underwriters shall have received from
said Underwriters' Counsel a favorable opinion, dated as of the
Closing Date and the Additional Closing Date, as the case may be, with
respect to the issuance and sale of the Shares, the Registration
Statement and the Prospectus and such other related matters, as you
may reasonably require, and the Company and the Selling Shareholders
shall have furnished to Underwriters' Counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(h) Prior to the Closing Date and the Additional Closing Date, the
Company and the Selling Shareholders shall have furnished to you such
further information, certificates and documents as you may reasonably
request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 6 shall not be in all material
respects reasonably satisfactory in form and substance to you and to
Underwriters' Counsel, all obligations of the Underwriters hereunder may be
cancelled by you at, or at any time
23
prior to, the Closing Date and the obligations of the Underwriters to purchase
the Additional Shares may be cancelled by you at, or at any time prior to, the
Additional Closing Date. Notice of such cancellation shall be given to the
Company and each of the Selling Shareholders in writing, or by telephone, telex
or telegraph, confirmed in writing.
7. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, against any and all losses, liabilities, claims, damages
and expenses whatsoever (including but not limited to attorneys' fees
and any and all expense whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation), joint or several, to which
they or any of them may become subject under the Act, the Exchange Act
or otherwise, insofar as such losses, liabilities, claims, damages or
expenses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or any related
preliminary prospectus or the Prospectus, or in any supplement thereto
or amendment thereof, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that the Company will not be liable in
------------------
any such case to the extent but only to the extent that any such loss,
liability, claim, damage or expense (or actions in respect thereof)
arises out of or is based upon (i) any such untrue statement or
alleged untrue statement or omission or alleged omission made therein
in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter through you, in each
case expressly for use therein or (ii) the failure of an Underwriter
to send or deliver a Prospectus, following delivery of a preliminary
prospectus, to a person asserting a loss, claim, damage or liability,
at or prior to the written confirmation of the sale of the Shares to
such person if the Prospectus did not contain the untrue statement or
alleged untrue statement or omission or alleged omission giving rise
to such loss, claim, damage or liability. This indemnity agreement
will be in addition to any liability which the Company may otherwise
have including under this Agreement.
(b) Each of the Selling Shareholders severally, and not jointly,
agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, against
any and all losses, liabilities, claims, damages and expenses
whatsoever (including but not limited to attorneys' fees and any and
24
all expense whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any
claim or litigation), joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or otherwise,
insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement, or any related preliminary prospectus or
the Prospectus, or in any supplement thereto or amendment thereof, or
arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
---------
however, that any Selling Shareholder will only be liable in any such
--------
case to the extent but only to the extent that any such loss,
liability, claim, damage or expense (or actions in respect thereof)
arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of such Selling Shareholder (insofar as it
relates to such Selling Shareholder), in each case expressly for use
therein; and provided further that no Selling Shareholder shall be
----------------
liable for an amount exceeding the total proceeds received from the
offering (net of underwriting discounts and commissions, but before
deducting expenses) by such Selling Shareholder. This indemnity
agreement will be in addition to any liability which the Selling
Shareholders may otherwise have including under this greement.
(c) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of the Selling
Shareholders, each of the directors of the Company, each of the
officers of the Company who shall have signed the Registration
Statement, and each other person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, against any losses, liabilities, claims, damages and
expenses whatsoever (including but not limited to attorneys' fees and
any and all expenses whatsoever incurred in investigating, preparing
or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any
claim or litigation), joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or otherwise,
insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement, or any related preliminary prospectus or
the Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that any
25
such loss, liability, claim, damage or expense arises out of or is
based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Underwriter through you expressly for use therein. This
indemnity will be in addition to any liability which any Underwriter
may otherwise have including under this Agreement. The Company and
each of the Selling Shareholders acknowledge that the statements set
forth in the last paragraph of the cover page and in the third and
fourth paragraphs under the caption "Underwriting" in the Prospectus
constitute the only information furnished in writing by or on behalf
of any Underwriter expressly for use in the Registration Statement,
any related preliminary prospectus or the Prospectus or in any
amendment thereof or supplement thereto, as the case may be.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection,
notify each party against whom indemnification is to be sought in
writing of the commencement thereof (but the failure so to notify an
indemnifying party shall not relieve it from any liability which it
may have under this Section 7 except to the extent that it has been
prejudiced in any material respect by such failure or from any
liability which it may have otherwise). In case any such action is
brought against any indemnified party, and it notifies an indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent it may elect by
written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume
the defense thereof with counsel satisfactory to such indemnified
party. Notwithstanding the foregoing, the indemnified party or parties
shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or parties unless (i) the employment
of such counsel shall have been authorized in writing by one of the
indemnifying parties in connection with the defense of such action,
(ii) the indemnifying parties shall not have employed counsel to have
charge of the defense of such action within a reasonable time after
notice of commencement of the action, or (iii) such indemnified party
or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to
those available to one or all of the indemnifying parties (in which
case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties),
in any of which events such fees and expenses shall be borne by the
indemnifying parties. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or action
26
effected without its written consent; provided, however, that such
------------------
consent was not unreasonably withheld.
