SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
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Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 13, 1999
RECKSON SERVICE INDUSTRIES, INC.
(Exact name of Registrant as specified in its Charter)
Delaware
(State of Incorporation)
0-30162 11-3383642
(Commission File Number) (IRS Employer Id. Number)
10 East 50th Street 10022
New York, New York (Zip Code)
(Address of principal executive offices)
(212) 931-8000
(Registrant's telephone number, including area code)
<PAGE>
Reckson Service Industries, Inc. (the "Company") is filing this
Current Report on Form 8-K to file the below-referenced exhibit in connection
with the underwritten public offering on December 13, 1999 of 1,437,500 shares
of common stock of the Company (including the underwriter's over-allotment
option) at a public offering price of $47.25 per share.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
1.1 Underwriting Agreement, dated December 13, 1999, between Reckson
Service Industries, Inc. and Warburg Dillon Read LLC
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
RECKSON SERVICE INDUSTRIES, INC.
By: /s/ Michael Maturo
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Michael Maturo
Executive Vice President,
Chief Financial Officer and Treasurer
Date: December 29, 1999
Exhibit 1.1
1,250,000 Shares
RECKSON SERVICE INDUSTRIES, INC.
Common Stock
(Par Value $.01 Per Share)
UNDERWRITING AGREEMENT
December 13, 1999
<PAGE>
UNDERWRITING AGREEMENT
December 13, 1999
WARBURG DILLON READ LLC
299 Park Avenue
New York, New York 10171
Ladies and Gentlemen:
Reckson Service Industries, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to Warburg Dillon Read LLC (the
"Underwriter") 1,250,000 shares (the "Firm Shares") of its common stock, par
value $.01 per share (the "Common Stock"). In addition, solely for the purpose
of covering overallotments, the Company proposes to grant the Underwriter the
option to purchase from the Company an additional 187,500 shares of Common
Stock (the "Additional Shares"). The Firm Shares and the Additional Shares are
hereinafter collectively sometimes referred to as the "Shares."
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a registration statement on
Form S-3 (File No. 333-84353), relating to certain securities (the "Shelf
Securities"), including the Shares, to be issued from time to time by the
Company. The Company also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the Act ("Rule 424") a prospectus
supplement specifically relating to the Shares (a "Prospectus Supplement").
The registration statement as amended to the date of this Agreement and
including any registration statement filed pursuant to Rule 462(b) under the
Act (a "Rule 462(b) Registration Statement") is hereinafter referred to as the
"Registration Statement" and the related prospectus covering the Shelf
Securities in the form first used to confirm sales of the Shares is
hereinafter referred to as the "Basic Prospectus." The Basic Prospectus as
supplemented by any applicable Prospectus Supplement specifically relating to
the Shares in the form first used to confirm sales of the Shares is
hereinafter referred to as the "Prospectus." Any reference in this Agreement
to the Registration Statement, the Basic Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act that were filed under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Exchange Act") on or before the
date of this Agreement or the date of the Registration Statement, the Basic
Prospectus or the Prospectus, as the case may be; and any reference to
"amend," "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus or the Prospectus shall be deemed to refer to
and include any documents filed under the Exchange Act after the date of this
Agreement or the date of the Registration Statement, the Basic Prospectus or
the Prospectus, as the case may be, which are deemed to be incorporated by
reference therein.
The Company and the Underwriter agree as follows:
1. Sale and Purchase: Upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth, the
Company agrees to sell to the Underwriter and the Underwriter agrees to
purchase from the Company the Firm Shares at a purchase price of $44.45 per
Share. The Company is advised by you that the Underwriter intends initially to
offer the Firm Shares upon the terms set forth in the Prospectus. You may from
time to time increase or decrease the public offering price after the initial
offering to such extent as you may determine.
In addition, the Company hereby grants to the Underwriter the option
to purchase, and upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Underwriter shall
have the right to purchase all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the offering of the
Firm Shares, at the same purchase price per share to be paid by the
Underwriter to the Company for the Firm Shares. This option may be exercised
by you at any time (but not more than once) on or before the thirtieth day
following the date hereof, by written notice 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 when the Additional Shares are to be
delivered (such date and time being herein referred to as the "additional time
of purchase"); provided, however, that the additional time of purchase shall
not be earlier than the time of purchase (as defined below) nor earlier than
the second business day(1) after the date on which the option shall have been
exercised nor later than the tenth business day after the date on which the
option shall have been exercised.
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1 As used herein "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
2. Payment and Delivery: Payment of the purchase price for the Firm
Shares shall be made to the Company by Federal Funds wire transfer, against
delivery of the certificates for the Firm Shares to you through the facilities
of The Depository Trust Company ("DTC") for the account of the Underwriter.
