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2,500,000 SHARES
REALTY INFORMATION GROUP, INC.
COMMON STOCK
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UNDERWRITING AGREEMENT
SELECTED DEALER AGREEMENT
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_________________, 1998
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2,500,000 SHARES
REALTY INFORMATION GROUP, INC.
COMMON STOCK
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UNDERWRITING AGREEMENT
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______________, 1998
XXXXX & COMPANY INCORPORATED
XXXXXXX & COMPANY, INC.
As Representatives of the Several
Underwriters
c/o Allen & Company Incorporated
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
REALTY INFORMATION GROUP, INC., a Delaware corporation (the
"Company"), hereby confirms its agreement with the several Underwriters named in
Schedule A hereto (the "Underwriters"), for which you are acting as
representatives (the "Representatives"), as follows:
1. DESCRIPTION OF SECURITIES. The Company has authorized by
appropriate corporate action and proposes to issue and sell to the Underwriters
up to 2,500,000 shares of its Common Stock, $.01 par value, as further described
in Section 3 hereof. The shares of Common Stock to be sold to the Underwriters
by the Company are herein referred to as the "Purchased Shares". In addition, as
provided in Section 3 hereof, the Company is granting to the Underwriters an
option to purchase up to 250,000 additional shares of the Company's Common Stock
(the "Option Shares"). The "Company Shares" and the "Option Shares" are herein
collectively referred to as the "Shares."
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY.
As used in this Section 2, the "Company" shall mean each of the
Company and, where applicable, each of Realty Information Group, L.P., a
Delaware limited partnership ("RIGLP"), and Old RIG, Inc., a Delaware
corporation ("RIGINC", formerly Realty Information Group, Inc.), predecessors to
the Company, with respect to the business and operations of the Company as
conducted through the First Closing Date (hereinafter defined). "Related
Transactions" shall mean the transactions to be consummated pursuant to that
certain Agreement and Plan of Contribution dated March 5,
1998 among the Company, the stockholders of RIGINC and the limited partners of
RIGLP (the "RIG Contribution Agreement").
(a) The Company represents and warrants to and agrees with each
Underwriter that:
(i) A registration statement on Form S-1 (File No. 333-47953)
with respect to the Shares, including a preliminary form of
prospectus, copies of which have heretofore been delivered to you, has
been prepared by the Company in conformity with the requirements of
the Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") under the Act, and has been
filed with the Commission under the Act; such amendment or amendments
to such registration statement, copies of which have heretofore been
delivered to you, as may have been made prior to the date of this
Agreement have been so prepared and filed; and the Company has so
prepared and proposes so to file in a timely manner after the
effective date of such registration statement the final form of
prospectus. Such registration statement (including all exhibits
thereto), as finally amended and revised as of the time the
Underwriters first offer the Shares for sale to the public together
with information, if any, which is permitted to be, and is,
subsequently filed pursuant to Rule 430A of the Rules and Regulations,
is herein referred to as the "Registration Statement". Such prospectus
in the form filed pursuant to Rule 424(b) of the Rules and
Regulations, or, if no final prospectus is filed with the Commission
pursuant to Rule 424(b), in such form as such final prospectus is
included in the Registration Statement, is herein referred to as the
"Prospectus". Each preliminary form of prospectus is herein referred
to as a "Preliminary Prospectus".
(ii) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus. At the time of
filing of each Preliminary Prospectus, such prospectus did not include
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading. When the Registration Statement becomes
effective and at all times subsequent thereto up to and at each
Closing Date (hereinafter defined) (i) the Registration Statement and
Prospectus and any amendments or supplements thereto will contain as
of their respective dates all material statements and information
which are required to be included therein in accordance with the Act
and Rules and Regulations and will in all material respects conform to
the requirements of the Act and the Rules and Regulations, and (ii)
neither the Registration Statement nor the Prospectus, nor any
amendment or supplement thereto, will include as of their respective
dates any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the
foregoing representations and warranties shall not apply to
information contained in or omitted from the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon,
and in conformity with, written information furnished to the Company
by any Underwriter through you specifically for use in the preparation
thereof.
(iii) Set forth on Schedule B hereto is the name of each
subsidiary of the Company which holds assets or conducts operations
which are material to the financial condition, results of operations,
business or prospects of the Company and the Subsidiaries taken as a
whole and, unless otherwise indicated thereon, the Company holds all
right, title and interest in and to the entire equity interest in each
such subsidiary. Except as described in the Prospectus, subsequent to
the respective dates as of which information is given in the
Registration Statement and the Prospectus, neither the Company, nor
any entity which is either identified in the Prospectus as a
subsidiary of the Company or listed on Schedule B hereto (each
individually a
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"Subsidiary" and collectively the "Subsidiaries"), taken as a whole,
has incurred any direct or, to the best of the Company's knowledge,
contingent material liabilities or material obligations, or entered
into any material transactions or contracts not in the ordinary course
of business, and there has not been any change in its capital shares,
options or warrants, nor any material increase or decrease in the
amount thereof outstanding or in any of its long-term debt
outstanding, except pursuant to the terms of the instruments governing
the same, or any material adverse change in the condition (financial
or otherwise), results of operations, business or prospects of the
Company and the Subsidiaries taken as a whole.
(iv) Except as set forth in the Prospectus, there is not now
pending or, to the knowledge of the Company, threatened, any action,
suit or proceeding to which the Company or any Subsidiary is a party
before any court or governmental agency or body which might result in
any material adverse change in the condition (financial or otherwise),
results of operations, business or prospects of the Company and the
Subsidiaries taken as a whole, or might materially and adversely
affect the properties, assets or ability to do business as
contemplated in the Prospectus of the Company and the Subsidiaries
taken as a whole; and there are no contracts or documents required to
be filed as exhibits to the Registration Statement by the Act or by
the Rules and Regulations which have not been filed as exhibits to the
Registration Statement.