8. Contribution. In order to provide for contribution in
------------
circumstances in which the indemnification provided for in Sections 7(a) and
7(b) hereof is for any reason held to be unavailable from the Company or the
Selling Shareholders or is insufficient to hold harmless a party indemnified
thereunder, the Company, each of the Selling Shareholders and the Underwriters
shall contribute to the aggregate losses, claims, damages, liabilities and
expenses of the nature contemplated by such indemnification provisions
(including any investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claims asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company and the Selling Shareholders,
any contribution received by the Company or the Selling Shareholders from
persons, other than the Underwriters, who may also be liable for contribution,
including persons who control the Company within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act, officers of the Company who signed
the Registration Statement and directors of the Company) to which the Company,
the Selling Shareholders and one or more of the Underwriters may be subject, in
such proportions as is appropriate to reflect the relative benefits received by
the Company, the Selling Shareholders and the Underwriters from the offering of
the Shares or, if such allocation is not permitted by applicable law or
indemnification is not available as a result of the indemnifying party not
having received notice as provided in Section 7 hereof, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company, the Selling Shareholders and the Underwriters
in connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company, the
Selling Shareholders and the Underwriters, respectively, shall be deemed to be
in the same proportion as (x) the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and the Selling Shareholders, (y) the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Selling Shareholders (but only to the extent the
proceeds received by the Selling Shareholders are found by a final judgment of a
court of competent jurisdiction not to be received by the Company as provided in
clause (x)) and (z) the underwriting discounts and commissions received by the
Underwriters, respectively, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company, the Selling
Shareholders and of the Underwriters shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Shareholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company,
the Selling Shareholders and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the foregoing
provisions of this Section 8, (i) in no case shall any Underwriter (except as
may be provided in the Agreement Among Underwriters) be liable or
27
responsible for any amount in excess of the underwriting discount applicable to
the Shares purchased by such Underwriter hereunder, nor shall any Underwriter be
liable except to the extent that any such statements or omissions which resulted
in such losses, claims, damages, liabilities, or expenses were made in reliance
upon and in conformity with written information furnished by such Underwriter
expressly for use in the Registration Statement, (ii) each Selling Shareholder
will only be liable to the extent that any such statements or omissions which
resulted in such losses, claims, damages, liabilities, or expenses were made in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Selling Shareholder (insofar as it relates to
such Selling Shareholder), in each case expressly for use in the Registration
Statement, (iii) no Selling Shareholder shall be liable for an amount exceeding
the total proceeds received from the offering (net of underwriting discounts and
commissions, but before deducting expenses) by such Selling Shareholder, and
(iv) 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. No provision contained
herein shall limit the liability an officer or director of the Company shall
otherwise have (for indemnification, contribution or otherwise) to any
Underwriter by reason of his status as such or as a controlling person of the
Company notwithstanding the limitations contained herein on such person's
indemnification and contribution obligations as a Selling Shareholder. For
purposes of this Section 8, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act
shall have the same rights to contribution as such Underwriter, each person, if
any, who controls a Selling Shareholders within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act shall have the same rights to
contribution as the Selling Shareholders, and each person, if any, who controls
the Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (i) - (iv) of
this Section 8. Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party
or parties under this Section 8, notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 8 or otherwise. No party
shall be liable for contribution with respect to any action or claim settled
without its consent; provided, however, that such consent was not unreasonably
------------------
withheld.
9. Default by an Underwriter.
-------------------------
(a) If any Underwriter or Underwriters shall default in its or
their obligation to purchase Firm Shares or Additional Shares
hereunder, and if the Firm Shares or Additional Shares with respect to
which such default relates do not (after giving effect to
arrangements, if any, made by you pursuant to subsection (b) below)
exceed in the aggregate 10% of the number of shares of Firm Shares or
Additional Shares, as the case may be, which all Underwriters have
agreed to purchase hereunder, then such Firm Shares or Additional
Shares to which the default relates shall be purchased by the non-
defaulting Underwriters in proportion to the respective proportions
which the numbers of Firm Shares set forth opposite their respective
names in Column (1) of Schedule II hereto bear to the aggregate number
of Firm Shares set forth opposite the names of the nondefaulting
Underwriters.