Such payment and delivery shall be made at 10:00 A.M., New York City time, on
December 16, 1999 (unless another time shall be agreed to by you and the
Company). The time at which such payment and delivery are actually made is
hereinafter sometimes called the "time of purchase." Certificates for the Firm
Shares shall be delivered to you in definitive form in such names and in such
denominations as you shall specify no later than the second business day
preceding the time of purchase. For the purpose of expediting the checking of
the certificates for the Firm Shares by you, the Company agrees to make such
certificates available to you for such purpose at least one full business day
preceding the time of purchase.
Payment of the purchase price for the Additional Shares shall be
made at the additional time of purchase in the same manner and at the same
office as the payment for the Firm Shares. Certificates for the Additional
Shares shall be delivered to you in definitive form in such names and in such
denominations as you shall specify no later than the second business day
preceding the additional time of purchase. For the purpose of expediting the
checking of the certificates for the Additional Shares by you, the Company
agrees to make such certificates available to you for such purpose at least
one full business day preceding the additional time of purchase.
3. Representations and Warranties of the Company: The Company
represents and warrants to the Underwriter that:
(a) the Company meets the requirements for use of Form S-3 for the
sale of the Shares and the Registration Statement has been declared
effective by the Commission;
(b) the Registration Statement and the Prospectus, including the
financial statements, schedules and related notes included in or
incorporated by reference in the Prospectus, as of the date hereof and at
the time the Registration Statement became effective, at the time of
purchase, at the additional time of purchase and when any post-effective
amendment to the Registration Statement or Rule 462(b) Registration
Statement becomes effective or any amendment or supplement to the
Prospectus is filed with the Commission, did or will comply in all
material respects with all applicable provisions of the Act and will
contain all statements required to be stated therein in accordance with
the Act. On the date hereof, on the date of filing of any Rule 462(b)
Registration Statement, at the time of purchase and at the additional
time of purchase, no part of the Registration Statement or any amendment
did or will include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order
to make the statements therein not misleading. On the date hereof, as of
the date of the Prospectus, at the time of purchase and at the additional
time of purchase, the Prospectus did not and will not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If a Rule
462(b) Registration Statement is filed in connection with the offering
and sale of the Shares, the Company will have complied or will comply
with the requirements of Rule 111 under the Act relating to the payment
of filing fees therefor. The foregoing representations and warranties in
this Section 3(b) do not apply to any statements or omissions made in
reliance on and in conformity with information relating to the
Underwriter furnished in writing to the Company by the Underwriter
specifically for inclusion in the Registration Statement or Prospectus or
any amendment or supplement thereto. The Company has not distributed any
offering material in connection with the offering or sale of the Shares
other than the Registration Statement, the Prospectus or any other
materials, if any, permitted by the Act (which were disclosed to the
Underwriter and the Underwriter's counsel);
(c) each 462(b) Registration Statement, if any, (A) complied or will
comply when so filed in all material respects with all applicable
provisions of the Act and (B) did not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and the Prospectus delivered to the
Underwriter for use in connection with the offering of Shares will, at
the time of such delivery, be identical in content to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T under the Act
("Regulation S-T");
(d) the documents incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act
comply, or will comply, as the case may be, in all material respects with
the Exchange Act, and, when read together with other information included
in, and incorporated by reference in, the Prospectus, at the time the
Registration Statement became effective, on the date hereof, at the time
of purchase, at the additional time of purchase and when any
post-effective amendment to the Registration Statement or Rule 462(b)
Registration Statement or any amendment or supplement to the Prospectus
is filed with the Commission, did not and 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 the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information relating to the Underwriter furnished to the Company in
writing by the Underwriter specifically for inclusion in the Registration
Statement or Prospectus or any amendment or supplement thereto;
(e) (i) there are no contracts or other documents required by the
Act to be filed as exhibits to the Registration Statement or required to
be described in the Registration Statement or Prospectus that have not
been so filed or described as required; (ii) each contract to which
either the Company or any of the Subsidiaries (as defined below) is a
party and to which reference is made in the Prospectus or which is filed
as an exhibit to the Registration Statement has been duly and validly