(v) This Agreement and the RIG Contribution Agreement have been
duly authorized, executed and delivered on behalf of the Company,
RIGINC and RIGLP, as applicable, and constitute valid and binding
agreements of the Company, RIGINC and RIGLP, as applicable,
enforceable in accordance with their terms, except (1) that such
enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights, (2) that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought and (3) as rights to indemnity or
contribution hereunder may be limited by federal or state securities
laws. The execution, delivery and performance of this Agreement and
the RIG Contribution Agreement and the consummation of the
transactions herein contemplated and the Related Transactions will not
result in a material breach or material violation of any term or
provision of, or constitute a material default under, any currently
existing statute, any indenture, mortgage, deed of trust, note
agreement or other agreement or instrument to which the Company,
RIGINC and RIGLP, as applicable, or any Subsidiary is a party or by
which it or its property is bound, the charter or by-laws or other
organizational documents of the Company, RIGINC and RIGLP, as
applicable, or any Subsidiary or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company, RIGINC and RIGLP, as applicable, or over their properties. No
material consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the
Company, RIGINC and RIGLP, as applicable, of the transactions on its
part herein contemplated or the Related Transactions, except such as
may be required under the Act or as may be required under state or
other securities or blue sky laws in connection with the purchase and
distribution of the Shares by the Underwriters. None of the Company,
RIGINC or RIGLP nor any of the Subsidiaries is now in default, and no
event has occurred which with the giving of notice or lapse of time or
both would be a default, under any material contract, agreement,
indenture, mortgage or other material undertaking to which such entity
is a party and which is material to the condition (financial or
otherwise), results of operations, business or prospects of the
Company and the Subsidiaries taken as a whole.
(vi) Each of the Company, RIGINC, RIGLP and the Subsidiaries has
been duly incorporated or organized and is validly existing as a
corporation or limited partnership in good standing under
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the laws of the jurisdiction of its incorporation or organization,
with full power and authority, corporate or otherwise, to own its
properties and conduct its business as described and contemplated in
the Registration Statement, and is duly qualified to do business as a
foreign corporation or limited partnership in good standing in all
other jurisdictions where its operations or ownership of property
requires such qualifications and where failure so to qualify would
impair title to any material properties of the Company which would
have a material adverse effect on the condition (financial or
otherwise) results of operations, business or prospects of the Company
and the Subsidiaries, taken as a whole, or expose it to liabilities
material to the Company and the Subsidiaries taken as a whole.
(vii) The Company has the authorized and outstanding capital
stock set forth in the Prospectus; the outstanding capital stock of
the Company conforms, and the Shares when issued and sold as herein
contemplated will conform, in all material respects, to all statements
in relation thereto contained in the Registration Statement and the
Prospectus and all such stock has been duly authorized and the
outstanding capital stock has been and the Shares, when issued and
delivered against payment therefor as provided herein, will be validly
issued, fully-paid and nonassessable; except as stated in the
Prospectus, the stockholders of the Company have no preemptive rights
with respect to the Shares and there are no outstanding rights,
options or warrants to acquire any securities of the Company; to the
extent that any rights, options or warrants to acquire any securities
of the Company are outstanding, except as otherwise set forth in the
Prospectus, the issuance of the Shares as described in the Prospectus
will not result in an adjustment of the exercise price or number of
shares issuable upon the exercise in respect of any such rights,
options or warrants; and, except as otherwise set forth in the
Prospectus, the Company owns (directly or indirectly) under valid
title the respective outstanding shares of capital stock of the
Subsidiaries, free and clear of any material liens, encumbrances or
claims.
(viii) Except as otherwise set forth in the Prospectus, to the
best of its knowledge, each of the Company and the Subsidiaries owns
or possesses, or can acquire on reasonable terms, adequate patents,
patent licenses, trademarks, service marks and trade names necessary
to carry on its business as presently conducted, and except as set
forth in the Prospectus, neither the Company nor any of the
Subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any patents, patent
licenses, trademarks, service marks or trade names which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, could materially and adversely affect the condition
(financial or otherwise), earnings, affairs, business or prospects of
the Company and the Subsidiaries taken as a whole.
(ix) Except as stated in the Prospectus, the Company holds in
good standing or has applied for all material licenses, permits,
authorizations, franchises, consents and orders of all federal, state,
local, and foreign governmental bodies necessary to carry on its
business as reflected or contemplated in the Prospectus; except as
stated in the Prospectus the Company has good and marketable title to
all personal property owned by it, in each case free and clear of all
liens, encumbrances and defects with such exceptions as are not
material to the Company and the Subsidiaries taken as a whole; and to
the Company's knowledge, the real property and personal property
referred to in the Prospectus as held under lease by the Company is
held by it under valid, subsisting and enforceable leases with only
such exceptions as in the aggregate are not material and do not
materially interfere with the conduct of the business of the Company
and the Subsidiaries taken as a whole as contemplated by the
Prospectus.
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(x) To the best of its knowledge, the Company is conducting and
proposes to conduct its business so as to comply in all material
respects with all applicable federal, state, local and foreign
governmental statutes, rules and regulations; and except as set forth
in the Prospectus, neither the Company nor any Subsidiary is charged
with, or, to the best of the knowledge of the Company, is under
investigation with respect to, any violation of any of such statutes,
rules or regulations or is the subject of any pending or threatened
proceeding by any governmental body or regulatory authority relating
to any such violation, except for such violations which, individually
or in the aggregate, would not materially and adversely affect the
business or financial condition of the Company and the Subsidiaries
taken as a whole.
(xi) The Company and each of the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses
and risks and in such amounts as are customary in the business in
which they are engaged; and neither the Company nor any of the
Subsidiaries has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not materially
and adversely affect the business or financial condition of the
Company and the Subsidiaries taken as a whole, except as described or
contemplated in the Prospectus.
(xii) Ernst & Young LLP, which has examined and expressed its
opinion on certain of the financial statements of the Company filed
with the Commission as a part of the Registration Statement, are, to
the Company's best knowledge, independent accountants with respect to
the Company within the meaning of the Act and the Rules and
Regulations; the financial statements, together with the related
notes, forming part of the Registration Statement and Prospectus
fairly present the financial condition of the Company and its results
of operations as of the dates and for the periods described in such
opinion in the Prospectus; and such financial statements have been
prepared in accordance with the requirements of the Commission.
(xiii) The Company and each of the Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurances that transactions are executed in accordance with
management's general or specific authorizations and are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles.
(xiv) Except as stated in the Prospectus, the Company knows of no
outstanding claims for services, either in the nature of a finder's
fee or origination fee, with respect to the transactions contemplated
hereby and the Related Transactions, and the Company agrees to
indemnify and hold the Underwriters harmless from any such claim for
any such services of such nature arising from the act of any person
other than any Underwriter.
(xv) No person holds a right to require or participate in the
registration under the Act of the Common Stock of the Company to be
effected by the Registration Statement, which right has not been
effectively waived by the holder thereof as of the date hereof.
(xvi) The Company has obtained from each of its officers,
directors and such holders of 1% or more of the shares of the
Company's Common Stock outstanding immediately prior to the
consummation of the transactions contemplated hereby as are listed on
Schedule C hereto, an executed agreement that, except as otherwise
specifically authorized in such agreement, they will not, without the
prior written
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consent of Xxxxx & Company Incorporated on behalf of the Underwriters,
sell, offer for sale, contract to sell or otherwise dispose of any
shares of the Company's Common Stock or any securities exercisable for
or convertible into its Common Stock for a period of 240 days from the
date of the final Prospectus, subject to certain exceptions.