28
(b) In the event that such default relates to more than 10% of the
Firm Shares or Additional Shares, as the case may be, you may in your
discretion arrange for yourself or for another party or parties
(including any nondefaulting Underwriter or Underwriters who so agree)
to purchase such Firm Shares or Additional Shares, as the case may be,
to which such default relates on the terms contained herein. In the
event that within three calendar days after such a default you do not
arrange for the purchase of the Firm Shares or Additional Shares, as
the case may be, to which such default relates as provided in this
Section 9, this Agreement or, in the case of a default with respect to
the Additional Shares, the obligations of the Underwriters to purchase
and of the Selling Shareholders to sell the Additional Shares, shall
thereupon terminate, without liability on the part of the Company or
the Selling Shareholders with respect thereto (except in each case as
provided in Sections 5, 7(a), 7(b) and 8 hereof) or the nondefaulting
Underwriters, but nothing in this Agreement shall relieve a defaulting
Underwriter or Underwriters of its or their liability, if any, to the
other several Underwriters, the Company and the Selling Shareholders
for damages occasioned by its or their default hereunder.
(c) In the event that the Firm Shares or Additional Shares to
which the default relates are to be purchased by the nondefaulting
Underwriters, or are to be purchased by another party or parties as
aforesaid, you or the Company shall have the right to postpone the
Closing Date or Additional Closing Date, as the case may be, for a
period, not exceeding five business days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or
the Prospectus or in any other documents and arrangements, and the
Company agrees to file promptly any amendment or supplement to the
Registration Statement or the Prospectus which, in the opinion of
Underwriters' Counsel, may thereby be made necessary or advisable. The
cost of preparing, printing and filing any such amendments or
supplements shall be paid by the Underwriters. The term "Underwriter"
as used in this Agreement shall include any party substituted under
this Section 9 with like effect as if it had originally been a party
to this Agreement with respect to such Firm Shares and Additional
Shares.
10. Survival of Representations and Agreements. All representations
------------------------------------------
and warranties, covenants and agreements of the Underwriters, the Selling
Shareholders and the Company contained in this Agreement, including the
agreements contained in Section 5, the indemnity agreements contained in Section
7 and the contribution agreements contained in Section 8, shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of any Underwriter or any controlling person thereof or by or on behalf
of the Company, any of its officers and directors or any of the Selling
Shareholders or any controlling person thereof, and shall survive delivery of
and payment for the Shares to and by the several Underwriters; provided,
however, that the representations contained in Section 1B.(h) shall be
extinguished as of the Closing Date or, in the event the Underwriters'
over-allotment option is exercised, the Additional Closing Date.
29
The representations contained in Section 1 and the agreements contained in
Sections 5, 7, 8 and 11(d) hereof shall survive the termination of this
Agreement including pursuant to Sections 9 or 11 hereof; provided, however, that
the representations contained in Section 1B.(h) shall not survive and shall be
extinguished upon the termination of this Agreement.
11. Effective Date of Agreement; Termination.
----------------------------------------
(a) This Agreement shall become effective at such time after
notification of the effectiveness of the Registration Statement as you, the
Company and the Selling Shareholders shall agree upon the public offering price
and the purchase price per Share. If either the public offering price or the
purchase price per Share has not been agreed upon prior to 5:00 p.m., New York
time, on the seventh full business day following the day on which the
Registration Statement becomes effective, this Agreement shall thereupon
terminate without liability to the Company, the Selling Shareholders or the
Underwriters except as herein expressly provided). Until this Agreement becomes
effective as aforesaid, it may be terminated by the Company by notifying you and
the Selling Shareholders or by action only of the Selling Shareholders directly
by notifying the Company and you or by you notifying the Company and the Selling
Shareholders. Notwithstanding the foregoing, the provisions of this Section 11
and of Sections 1, 5, 7 and 8 hereof shall at all times be in full force and
effect.
(b) You shall have the right to terminate this Agreement at any
time prior to the Closing Date or the obligations of the Underwriters to
purchase the Additional Shares at any time prior to the Additional Closing Date,
as the case may be, if any domestic or international event or act or occurrence
has materially disrupted, or in your opinion will in the immediate future
materially disrupt, securities markets; or if trading on the New York or
American Stock Exchanges shall have been suspended, or minimum or maximum prices
for trading shall have been fixed, or maximum ranges for prices for securities
shall have been required, on the New York or American Stock Exchanges by the New
York or American Stock Exchanges or by order of the Commission or any other
governmental authority having jurisdiction; or if the United States shall have
become involved in a war or major hostilities; or if a banking moratorium has
been declared by a state or federal authority, or if a moratorium in foreign
exchange trading by major international banks or persons has been declared; or
if any new restriction materially adversely affecting the distribution of the
Firm Shares or the Additional Shares, as the case may be, shall have become
effective; or if there shall have been such change in the market for the
Company's securities or securities in general or in political, financial or
economic conditions as in your reasonable judgment makes it inadvisable to
proceed with the offering, sale and delivery of the Firm Shares or the
Additional Shares, as the case may be, on the terms contemplated by the
Prospectus.