executed by the Company or such Subsidiary, as the case may be, and, to
the knowledge of the Company, is in full force and effect in all material
respects in accordance with its terms, and no such contracts have been
assigned by the Company or the Subsidiaries except as contemplated in the
Prospectus; and (iii) the Company knows of no present situation or
condition or fact that would prevent compliance by the Company or the
Subsidiaries in all material respects with the terms of any such
contract;
(f) as of September 30, 1999, the Company had a capitalization as
set forth under the heading entitled "September 30, 1999" on Consolidated
Balance Sheets in the Company's Quarterly Report on Form 10-Q (the
"September 30 10-Q"); all of the issued and outstanding shares of capital
stock of the Company, including the Common Stock, have been duly and
validly authorized and issued and are fully paid and non-assessable, have
been issued in compliance with all federal and state securities laws and
were not issued in violation of any preemptive right, resale right, right
of first refusal or similar right; and the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, with full power and authority to
own, lease and operate its properties and conduct its business as
described in the Registration Statement, to execute and deliver this
Agreement and to issue and sell the Shares;
(g) the Company is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires such
qualification, except where the failure to so qualify would not have a
material adverse effect on the business, properties, condition (financial
or otherwise), results of operation or prospects of the Company and its
consolidated subsidiaries taken as a whole (a "Material Adverse Effect");
the Company has no "significant subsidiaries" (as defined in Regulation
S-X under the Act ("Regulation S-X")) other than those set forth on
Schedule 1 hereto (collectively, the "Subsidiaries"); and other than the
Subsidiaries, or as set forth on Schedule 2 hereto, the Company does not
own, directly or indirectly, any shares of stock or any other equity or
long-term debt securities of any corporation or have any equity interests
in any firm, partnership, joint venture, association or other entity that
are material to the Company and its consolidated subsidiaries, taken as a
whole; complete and correct copies of the charter and bylaws or limited
liability company agreement, as the case may be, of the Company and the
Subsidiaries and all amendments thereto have been delivered to you, and
except as set forth in the exhibits to the Registration Statement no
changes therein will be made subsequent to the date hereof and prior to
the time of purchase or, if later, the additional time of purchase; each
Subsidiary has been duly incorporated or formed, as the case may be, and
is validly existing as a corporation or limited liability company, as the
case may be, in good standing under the laws of the jurisdiction of its
incorporation or formation, as the case may be, with full corporate or
limited liability company, as the case may be, power and authority to
own, lease and operate its properties and to conduct its business as
described in the Registration Statement and Prospectus; each Subsidiary
is duly qualified to do business as a foreign entity in good standing in
each jurisdiction where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to so qualify would not have a Material Adverse Effect; all of
the outstanding shares of capital stock of each of the corporate
Subsidiaries have been duly authorized and validly issued, are fully paid
and non-assessable and all of the member interests in the limited
liability company Subsidiary have been validly issued, and (except as
otherwise described on Schedule 1) are owned by the Company subject to no
security interest, other encumbrance or adverse claim;
(h) neither the Company nor any of its Subsidiaries is in breach of,
or in default under (nor has any event occurred which with notice, lapse
of time, or both would constitute a breach of, or default under), its
respective charter or by-laws or in the performance or observance of any
obligation, agreement, covenant or condition contained in any license,
indenture, mortgage, deed of trust, bank loan or credit agreement or
other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them is bound, except where
such breach or default would not have an Material Adverse Effect, and the
execution, delivery and performance of this Agreement and the issuance of
the Shares and consummation of the transactions contemplated hereby and
thereby will not conflict with, or result in any breach of or constitute
a default under (nor constitute any event which with notice, lapse of
time, or both would constitute a breach of, or default under), any
provisions of the charter or by-laws or limited liability company
agreement, as the case may be, of the Company or any of its Subsidiaries
or under any provision of any license, indenture, mortgage, deed of
trust, bank loan or credit agreement or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which any
of them or their respective properties may be bound or affected, or under
any federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company or any of its
Subsidiaries;
(i) the Shares have been duly authorized by the Company and, when
issued and delivered by the Company against payment of the consideration
therefor specified herein, will be duly and validly issued and fully paid
and nonassessable; the issuance of such Shares will not be subject to any
preemptive right, resale right, right of first refusal or similar right;