3. PURCHASE, SALE AND DELIVERY OF SHARES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, (i) the Company agrees to sell to each
Underwriter and each Underwriter agrees, severally and not jointly, to purchase
from the Company at a purchase price of $______ [INSERT PRICE AFTER
UNDERWRITERS' FEES] per Share, the aggregate number of Purchased Shares set
forth opposite the name of such Underwriter in Schedule A hereto.
The Company will deliver the Purchased Shares to you for the
accounts of the several Underwriters at the office of Xxxxx & Company
Incorporated, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, against payment of the
purchase price therefor by certified or official bank check or checks in New
York Clearing House funds, payable to the order of Realty Information Group,
Inc. at 10:00 A.M., New York Time, on ____________________, 1998, or at such
other time and date not later than five full business days thereafter as you and
the Company may determine, such time and date of delivery and payment being
herein called the "First Closing Date". The certificates for the Shares to be so
delivered will be made available to you at such office for checking at least one
full business day prior to such Closing Date and will be in such names and
denominations as you may request not less than two full business days prior to
such Closing Date.
On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company grants to the Underwriters an option to purchase up to 250,000 Option
Shares at the same price per share as the Underwriters shall pay for the
Purchased Shares. Such option may be exercised only to cover over-allotments
arising in connection with the sale of Purchased Shares by the Underwriters,
such exercise to be upon written notice by you to the Company within 45 days of
the date hereof setting forth the number of Option Shares as to which the
Underwriters are exercising the option, the denominations and names in which
certificates for such Shares should be registered and the time and place at
which such certificates are to be delivered. Such time and place (unless such
time is the First Closing Date), herein referred to as the "Second Closing
Date", shall be determined by you but shall not be earlier than the First
Closing Date, nor earlier than three full business days or later than ten full
business days after the exercise of such option. The Company will deliver Option
Shares to you for the accounts of the several Underwriters against payment of
the purchase price therefor by certified or official bank check or checks in New
York Clearing House funds payable to the order of the Company. The number of
Option Shares to be purchased by each Underwriter shall be in the same
proportion to the aggregate number of Option Shares purchased as the number of
Purchased Shares set forth opposite the name of such Underwriter in Schedule A
hereto bears to 2,500,000.
It is understood that you, individually and not as the
Representatives of the several Underwriters, may (but shall not be obligated to)
make payment on behalf of any Underwriter or Underwriters for Shares to be
purchased by such Underwriter or Underwriters. Any such payment by you shall not
relieve any such Underwriter or Underwriters of any of its or their obligations
hereunder.
After the Registration Statement becomes effective, the several
Underwriters propose to offer the Shares to the public as set forth in the
Prospectus.
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4. COVENANTS OF THE COMPANY. 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 subsequent amendment thereto to become effective
as promptly as possible; it will notify you, promptly after it shall receive
notice thereof, of the time when the Registration Statement or any subsequent
amendment to the Registration Statement has become effective or any supplement
to the Prospectus has been filed; it will notify you promptly of any request by
the Commission for the amending or supplementing of the Registration Statement
or Prospectus or for additional information; it will prepare and file with the
Commission, promptly upon your request, any amendments or supplements to the
Registration Statement or Prospectus which, in your reasonable opinion, may be
necessary or advisable in connection with the distribution of the Shares by the
Underwriters; it will promptly prepare and file with the Commission, and
promptly notify you of the filing of, any amendments or supplements to the
Registration Statement or Prospectus which may be necessary to correct any
statements or omissions, 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 or any other prospectus relating to the
Shares as then in effect would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein not
misleading; in case any Underwriter is required to deliver a prospectus after
the nine-month period referred to in Section 10(a)(3) of the Act in connection
with sales of the Shares, it will prepare promptly upon request, but at the
expense of such Underwriter, such amendment or amendments to the Registration
Statement and such prospectus or prospectuses as may be necessary in such
Underwriter's reasonable opinion, to permit the sale of shares in the manner
determined by such Underwriter in compliance with the requirements of Section
10(a)(3) of the Act; and it will file no amendment or supplement to the
Registration Statement or Prospectus that shall not previously have been
submitted to you in writing a reasonable time prior to the proposed filing
thereof or to which you shall reasonably object in writing.
(b) The Company will advise you, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or of
any order suspending trading in the Shares or other of the Company's securities
or of the initiation or threat of any proceeding for that purpose; and it will
use promptly its best efforts to prevent the issuance of any stop order or to
obtain its withdrawal if such a stop order should be issued.
(c) The Company will use its best efforts to qualify the
Shares for sale under the blue sky or securities laws of such jurisdictions as
you may reasonably designate and to continue such qualifications in effect for
so long as may be required for purposes of the distribution of the Shares,
except that the Company shall not be required in connection therewith or as a
condition thereof to qualify as a foreign corporation or to execute a general
consent to service of process in any state.
(d) The Company will furnish to you, as soon as available,
copies of the Registration Statement (at least two of which will be signed and
will include all exhibits), each Preliminary Prospectus, the Prospectus, and any
amendments or supplements to such documents, including any prospectus prepared
to permit compliance with Section 10(a)(3) of the Act, all in such quantities as
you may from time to time reasonably request.
(e) The Company will make generally available to its
securityholders as soon as practicable, a financial statement (which will be in
reasonable detail but need not be audited) covering a 12-month period
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beginning after the effective date of the Registration Statement which shall
satisfy the provisions of Section 11(a) of the Act.
(f) The Company agrees, during each fiscal year for a period
of five years from the date hereof, to furnish to its stockholders as promptly
as may be practicable an annual report (including financial statements audited
by independent public accountants) and to furnish quarterly financial statements
(which need not be audited and which may be condensed or summarized) for each of
the first three quarters of each fiscal year, statements of operations and
surplus of the Company for such quarter in reasonable detail and certified by
the Company's principal financial or accounting officer, or the Company's
quarterly report on Form 10-Q; (i) as soon as practicable after the end of each
fiscal year, financial statements of the Company as at the end of such fiscal
year, including statements of operations, retained earnings and changes in
financial position of the Company for such fiscal year, all in reasonable detail
and accompanied by a copy of the report thereon of independent public
accountants or the Company's annual report on Form 10-K; and (ii) as soon as
they are available, copies of all reports and financial statements furnished to
or filed with the Commission. During such period, if and so long as the Company
shall have active subsidiaries, the foregoing financial statements shall be on a
combined or consolidated basis to the extent that the accounts of the Company
and its subsidiaries are combined or consolidated.