(c) Any notice of termination pursuant to this Section 11 shall be
by telephone, telex, or telegraph, confirmed in writing by letter.
30
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 11(a) hereof or (ii) Sections 9(b) or 11(b) hereof), or if
the sale of the Shares provided for herein is not consummated because of any
refusal, inability or failure on the part of the Company or the Selling
Shareholders to perform any agreement herein or comply with any provision
hereof, the Company agrees subject to demand by you, to reimburse the
Underwriters for all reasonable out-of-pocket expenses (including the fees and
expenses of their counsel), incurred by the several Underwriters in connection
herewith, but in no event shall the Company be liable for the loss of
anticipated profits by the Underwriters.
12. Notice. All communications hereunder, except as may be otherwise
------
specifically provided herein, shall be in writing and, if sent to any
Underwriter, shall be mailed, delivered, or telexed or telegraphed and confirmed
in writing, to such Underwriter c/o Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx,
Xxx Xxxx, X.X. 00000, Attention: Corporate Finance; if sent to the Company or
any of the Selling Shareholders, shall be mailed, delivered, or telegraphed and
confirmed in writing, in the case of the Company, to the Company, 000 Xxxxxx 00
Xxxxxxx, Xxxxxxx Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx and Xxxxx Xxxxxxx
and, in the case of the Selling Shareholders, to Xxxxxxx X. Xxxxxx, 000 Xxxxxx
00 Xxxxxxx, Xxxxx 0000, Xxxxxxx Xxxxxxx 00000.
13. Parties. You represent that you are authorized to act on behalf
-------
of the several Underwriters named in Schedule II hereto, and the Company and the
Selling Shareholders shall be entitled to act and rely on any request, notice,
consent, waiver or agreement purportedly given on behalf of the Underwriters
when the same shall have been given by you on such behalf. This Agreement shall
inure solely to the benefit of, and shall be binding upon, the several
Underwriters, the Selling Shareholders and the Company and the controlling
persons, directors, officers, employees and agents referred to in Sections 7 and
8, and their respective successors and assigns, and no other person shall have
or be construed to have any legal or equitable right, remedy or claim under or
in respect of or by virtue of this Agreement or any provision herein contained.
The term "successors and assigns" shall not include a purchaser, in its capacity
as such, of Shares from any of the Underwriters.
14. Construction. This Agreement shall be construed in accordance
------------
with the internal laws of the State of New York.
15. 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.
31
If the foregoing correctly sets forth the understanding among you, the
Company and the Selling Shareholders, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding
agreement among us.
Very truly yours,
XXXXXX INDUSTRIES, INC.
By ___________________________________________
Xxxxxxx X. Xxxxxx
Chairman, President and
Chief Executive Officer
SELLING SHAREHOLDERS
______________________________________________
Xxxxxxx X. Xxxxxx
Accepted as of the date first above written.
BEAR, XXXXXXX & CO. INC.
X.X. XXXXXXXX & CO.
XXXXXXXXXX SECURITIES
THE XXXXXXXX-XXXXXXXX COMPANY, INC.
By BEAR, XXXXXXX & CO. INC.
By ___________________________________
Managing Director
On behalf of themselves and the other several
Underwriters named in Schedule I hereto.
32
SCHEDULE I
(1) (2)
Number of Firm Number of Firm
Shares to be Shares to be
Purchased from the Purchased from the
Name of Underwriter Company Selling Shareholders
------------------- ------------------- --------------------
Bear, Xxxxxxx & Co. Inc.
X.X. Xxxxxxxx & Co.
Xxxxxxxxxx Securities
The Xxxxxxxx-Xxxxxxxx Company, Inc.
--------------------------------------------------------------------------------
TOTAL UNDERWRITERS (___) 1,000,000 2,365,685
--------------------------------------------------------------------------------
33
SCHEDULE II
Name of Selling Shareholder Firm Shares to be Sold
--------------------------- ----------------------
Xxxxxx X. Xxx 45,395
Xxxxxxx X. Xxx 45,395
Xxxxx Xxx 100,000
Xxxxxxx X. Xxxxxxxx 26,000
Creed X. Xxxx 20,000
Xxxxxxx X. Xxxxxxx 20,000
Xxxxxxx X. Xxxxxx 2,000,000
R. Xxxxxxx Xxxxx 60,000
Xxxxxxx Xxx Xxxxxx 48,895
------------------ ---------
Total 2,365,685
=========
34