and no person has the right, contractual or otherwise, to cause the
Company to issue to it, or register pursuant to the Act, any shares of
capital stock of the Company upon the issue and sale of the Shares to the
Underwriter hereunder;
(j) this Agreement has been duly authorized, executed and delivered
by the Company and is a legal, valid and binding agreement of the Company
enforceable in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting the enforcement of
creditors' rights generally or general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or
at law), and except further as the enforcement of the indemnification and
contribution provisions contained herein may be limited by federal or
state securities laws or the public policy underlying such laws;
(k) the capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in the
Registration Statement and the certificates for the Shares are in due and
proper form and the holders of the Shares will not be subject to personal
liability by reason of being such holders;
(l) no approval, authorization, consent or order of or filing with
any national, state or local governmental or regulatory commission,
board, body, authority or agency is required in connection with the
issuance or sale of the Shares or the consummation by the Company of the
transactions as contemplated hereby other than registration of the Shares
under the Act and any necessary qualification under the securities or
blue sky laws of the various jurisdictions in which the Shares are being
offered by the Underwriter or under the rules and regulations of the
National Association of Securities Dealers, Inc. ("NASD");
(m) Ernst & Young LLP, whose reports on the consolidated financial
statements of (i) the Company and its Subsidiaries, (ii) Interoffice
Superholdings Corporation and subsidiaries, (iii) RSVP Holdings, LLC,
(iv) Xebec Management Services, Inc. and affiliate and (v) InterOffice
(Holdings) Corporation and Subsidiaries (the entities referred to in
clauses (ii) through (v) above together, the "Acquired Companies") are
included in the Registration Statement, are independent public
accountants with respect to the Company and each of the Acquired
Companies as required by the Act and the applicable published rules and
regulations thereunder;
(n) each of the Company and its Subsidiaries has all necessary
licenses, authorizations, consents and approvals (collectively,
"Consents") and has made all necessary filings required under any
federal, state, local or foreign law, regulation or rule ("Filings"), and
has obtained all necessary Consents from other persons, in order to
conduct its respective business, except where the failure to possess such
Consents or make such Filings would not have a Material Adverse Effect;
and neither the Company nor any of its Subsidiaries is in violation of,
or in default under, any such Consent or any federal, state, local or
foreign law, regulation or rule or any decree, order or judgment
applicable to the Company or any of its Subsidiaries the effect of which
would have a Material Adverse Effect;
(o) there are no actions, suits or proceedings pending or threatened
to which the Company or any of its Subsidiaries or any of their
respective officers is a party or of which any of their respective
properties are subject, at law or in equity, or before or by any federal,
state, local or foreign governmental or regulatory commission, board,
body, authority or agency which could result in a judgment, decree or
order having a Material Adverse Effect, prevent consummation of any of
the transactions contemplated thereby or which are required by the Act to
be described in the Registration Statement or Prospectus that have not
been so described;
(p) the Company and each Subsidiary have filed on a timely basis all
necessary federal, state and foreign income, franchise and other tax
returns and have paid all taxes shown thereon as due, and the Company has
no knowledge of any tax deficiency which has been or might be asserted
against the Company or any Subsidiary which might have a Material Adverse
Effect; and all material tax liabilities are adequately provided for
within the financial statements of the Company;
(q) the Company and its Subsidiaries maintain insurance of the types
and in the amounts reasonably believed to be adequate for their business
and consistent with insurance coverage maintained by similar companies in
similar businesses, all of which insurance is in full force and effect;
(r) neither the Company nor its Subsidiaries are involved in labor
dispute or disturbance nor, to the knowledge of the Company, is any labor
dispute or disturbance threatened, in each case that would have a
Material Adverse Effect;
(s) except as described in the Registration Statement, the Company
and each Subsidiary owns or possesses adequate licenses or other rights
to use all patents, patent applications, trademarks, trademark
applications, service marks, service mark applications, trade names,
copyrights, manufacturing processes, formulae, trade secrets, know-how,
franchises, and other material intangible property and assets
(collectively, "Intellectual Property") necessary to the conduct of their
businesses as conducted and as proposed to be conducted as described in
the Registration Statement, except where the failure to do so would not
have a Material Adverse Effect; the Company has no knowledge that it or
any Subsidiary lacks or will be unable to obtain any rights or licenses
to use any of the Intellectual Property necessary to conduct the business
now conducted or proposed to be conducted by it as described in the