(g) The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements, and expenses of the Company's counsel and accountants
in connection with the registration of the Shares under the Act; (ii) all other
expenses in connection with the preparation, printing, and filing of the
Registration Statement, each Preliminary Prospectus, and the Prospectus and
amendments and supplements thereto, and the mailing and delivering of copies
thereof to the Underwriters and dealers; (iii) the cost of printing or
duplicating this Agreement, the Selected Dealer Agreement, the Blue Sky
Memorandum, and any other documents in connection with the offering, purchase,
sale and delivery of the Shares; (iv) all costs and expenses in connection with
the issuance and delivery of the Shares hereunder to the Underwriters, including
related transfer taxes, if any; (v) all expenses in connection with the
qualification of the Shares for offering and sale under the securities laws of
various jurisdictions, including the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky Survey; (vi) the filing fees incident to securing
any required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Shares; (vii) the costs of preparing stock
certificates; (viii) the cost and charges of any transfer agent or registrar;
and (ix) all other costs and expenses of the Company incident to the performance
of its obligations hereunder which are not otherwise specifically provided for
in this Section 4. The Company shall reimburse the Underwriters, upon request
from time to time, for certain expenses as provided in the letter agreement
dated January 7, 1998 between the Company and Xxxxx. If the Underwriters are
unable or unwilling to proceed with the offering on the terms and conditions set
forth in this Agreement for any reason (except as set forth in the proviso
below), the Underwriters shall bear all of their own out-of-pocket expenses,
including legal fees and disbursements and travel, roadshow and syndicate
expenses; provided, however, that if the Underwriters' decision not to proceed
with the offering on the terms and conditions set forth in this Agreement is
based upon any of the reasons specified in Section 10(a)(1), (excluding
termination for reasons that are beyond the reasonable control of the Company)
the Company shall be required to reimburse the Underwriters for their
out-of-pocket expenses as specified in the preceding sentence.
(h) The Company agrees that it will not, for a period of 240
days after the date of the final Prospectus, without the prior written consent
of Xxxxx & Company Incorporated on behalf of the Underwriters, sell, offer for
sale, contract to sell or otherwise dispose of any shares of its Common Stock or
any securities exercisable for or
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convertible into shares of its Common Stock, other than (i) shares issuable
pursuant to currently outstanding rights, options and warrants, (ii) the grant
of options or shares under the Company's Stock Incentive Plan; or (iii) in
connection with the acquisition of work, products or businesses, provided that
in the case of this clause (iii) none of such shares shall be publicly
realizable during such 240 day period, subject to certain exceptions. In
addition, to the extent not obtained prior to the date hereof, the Company also
agrees to obtain the written agreement of each officer, director and holder of
1% or more of the shares of the Company's Common Stock as listed on Schedule C
hereto that such person will not, without such prior written consent, sell,
offer for sale, contract to sell or otherwise dispose of any of such Common
Stock or any securities exercisable for or convertible into Common Stock held by
such holder for a period of 240 days after the date of the final Prospectus,
except as may otherwise be specifically allowed in the agreements referenced in
paragraph 2(a)(xvi) above.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the several Underwriters to purchase and pay for the Purchased Shares on the
First Closing Date and the Option Shares on the Second Closing Date, as provided
herein shall be subject to the accuracy, as of the date hereof and such Closing
Date (as if made on and as of such Closing Date), of the representations and
warranties of the Company herein, to the performance by the Company of its
obligations hereunder, and to the following additional conditions:
(a) The Registration Statement shall have become effective
not later than 5:30 P.M., New York City Time, on the date of this Agreement, or
such later date as shall be consented to in writing by you; if required, the
Prospectus and any amendment or supplement thereto shall have been filed with
the Commission in the manner and within the time period required by Rule 424(b)
under the Act; and no stop order suspending the effectiveness thereof shall have
been issued and no proceedings for that purpose shall have been initiated or, to
the knowledge of the Company or any Underwriter, threatened by the Commission,
and any request of the Commission for additional information (to be included in
the Registration Statement or the Prospectus or otherwise) shall have been
complied with to your satisfaction.
(b) Prior to such Closing Date, except as contemplated in the
Prospectus, there shall not have been any change in the capital shares, nor the
issuance of any material rights, options, or warrants to purchase any capital
shares, nor any material increase or decrease in any long-term debt of the
Company or any of the Subsidiaries or any material adverse change in the
condition (financial or otherwise), results of operations, business or prospects
of the Company or any of the Subsidiaries which in your reasonable judgment
renders it inadvisable to proceed with the offering and sale of the Shares.
(c) You shall have received the opinion of Xxxxxx, Xxxxxx &
Xxxxxxxxx, counsel for the Company, in form and substance reasonably
satisfactory to you and in substantially the form attached hereto as Schedule D
dated such Closing Date, to the effect that:
[(i) each of the Company, its Subsidiaries, RIGINC and RIGLP
has been duly incorporated or organized and is validly existing as a
corporation or limited partnership, as the case may be, in good standing
under the laws of its jurisdiction of incorporation with full corporate
power and authority to own its properties and to conduct its business as
described in the Registration Statement and is duly qualified to do
business as a foreign corporation or limited partnership, as the case may
be, in each state or jurisdiction where its operations and the ownership of
its properties requires such qualification, except with respect to
qualification as a foreign corporation or limited partnership, as the case
may be, in such jurisdictions in which the failure to
-9-
so qualify has not had and will not have a material adverse effect on the
business of the Company and the Subsidiaries taken as a whole;
(ii) the Company has authorized capital stock as set
forth in the Prospectus; all shares of Common Stock, including the Shares,
conform as to legal matters in all material respects to the appropriate
descriptions thereof under the heading "Description of Capital Stock" in
the Prospectus; all outstanding shares of Company capital stock have been
duly authorized and are validly issued, fully paid and non-assessable; and
the issuance of the Shares has been duly authorized and, when issued and
delivered in accordance with this Agreement, the Shares will be validly
issued, fully paid and non-assessable; and, except as described in the
Prospectus, the issuance of the Shares as described in the Prospectus will
not result in any adjustment of the exercise price or number of shares
issuable upon exercise in respect of any outstanding options or warrants of
the Company; and, except as otherwise set forth in the Registration
Statement, the Company owns (directly or indirectly) all of the respective
outstanding shares of capital stock of each of the Subsidiaries, free and
clear of any material liens, encumbrances or claims;
(iii) each of this Agreement and the RIG Contribution
Agreement has been duly authorized, executed and delivered by the Company,
RIGINC and RIGLP, as applicable, and constitutes a valid and binding
agreement of the Company, enforceable in accordance with its terms, except
that (1) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights, (2) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought, and (3) rights to indemnity or contribution