Registration Statement, except as described in the Registration Statement
and except where the failure to have or obtain such rights or licenses
would not have a Material Adverse Effect; the Registration Statement
fairly and accurately describes the Company's rights with respect to any
Intellectual Property; the Company has not received any notice of
infringement or of conflict with rights or claims of others with respect
to any Intellectual Property; and the Company is not aware of any patents
of others which are infringed upon by potential products or processes
referred to in the Registration Statement in such a manner as to have a
Material Adverse Effect, except as described in the Registration
Statement;
(t) the audited financial statements included or incorporated by
reference in the Registration Statement present fairly the consolidated
financial position of the Company and its consolidated subsidiaries and
each of the Acquired Companies as of the dates indicated and the
consolidated results of operations and changes in financial position of
the Company and its consolidated subsidiaries and each of the Acquired
Companies for the periods specified; and such financial statements have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved;
(u) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been (i) any material adverse change or any development which in the
Company's reasonable judgment, is likely to cause a Material Adverse
Effect, (ii) any transaction which is material and unfavorable to the
Company or its Subsidiaries, except transactions in the ordinary course
of business, (iii) any obligation, direct or contingent, which is
material to the Company and its consolidated subsidiaries taken as a
whole, incurred by the Company or its Subsidiaries, except obligations
incurred in the ordinary course of business, (iv) any change in the
capital stock or outstanding indebtedness of the Company or its
Subsidiaries or (v) any dividend or distribution of any kind declared,
paid or made on the capital stock of the Company; and neither the Company
nor any of its Subsidiaries has any material contingent obligation which
is not disclosed in the Registration Statement and the Prospectus;
(v) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Company, threatened by the
Commission;
(w) the Shares, upon issuance, will be duly listed for trading on
the Nasdaq National Market;
(x) prior to the date hereof, neither the Company nor, to the
Company's knowledge, any of its affiliates has taken any action which is
designed to or which has constituted or which might have been expected to
cause or result in stabilization or manipulation of the price of any
security of the Company in connection with the offering of the Shares,
except as permitted by this Agreement;
(y) all statements in the Basic Prospectus under the heading "Risk
Factors -- Risk of Impact of Year 2000 Issue on Our Operating and
Financial Results" are accurate in all material respects;
(z) the Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" (as defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act")) by a company required to be
registered under the Investment Company Act;
(aa) except as disclosed in the Registration Statement or the
Propsectus or as would not have a Material Adverse Effect, (A) neither
the Company nor any of its Subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection
of human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating to
the release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, "Environmental Laws"), (B)
the Company and its Subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are each
in compliance with their requirements, (C) there are no pending or
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation, or proceedings relating to any Environmental
Law against the Company or any of its Subsidiaries, (D) there are no
events or circumstances that might reasonably be expected to form the
basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against
or affecting the Company or any of its Subsidiaries relating to Hazardous
Materials or Environmental Laws and (E) neither the Company nor any of
its Subsidiaries has assumed by contract or agreement any liabilities or
obligations arising under any Environmental Law, including, without
limitation, any such liabilities or obligations with respect to formerly
owned, leased or operated real property or facilities, or former
divisions or subsidiaries; and
(bb) none of the Company nor any of its Subsidiaries has incurred
any liability for any prohibited transaction or funding deficiency or any
complete or partial withdrawal liability with respect to any pension,
profit sharing or other plan which is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), to which the Company
or any of its Subsidiaries makes or ever has made a contribution and in
which any employee of the Company or any Subsidiary is or has ever been a
participant, which, individually or in the aggregate, could reasonably be
expected to have or result in a Material Adverse Effect; and with respect
to such plans, each of the Company and its Subsidiaries is in compliance
in all respects with all applicable provisions of ERISA, except where the
failure to so comply could not, individually or in the aggregate,
reasonably be expected to have or result in a Material Adverse Effect.
4. Certain Covenants of the Company: The Company hereby agrees:
(a) The Company, subject to Section 4(b), will notify the
Underwriter immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus, or of the suspension of the qualification
of the Shares for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes.