hereunder may be limited by federal or state securities laws; the sale of
the Shares under this Agreement and the consummation of the transactions
herein contemplated and the Related Transactions do not result in a breach
or violation of any terms or provisions of, or constitute a default under,
any presently existing statute, or any indenture, mortgage, deed of trust,
note agreement or other agreement or instrument to which the Company,
RIGINC or RIGLP, as applicable, is a party or by which it or its properties
are bound or affected, or to which any of the material property or assets
of the Company, RIGINC or RIGLP, as applicable, or the Subsidiaries is
subject, the Company's or RIGINC's certificate of incorporation or by-laws,
RIGLP's organizational documents, or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company,
RIGINC, RIGLP or the Subsidiaries or over their respective properties;
(iv) no consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation by
the Company, RIGINC and RIGLP, as applicable, of the transactions
contemplated by this Agreement or the Related Transactions, except such as
may be required under the Act or as may be required under state securities
or blue sky laws in connection with the purchase and distribution of the
Shares by the Underwriters;
(v) the Registration Statement has become effective under
the Act and no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act;
(vi) except as stated in the Prospectus, the Company and
the Subsidiaries hold all material licenses, permits, authorizations,
franchises, consents and orders, in each case valid and in good
-10-
standing, of Federal, State or local, and foreign governmental bodies
necessary to carry on their respective businesses as reflected in the
Registration Statement, except where the failure to hold any such license,
permit, authorization, franchise, consent or order, would not have a
material adverse effect on the business or operations of the Company and
the Subsidiaries, taken as a whole;
(vii) the agreements or documents to which the Company,
RIGINC, RIGLP or the Subsidiaries are a party which are summarized under
the headings "Management - Employment Agreements," "Management - Employee
Benefit Plans," "Certain Transactions" and "Description of Capital Stock -
Registration Rights" in the Prospectus conform in all material respects to
such summaries;
(viii) there are no legal or governmental proceedings
pending or threatened to which the Company RIGINC, RIGLP or any Subsidiary
is a party or to which any properties of the Company, RIGINC, RIGLP or the
Subsidiaries are subject which is required to be described in the
Registration Statement or the Prospectus and is not so described;
(ix) the Registration Statement and the Prospectus, and
each amendment or supplement thereto, as of their respective effective or
issue dates, comply as to form in all material respects with the
requirements of the Act and the Rules and Regulations (except that such
counsel need express no opinion as to the financial statements, notes to
financial statements, related schedules or other financial or statistical
data contained in the Registration Statement or the Prospectus);
(x) all contracts and documents pertaining to the
Company, RIGINC, RIGLP required to be filed as Exhibits to the Registration
Statement have been filed as required or have been appropriately
incorporated by reference and all contracts and documents required to be
described in the Prospectus have been accurately described therein in all
material respects;
(xi) Such counsel shall also state that it has
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants for the
Company and the representatives of the Underwriters, at which the contents
of the Registration Statement and the Prospectus and related matters were
discussed and, although such counsel is not passing upon and does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus, on
the basis of the foregoing (relying as to materiality to a large extent
upon the opinions of officers and other representatives of the Company), no
facts have come to such counsel's attention which lead such counsel to
believe that the Registration Statement (except with respect to the
financial statements and schedules thereto and other financial or
statistical data, as to which such counsel need not make any statement) at
the time it became effective or at the Closing Date contained any untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus (except with respect to the financial
statements and schedules thereto and other financial or other statistical
data, as to which such counsel need not make any statement) on the date
thereof or on the Closing Date contained any untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances in which they were
made, not misleading.
-11-
In rendering the foregoing opinions, such counsel may
rely as to factual matters on certificates of officers and representatives of
the Company or any Subsidiary and of public officials, and will not be required
to independently verify the accuracy or completeness of information or documents
furnished to it in respect to the Registration Statement or the Prospectus. To
the extent that such counsel's opinion relates to the laws of jurisdictions
other than Delaware, such counsel shall be permitted to rely on the opinion of
local counsel reasonably satisfactory to counsel for the several Underwriters.]
(d) You shall have received from Xxxxxx & Carnelutti, A
Professional Corporation, counsel for the several Underwriters, an opinion or
opinions, dated such Closing Date, in form and substance satisfactory to you,
with respect to such legal matters relating to this Agreement and the
transactions contemplated hereby as you may reasonably require, and the Company
shall have furnished to such counsel such documents as they may have requested
for the purpose of enabling them to pass upon such matters.
(e) You shall have received, at the time of execution of
this Agreement and on such Closing Date from Ernst & Young LLP, independent
public accountants, a letter or letters, dated the date of delivery thereof,
substantially in the form and substance heretofore approved by you.
(f) You shall have received a certificate, dated such
Closing Date, of each of the President and Chief Executive Officer and the Chief
Financial Officer of the Company, delivered on behalf of the Company, to the
effect that:
(i) the representations and warranties of the Company
in this Agreement and the RIG Contribution Agreement are true and
correct in all material respects as if made on and as of such Closing
Date; and the Company has complied in all material respects with all
such agreements and satisfied in all material respects all the
conditions on its part to be performed or satisfied at or prior to
such Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued, and, to their knowledge,
no proceedings for that purpose have been instituted or are
contemplated by the Commission; and
(iii) except as contemplated in the Prospectus, none of
the Company, RIGINC, RIGLP or any Subsidiary has incurred any direct or, to the
Company's knowledge, contingent material liabilities or obligations since the
date of the financial statements included in the Prospectus, other than
liabilities incurred in the ordinary course of business, or entered into any
material transactions or contracts not in the ordinary course of business, and
there has not been any material change in its capital shares, nor the issuance
of any rights, options, or warrants to purchase any capital shares, nor any
material increase or decrease in any thereof or in any long-term debt or any
material adverse change in the condition (financial or otherwise) results of
operations, business or prospects of the Company, RIGINC, RIGLP and the
Subsidiaries taken as a whole.
(g) The Company shall have furnished to you such
certificates, in addition to those specifically mentioned herein, as you may
have reasonably requested, as to the accuracy and completeness at such Closing
Date of any statement in the Registration Statement or Prospectus, as to the
accuracy at such Closing Date of the representations and warranties of the
Company herein, as to the performance by the Company of its obligations
hereunder, and as to the fulfillment of the conditions concurrent and precedent
to the obligations of the Underwriters hereunder.
-12-
(h)The Company shall have furnished to you the agreements
described in Section 2(a)(xvi) of this Agreement.