The Company will promptly effect the filings necessary pursuant to Rule
424 and will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 424 was
received for filing by the Commission, and in the event that it was not,
it will promptly file such prospectus; and the Company will make every
reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest
possible moment;
(b) Prior to the termination of the offering of the Shares, the
Company will give the Underwriter notice of its intention to file or
prepare any amendment to the Registration Statement (including any filing
under Rule 462(b)), or any amendment, supplement or revision to either
the prospectus included in the Registration Statement at the time it
became effective or to the Prospectus, will furnish the Underwriter with
copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any
such document to which the Underwriter or counsel for the Underwriter
shall reasonably object;
(c) The Company has furnished or will deliver to the Underwriter and
counsel for the Underwriter, without charge, signed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein)
and signed copies of all consents and certificates of experts, and will
also deliver to the Underwriter, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for the Underwriter; and the copies of the
Registration Statement and each amendment thereto furnished to the
Underwriter will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T;
(d) The Company will furnish to the Underwriter, without charge,
during the period when the Prospectus is required, in the opinion of
counsel to the Underwriter, to be delivered under the Act or the Exchange
Act, such number of copies of the Prospectus (as amended or supplemented)
as the Underwriter may reasonably request; and the Prospectus and any
amendments or supplements thereto furnished to the Underwriter will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T;
(e) The Company will comply with the Act so as to permit the
completion of the distribution of the Shares as contemplated in this
Agreement and in the Prospectus. If, at any time when a prospectus is
required by the Act to be delivered in connection with sales of the
Shares, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriter or
for the Company, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include
any untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel,
at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the
Act, the Company will promptly prepare and file with the Commission,
subject to Section 4(b), such amendment or supplement as may be necessary
to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriter such number of copies of such
amendment or supplement as the Underwriter may reasonably request;
(f) The Company will use its best efforts, in cooperation with the
Underwriter, to qualify the Shares for offering and sale under the
applicable securities laws of such states as the Underwriter may
designate and to maintain such qualifications in effect for a period of
not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement;
provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject; and
in each jurisdiction in which the Shares have been so qualified, the
Company will file such statements and reports as may be required by the
laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the
Registration Statement and any Rule 462(b) Registration Statement;
(g) The Company will not issue, sell, offer or agree to sell,
contract to sell, grant any option to purchase or otherwise dispose of,
directly or indirectly, any shares of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock or
warrants or other rights to purchase Common Stock or any other securities
of the Company that are substantially similar to Common Stock or permit
the registration under the Act of any shares of Common Stock, except for
(1) the registration of the Shares and the sales to the Underwriter
pursuant to this Agreement, (2) issuances of Common Stock upon the
exercise of outstanding options, options issued in compliance with (3)
below, warrants and debentures, (3) issuances of options exercisable for
Common Stock or other capital stock of the Company issued under the
Company's employee stock option plans in effect on the date hereof, (4)
issuances of Common Stock as consideration for the purchase of equity
interests in other entities, provided that recipients of such Common
Stock agree to be bound by agreements with the same terms as those
referenced in Section 6(k) hereof, (5) the offer, sale and issuance of
the Company's convertible preferred stock pursuant to an exemption from
the registration requirements of the Act other than Rule 144A under the
Act, provided that such sale shall not generate gross proceeds greater
than $40,937,500, and (6) the registration of Common Stock under the
Company's Registration Statement on Form S-3 (333-92247) currently on
file with the Securities and Exchange Commission with respect to certain
selling stockholders so as to permit such stockholders to pledge their
Common Stock in connection with a loan (which Registration Statement may
not be amended or supplemented to provide for the registration of
additional shares of Common Stock), in each case, for a period of 90 days
after the date hereof, without the prior written consent of the
Underwriter;
(h) The Company will make generally available to its securityholders
as soon as reasonably practicable an earnings statement covering a period
of at least twelve months after the effective date of the Registration
Statement (but in no event commencing later than 90 days after such date)
which shall satisfy the provisions of Section 11(a) of the Act, and will
advise the Underwriter in writing when such statement has been so made
available;
(i) The Company will use the net proceeds received by it from the
sale of the Shares pursuant to this Agreement in the manner specified in
the Prospectus Supplement under the caption "Use of Proceeds";
(j) The Company will pay all expenses, fees and taxes (other than
any transfer taxes and fees and disbursements of counsel for the
Underwriter except as set forth under Section 5 hereof and (iii), (iv)
and (vi) below) in connection with (i) the preparation and filing of the
Registration Statement and the printing and furnishing of copies of each
thereof to the Underwriter and to dealers (including costs of mailing and
shipment), (ii) the preparation, issuance, execution, authentication and
delivery of the Shares, (iii) the qualification of the Shares for
offering and sale under state laws (including the reasonable legal fees
and filing fees and other disbursements of counsel for the Underwriter)
and the printing and furnishing of copies of any blue sky surveys or
legal investment surveys to the Underwriter and to dealers, (iv) the
listing of the Shares for trading on the Nasdaq National Market and any
registration thereof under the Exchange Act, (v) any filing for review of
the public offering of the Shares by the NASD and (vi) the performance of
the Company's other obligations hereunder; and
(k) The Company will use its best efforts to cause the Shares to be
listed for trading on the Nasdaq National Market.
5. Reimbursement of Underwriter's Expenses: If the Shares are not
delivered for any reason other than the default by the Underwriter in its
obligations hereunder or termination of this Agreement by the Underwriter
pursuant to Section 7 hereof, the Company shall reimburse the Underwriter for
all of its out-of-pocket expenses, including the reasonable fees and
disbursements of its counsel.
6. Conditions of Underwriter's Obligations: The obligations of the
Underwriter hereunder are subject to the accuracy of the representations and
warranties on the part of the Company on the date hereof and at the time of
purchase or the additional time of purchase, as the case may be, to the
performance by the Company of its obligations hereunder and to the following
conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing pursuant to the rules and regulations under the Act; and no
stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have
been commenced or shall be pending before or, to the best of the
Company's knowledge, contemplated by the Commission.