6. INDEMNIFICATION. (a) The Company will indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such controlling
person may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter and each such controlling person for any
legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending against any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in the
Registration Statement, such Preliminary Prospectus, the Prospectus or such
amendment or such supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through you specifically
for use therein; and provided further, that the foregoing indemnity with respect
to Preliminary Prospectuses shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter) if such untrue
statement or omission or alleged untrue statement or omission made in any
Preliminary Prospectus is eliminated or remedied in the Prospectus and a copy of
the Prospectus has not been furnished to the person asserting any such losses,
claims, damages, or liabilities at or prior to the written confirmation of the
sale of such Shares to such person. The indemnity agreement of the Company
contained in this paragraph (a) and the representations and warranties of the
Company contained in Section 2 hereof shall remain operative and in full force
and effect regardless of any investigation made by or on behalf of any
indemnified party and shall survive the delivery of and payment for the Shares.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of the Act, against any losses, claims,
damages or liabilities, joint or several, to which the Company or any such
director, officer or controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
any Preliminary Prospectus, the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through you specifically
for use therein; and will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person in
connection with investigating or defending against any such loss, claim, damage,
liability or action. Such indemnity obligation will be in addition to any
liability which such Underwriter may otherwise have. The indemnity agreement of
each Underwriter contained in this paragraph (b) shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any indemnified party and shall survive the delivery of and payment for the
Shares.
-13-
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section, notify the indemnifying party of the commencement thereof.
Indemnification shall not be available to any party who shall fail so to give
notice, if the party to whom notice was required to be given was unaware of the
action, suit, investigation, inquiry or proceeding to which the notice would
have related, to the extent that such party was prejudiced by the failure to
give notice; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
otherwise than under this Section. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel chosen by
such indemnifying party which is reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will not
be liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that (i) if the indemnified party reasonably determines that there may be a
conflict between the positions of the indemnifying party and of the indemnified
party in conducting the defense of such action, suit, investigation, inquiry or
proceeding, then counsel for the indemnified party shall be entitled to conduct
the defense to the extent reasonably determined by such counsel to be necessary
to protect the interests of the indemnified party and (ii) in any event, the
indemnified party shall be entitled to have counsel chosen by such indemnified
party participate in, but not conduct, the defense at the sole expense of the
indemnified party. No indemnifying party shall be liable to any indemnified
party in respect to any settlement effected without its prior written consent,
which consent shall not be unreasonably withheld. In addition, the indemnifying
party will not, without the prior written consent of an indemnified party,
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought hereunder if such indemnified party is a party to such claim,
action or suit or proceeding), unless such settlement, compromise or consent
includes an unconditional release of such indemnified party from all liability
arising out of such claim, action, suit or proceeding.
7. CONTRIBUTION. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 6(a) or 6(b)
hereof is for any reason, other than the first proviso to Section 6(a), held to
be unavailable, the Company and the Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities of the nature contemplated by
such indemnification provisions (including any investigation, legal and other
expenses incurred in connection with, any amount paid in settlement of, any
action, suit or proceeding or any claims asserted, but after deducting any
contribution received by the Company from persons other than the Underwriters,
such as persons who control the Company within the meaning of Section 15 of the
Act, officers of the Company who signed the Registration Statement and directors
of the Company, who may also be liable for contribution) to which the Company
and one or more of the Underwriters may be subject, in such proportions so that
the Underwriters are responsible for that portion in each case represented by
the percentage that the respective underwriting discounts appearing on the cover
page of the Prospectus bear to the public offering price of the Shares, and the
Company are responsible for the remaining portion in such proportion as the
Shares offered by the Company bear to the total number of Shares; provided,
however, that (i) except as may be provided in its Master Agreement Among
Underwriters provided to Xxxxx & Company Incorporated, in no case shall any
Underwriter be responsible for any amount in excess of the underwriting discount
applicable to the Shares purchased by such Underwriter hereunder, and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7,
each person, if any, who controls an
-14-
Underwriter within the meaning of Section 15 of the Act shall have the same
rights to contribution as such Underwriter, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same right to contribution as the
Company, subject in each case to clauses (i) and (ii) of this Section 7. 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 7, 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 other
obligation it or they may have hereunder or otherwise than under this Section 7.
No party shall be liable for contribution with respect to any action or claim
settled without its consent, which consent shall not be unreasonably withheld.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements of the Company and the Underwriters
herein or in certificates delivered pursuant hereto 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, the Company, or any of its officers,
directors, or controlling persons, and shall survive delivery of the Shares to
the several Underwriters hereunder.
9. SUBSTITUTION OF UNDERWRITERS. If any Underwriter or
Underwriters shall fail to take up and pay for the number of Shares to be
purchased by such Underwriter or Underwriters hereunder upon tender of such
Shares in accordance with the terms hereof, and if the aggregate number of
Shares which such defaulting Underwriter or Underwriters so agreed but failed to
purchase does not exceed 10% of the Shares, the remaining Underwriters shall be
obligated severally in proportion to their respective commitments hereunder to
take up and pay for the Shares of such defaulting Underwriter or Underwriters.
If one or more of the Underwriters shall fail or refuse (other than for a reason
sufficient to justify the termination of this Agreement) to purchase on any
Closing Date the aggregate number of Shares agreed to be purchased by such
Underwriter or Underwriters and the aggregate number of Shares agreed to be
purchased by such Underwriter or Underwriters shall exceed 10% of the aggregate
number of Shares to be sold on any Closing Date hereunder by the Company to the
Underwriters, then the other Underwriters shall have the right to purchase or
procure one or more other underwriters to purchase, in such proportions as they
may agree upon and upon the terms herein set forth, the Shares which such
defaulting Underwriter or Underwriters agreed to purchase, and this Agreement
shall be carried out accordingly. If such other Underwriters do not exercise
such right within thirty-six hours after receiving notice of any such default,
which notice the Representatives shall have also promptly delivered to the
Company, then the Company shall have the right to procure another party or
parties reasonably satisfactory to the Representatives to purchase or agree to
purchase such Shares on the terms herein set forth. If the Company is unable to
procure another such party, the Company may notify the Representatives that the
non-defaulting Underwriters are, by the giving of such notice, released from
their obligations to purchase such number of Shares being sold hereunder by the
Company as are indicated in such notice as, when subtracted from the total
number of Shares originally agreed to be purchased by all of the Underwriters
hereunder, shall leave a reduced number of Shares to be purchased by the
non-defaulting Underwriters not in excess of 110% of the aggregate number of
Shares originally contracted to be purchased hereunder by the non-defaulting
Underwriters, and each of them, in which event such non-defaulting Underwriters
shall purchase such reduced number of Shares. In any such case, either the
Representatives or the Company shall have the right to postpone any Closing Date
for a period of not more than seven business days in order that necessary
changes and arrangements may be effected by the Representatives and the Company.
If neither the non-defaulting Underwriters nor the Company shall make
arrangements within the period stated for the purchase of the Shares which such
defaulting Underwriter or Underwriters agreed to purchase, including such
arrangements for the purchase of a reduced number of Shares as are
-15-
provided for in this Section 9, then this Agreement shall terminate without
liability on the part of any non-defaulting Underwriters to the Company and
without liability on the part of the Company to the Underwriters.
In the event of any termination of this Agreement pursuant to
the preceding paragraph of this Section, the Company shall not be under any
liability to any Underwriter (except as provided in Section 4(g) and 6 hereof)
nor shall any Underwriter (other than an Underwriter who shall have failed,
otherwise than for some reason permitted under this Agreement, to purchase the
number of Shares to be purchased by such Underwriter hereunder, which
Underwriter shall remain liable to the Company and the other Underwriters for
damages resulting from such default) be under any liability to the Company
(except as provided in Section 6 hereof).
The term "Underwriter" in this Agreement shall include any
person substituted for an Underwriter under this Section 9.
10. EFFECTIVE DATE OF THIS AGREEMENT AND TERMINATION. This
Agreement shall become effective at such time after the declaration by the
Commission of the effectiveness of the Registration Statement as you in your
discretion shall first release the Shares for sale to the public. For the
purposes of this Section the Shares shall be deemed to have been released for
sale to the public upon release by you for publication of a newspaper
advertisement relating to the Shares or upon release by you of letters or
telegrams offering the Shares for sale to securities dealers, whichever shall
first occur. By giving notice as hereinafter specified before the time this
Agreement becomes effective, you, as Representatives of the several
Underwriters, or the Company may prevent this Agreement from becoming effective
without liability on the part of the Company to any Underwriter or of any
Underwriter to the Company, other than as provided in Sections 4(g) and 6
hereof.
(a) You, as Representatives of the several Underwriters,
shall have the right to terminate this Agreement by giving notice as hereinafter
specified at any time at or prior to the First Closing Date if (i) the Company
shall have failed, refused or been unable, at or prior to the First Closing
Date, to perform any material agreement on its part to be performed, or because
any other material condition of the Underwriters' obligations hereunder required
to be fulfilled by the Company is not fulfilled; (ii) trading on the New York
Stock Exchange 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 Stock Exchange by the New York Stock
Exchange or by order of the Commission or any other governmental authority
having jurisdiction, since the execution of this Agreement; (iii) a banking
moratorium shall have been declared by Federal or New York authorities since the
execution of this Agreement; or (iv) an outbreak of major hostilities or other
national calamity shall have occurred. Any such termination shall be without
liability on the part of the Company to any Underwriter or of any Underwriter to
the Company other than as provided in Sections 4(g) and 6 hereof.
(b) If you elect to prevent this Agreement from
becoming effective or to terminate this Agreement as provided in this Section,
the Company shall be notified promptly by you by telephone or telegram,
confirmed by letter. If the Company shall elect to prevent this Agreement from
becoming effective, you shall be notified promptly by the Company by telephone
or telegram, confirmed by letter.
11. NOTICES. All notices or communications hereunder, except
as herein otherwise specifically provided, shall be in writing and if sent to
you shall be mailed, delivered or telecopied and confirmed to you c/o Allen &
Company Incorporated, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, with copy to
Xxxxxx & Carnelutti, a
-16-
Professional Corporation, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx X. Xxxxxx, Esq., or if sent to the Company shall be mailed, delivered or
telecopied and confirmed to the Company at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx 00000, with a copy to Xxxxxx, Xxxxxx & Xxxxxxxxx, 0000 X Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000-0000, Attention: Xxxxxxx X. Xxxx, Esq. Notice to any
Underwriter pursuant to Section 6 shall be mailed, delivered or telecopied and
confirmed to such Underwriter's address as set forth in its Master Agreement
Among Underwriters furnished to Xxxxx & Company Incorporated.
12. PARTIES. This Agreement shall inure to the benefit of and
be binding upon the several Underwriters, the Company and their respective
successors and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person or corporation, other than the
parties hereto and their respective successors and assigns and the controlling
persons, officers and directors referred to in Section 6, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained; this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of the parties
hereto and their respective successors and assigns and said controlling persons
and said officers and directors, and for the benefit of no other person or
corporation. No purchaser of any of the Shares from any Underwriter shall be
construed a successor or assign merely by reason of such purchase.
In all dealings with the Company under this Agreement, you
shall be and are authorized to act on behalf of each of the several
Underwriters, and the Company shall be entitled to act and rely upon any
statement request, notice or agreement on behalf of each of the several
Underwriters if the same shall have been made or given in writing by you.
13. APPLICABLE LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York
applicable to agreements made, and to be fully performed, therein.
-17-
If the foregoing correctly sets forth the understanding
between the Company and the several Underwriters, please so indicate in the
space provided below for that purpose whereupon this letter shall constitute a
binding agreement between the Company and the several Underwriters.
Very truly yours,
REALTY INFORMATION GROUP, INC.
By:_____________________________
Xxxxxx X. Xxxxxxxx, President
Accepted as of the date
first above written:
XXXXX & COMPANY INCORPORATED
XXXXXXX & COMPANY, INC.
By: Xxxxx & Company Incorporated
By: ______________________________
Name:
Title:
On behalf of each of the several
Underwriters named in Schedule A hereto.
-18-
SCHEDULE A
NUMBER OF
PURCHASED SHARES
-------------------
Xxxxx & Company Incorporated . . . . .
Xxxxxxx & Company, Inc. . . . . . . .
------
======
Total . . . . . . . . . . . .
SCHEDULE B
SUBSIDIARIES OF THE COMPANY
SCHEDULE C
LOCKED UP HOLDERS
SCHEDULE D
FORM OF COMPANY COUNSEL OPINION
2,500,000 SHARES
REALTY INFORMATION GROUP, INC.
COMMON STOCK
-----------------------
SELECTED DEALER AGREEMENT
_________________, 1998
Dear Sirs:
1. PURCHASE OF SECURITIES BY THE SEVERAL UNDERWRITERS. The
several Underwriters named in the enclosed Prospectus, on whose behalf we are
acting as Representatives, have severally agreed to purchase from Realty
Information Group, Inc. (the "Company") an offering of 2,500,000 Shares of the
Company's Common Stock (the "Shares"), as set forth in the Prospectus and
subject to the terms of the Underwriting Agreement between the several
Underwriters and the Company. The Shares are described in the Prospectus,
additional copies of which will be supplied in reasonable quantities upon
request to us.