(b) The Company shall furnish to you an opinion of Brown & Wood LLP,
counsel for the Company, addressed to the Underwriter and dated the time
of purchase and the additional time of purchase, as the case may be, in
form and substance satisfactory to Cahill Gordon & Reindel, counsel for
the Underwriter.
(c) You shall have received comfort letters addressed to the
Underwriter in the forms heretofore approved by the Underwriter dated,
(i) respectively, as of the date of this Agreement, the time of purchase
and the additional time of purchase, as the case may be, of Ernst & Young
LLP with respect to the financial statements of the Company and the
Acquired Companies and (ii) as of the time of purchase,
PricewaterhouseCoopers LLP with respect to the financial statements of
VANTAS Incorporated and subsidiaries.
(d) You shall have received an opinion of Cahill Gordon & Reindel,
counsel for the Underwriter, dated the time of purchase and the
additional time of purchase, as the case may be. Such counsel shall state
that such counsel have participated in conferences with officers and
other representatives of the Company, counsel for the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriter at which the contents of the
Registration Statement 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 (except as to the material accuracy of the
description of the Common Stock in 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 the attention of such counsel which lead them to believe that the
Registration Statement or any amendment thereto at the time the
Registration Statement or such amendment became effective as of its date
or any supplement thereto contained an 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 as of its date or any amendment or supplement thereto included
an untrue statement of a material fact or omitted 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 (it being
understood that such counsel need express no comment with respect to the
financial statements and schedules and other financial and statistical
data included in the Registration Statement or Prospectus).
(e) At the time of purchase and the additional time of purchase, as
the case may be, the Registration Statement shall not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
(f) Between the time of execution of this Agreement and the time of
purchase and the additional time of purchase, as the case may be, (i) no
material and unfavorable change, financial or otherwise (other than as
referred to in the Registration Statement), in the business, condition or
prospects of the Company and its consolidated subsidiaries, taken as a
whole shall occur or become known and (ii) no transaction which is
material and unfavorable to the Company shall have been entered into by
the Company or any of its Subsidiaries.
(g) The Company will, at the time of purchase and the additional
time of purchase, as the case may be, deliver to you a certificate of its
chief financial officer to the effect that the representations and
warranties of the Company set forth in this Agreement and the conditions
set forth in paragraph (e) and paragraph (f) have been met and are true
and correct as of each such date.
(h) The Shares shall have been approved for listing for quotation on
the Nasdaq National Market, subject only to official notice of issuance.
(i) The Company shall have furnished to you such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement as of the time of purchase and the additional time
of purchase, as the case may be, as you may reasonably request.
(j) The Company shall perform such of its obligations under this
Agreement as are to be performed by the terms hereof at or before the
time of purchase and the additional time of purchase, as the case may be.
(k) The Company shall have obtained the agreement of each of its
directors and executive officers not to sell, offer to sell, contract to
sell, hypothecate, grant any option to purchase or otherwise dispose of,
directly or indirectly, any shares of Common Stock or securities
convertible into or exchangeable for Common Stock or warrants or other
rights to purchase Common Stock for a period of 90 days after the date
hereof, without the prior written consent of the Underwriter.
7. Termination: The obligations of the Underwriter hereunder shall
be subject to termination in the absolute discretion of the Underwriter if,
since the time of execution of this Agreement or the respective dates as of
which information is given in the Prospectus, (y) there has been any material
adverse and unfavorable change, financial or otherwise (other than as referred
to in the Registration Statement), in the business, condition or prospects of
the Company and its consolidated subsidiaries taken as a whole, which would,
in the reasonable judgment of the Underwriter, make it impracticable to market
the Shares, or (z) at any time prior to the time of purchase and the
additional time of purchase, as the case may be, trading in securities on the
New York Stock Exchange, the American Stock Exchange or the Nasdaq National
Market shall have been suspended or minimum prices shall have been established
on the New York Stock Exchange, the American Stock Exchange or the Nasdaq
National Market, or if a banking moratorium shall have been declared either by
the United States or New York State authorities, or if the United States shall
have declared war in accordance with its constitutional processes or there
shall have occurred any material outbreak or escalation of hostilities or
other national or international calamity or crisis of such magnitude in its
effect on the financial markets of the United States as, in the reasonable
judgment of the Underwriter, to make it impracticable to market the Shares.