2. OFFERING TO SELECTED DEALERS. One or more of the several
Underwriters acting through us are severally offering a portion of the Shares to
certain dealers ("Selected Dealers") as principals, subject to the terms and
conditions of their purchase, to the terms and conditions hereof, and to the
modification or cancellation of the offering without notice, at the public
offering price set forth in the Prospectus, less a concession not in excess of
$____ per Share. Shares purchased by the several Underwriters, and not sold to
the Selected Dealers as aforesaid, may be sold by the several Underwriters. Any
of the several Underwriters may be included among the Selected Dealers.
The offering of a portion of the Shares to Selected Dealers
may be made on the basis of reservations or allotments against subscription. We
are advising you by telegram of the method and terms of the offering. Acceptance
of any reserved Shares received by us at the office of Xxxxx & Company
Incorporated, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, after the time
specified therefor in the telegrams, and any subscriptions for additional
Shares, will be subject to prior sale and allotment. Subscription books may be
closed by us at any time without notice, and the right is reserved to reject any
subscriptions in whole or in part.
3. OFFERING TO PUBLIC BY SELECTED DEALERS. Upon receipt of
the aforementioned telegram, the Shares purchased by you hereunder may be
re-offered to the public in conformity with the terms of offering set forth in
the Prospectus. You may, in accordance with the rules of the National
Association of Securities Dealers, Inc., reallow a concession of $_____ per
Share sold by you to any other dealer or broker who is a member of the National
Association of Securities Dealers, Inc., provided such discount is retained.
Neither you nor any other person is or has been authorized by
the Company, any of the several Underwriters or us to give information or make
any representations in connection with the sale of the Shares other than those
contained in the Prospectus.
In the event that during the term of this agreement we, as
Representatives for the account of the several Underwriters, shall purchase or
contract to purchase, at or below the original public offering price set forth
in the Prospectus, any of the Shares purchased by you hereunder (which Shares
theretofore were not effectively placed for investment by you, including Shares
represented by transfers), we may, at our election, either (a) require you to
repurchase such Shares at a price equal to the total cost of such Shares
purchased by us, including brokerage commissions, if any, and transfer taxes on
the redelivery, or (b) charge you with and collect from you an amount equal to
the selling concession with respect to the Shares so purchased by us.
4. PAYMENT AND DELIVERY. Payment for the Shares which you
have agreed to purchase hereunder shall be made by you on _________, 1998, or
such later date as we may advise you, at 9:00 a.m., New York Time, at Xxxxx &
Company Incorporated's office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, by
certified or bank cashier's check payable in New York Clearing House funds to
the order of Xxxxx & Company Incorporated, against delivery of such Shares.
Delivery instructions must be in our hands at said address at such time as we
request.
Additional Shares confirmed to you shall be delivered on such
date or dates as we shall advise you.
5. BLUE SKY MATTERS. Neither we nor any of the several
Underwriters shall have any obligation or responsibility with respect to the
right of any dealer to sell the Shares in any jurisdiction, notwithstanding any
information which may be furnished as to the states under the securities laws of
which it is believed the Shares may be sold.
6. TERMINATION. This agreement shall terminate 20 full days
after the First Closing Date (as defined in the Underwriting Agreement) but may
be extended for a period or periods not exceeding in the aggregate 20 days as we
may determine. We may terminate this Agreement at any time without prior notice.
Notwithstanding the termination of this agreement, you shall remain liable for
your portion of any transfer tax or other liability which may be asserted or
assessed against us or any one or more of the several Underwriters or Selected
Dealers based upon the claim that the Selected Dealers or any of them constitute
a partnership, an association, an unincorporated business or other separate
entity.
7. OBLIGATIONS OF SELECTED DEALERS. Your acceptance hereof
will constitute an obligation on your part to purchase, upon the terms and
conditions hereof, the aggregate amount of the Shares reserved for and accepted
by you and to perform and observe all the terms and conditions hereof.
You are not authorized to act as agent for any of the several
Underwriters in offering Shares to the public or otherwise. Nothing contained
herein shall constitute the Selected Dealers an association, or partners with
the several Underwriters, with us, or with each other.
8. POSITION OF THE REPRESENTATIVES. We shall have full
authority to take such action as we may deem advisable in respect of all matters
pertaining to the offering or arising hereunder, but shall act only as
Representatives of the several Underwriters. Neither we nor any of the several
Underwriters shall be under any liability to you, except for our own want of
good faith, obligations assumed in this agreement, or any liabilities arising
under the Securities Act of 1933. No obligation not expressly assumed by us in
this agreement shall be implied hereby or inferred herefrom.
-2-
9. NOTICES. All communications from you should be addressed
to us, c/o Allen & Company Incorporated, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000. Any notice from us to you shall be deemed to have been duly given if
mailed or telegraphed to you at the address to which this letter is mailed.
-3-
Please confirm the foregoing by signing the duplicate copy of
this agreement enclosed herewith and returning it to us at the address in
Section 9 above.
Very truly yours,
XXXXX & COMPANY INCORPORATED
XXXXXXX & COMPANY, INC.
By: Xxxxx & Company Incorporated
By: ______________________________
Name:
Title:
-4-
XXXXX & COMPANY INCORPORATED
As Representatives of the several Underwriters
c/o Allen & Company Incorporated
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Sirs:
We hereby confirm our agreement to purchase __________ Shares
of Realty Information Group, Inc. (the "Shares"), subject to your acceptance or
rejection in whole or in part in the case of a subscription subject to allotment
or in excess of any reservation, and subject to all the other terms and
conditions stated in the foregoing letter.
We hereby acknowledge receipt of the prospectus relating to
the above described Shares (the "Prospectus") and we further state that in
purchasing the Shares confirmed to us we have relied upon such Prospectus and on
no other statements whatsoever, written or oral.
We hereby represent that we are a member in good standing of
the National Association of Securities Dealers, Inc. ("NASD") and agree to
comply with the provisions of Article III, Section 24 of the NASD's Rules of
Fair Practice (the "NASD Rules"), or, if we are not such a member, we are a
foreign dealer or institution that is not registered under Section 15(b) of the
Securities Exchange Act of 1934 and that hereby agrees (i) to make no sales
within the United States, its territories or its possessions or to persons who
are citizens thereof or residents therein, (ii) if the offering of the Shares is
one within the scope of the NASD's Interpretation with Respect to Free-Riding
and Withholding, not to make other sales of Shares to persons enumerated in
paragraphs "1" through "5" of such Interpretation or in a manner inconsistent
with paragraph "6" thereof and (iii) to comply with the provisions of Rules
2730, 2740, 2420 and 2750 of the NASD Conduct Rules.
Name of Selected Dealer
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(Authorized Signature)
Dated: ______________, 1998