If the Underwriter elects to terminate this Agreement as provided in
this Section 7, the Company shall be notified promptly by letter or telegram.
If the sale to the Underwriter of the Shares, as contemplated by
this Agreement, is not carried out by the Underwriter for any reason permitted
under this Agreement or if such sale is not carried out because the Company
shall be unable to comply and does not comply with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under
this Agreement (except to the extent provided in Sections 4(j), 5 and 8
hereof), and the Underwriter shall be under no obligation or liability to the
Company under this Agreement (except to the extent provided in Section 8
hereof).
8. Indemnity by the Company and the Underwriter:
(a) The Company agrees to indemnify, defend and hold harmless the
Underwriter, its members, directors and officers, and any person who controls
the Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, and such persons, members, directors and officers, and the
successors and assigns of all of the foregoing persons, from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Underwriter or any such person
may incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of or is
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company) or in a
Prospectus (the term Prospectus for the purpose of this Section 8 being deemed
to include the Prospectus and the Prospectus as amended or supplemented by the
Company), or arises out of or is based upon any omission or alleged omission
to state a material fact required to be stated in either such Registration
Statement or Prospectus or necessary to make the statements made therein not
misleading, except insofar as any such loss, damage, expense, liability or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in and in conformity with information
furnished in writing by the Underwriter to the Company expressly for use with
reference to the Underwriter in such Registration Statement or Prospectus or
arises out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated in
such Registration Statement or Prospectus or necessary to make such
information not misleading.
If any claim, suit, action, proceeding, investigation or inquiry
(together, a "Proceeding") is brought against the Underwriter or any such
person in respect of which indemnity may be sought against the Company
pursuant to the foregoing paragraph, the Underwriter or such person shall
promptly notify the Company in writing of the institution of such Proceeding
and the Company shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify the Company shall not relieve the Company from any liability which it
may have to the Underwriter to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which
it may have otherwise than on account of this indemnity agreement. The
Underwriter or controlling person shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be
at the expense of the Underwriter or such person unless the employment of such
counsel shall have been authorized in writing by the Company in connection
with the defense of such Proceeding or the Company shall not have, within a
reasonable period of time, in light of the circumstances, employed counsel to
have charge of the defense of such Proceeding, or 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 or in conflict with
those available to the Company (in which case the Company shall not have the
right to direct the defense of such Proceeding on behalf of the indemnified
party or parties), in any of which events such fees and expenses shall be
borne by the Company and paid as incurred (it being understood, however, that
the Company shall not be liable for the expenses of more than one separate
counsel (in addition to local counsel) in any one Proceeding or series of
related proceedings representing the indemnified parties who are parties to
such Proceeding). The Company shall not be liable for any settlement of any
Proceeding effected without its written consent, but if settled with the
written consent of the Company, the Company agrees to indemnify and hold
harmless the Underwriter and any such person from and against any loss or
liability by reason of such settlement. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of
any pending or threatened Proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought hereunder
by such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such Proceeding and does not include an admission of fault,
culpability or failure to act.
(b) The Underwriter agrees to indemnify, defend and hold harmless
the Company, its directors and officers and any person who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and such person's directors and officers, and the successors and
assigns of all of the foregoing persons, from and against any loss, damage,
expense, liability or claim (including the reasonable cost of investigation)
which, jointly or severally, the Company or any such person may incur under
the Act, the Exchange Act, the common law or otherwise, insofar as such loss,
damage, expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in and in
conformity with information furnished in writing by or on behalf of the
Underwriter to the Company expressly for use with reference to the Underwriter
in the Registration Statement (or in the Registration Statement as amended by
any post-effective amendment thereof by the Company) or in a Prospectus or
arises out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated in
such Registration Statement or such Prospectus or necessary to make such
information not misleading.
If any Proceeding is brought against the Company or any such person
in respect of which indemnity may be sought against the Underwriter pursuant
to the foregoing paragraph, the Company or such person shall promptly notify
the Underwriter in writing of the institution of such Proceeding and the
Underwriter shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to
notify the Underwriter shall not relieve the Underwriter from any liability
which it may have to the Company to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. The
Company or such person shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense
of the Company or such person unless the employment of such counsel shall have
been authorized in writing by the Underwriter in connection with the defense
of such Proceeding or the Underwriter shall not have within a reasonable
period of time in light of the circumstances, employed counsel to have charge
of the defense of such Proceeding or 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 or in conflict with those available
to the Underwriter (in which case the Underwriter shall not have the right to
direct the defense of such Proceeding on behalf of the indemnified party or
parties, but the Underwriter may employ counsel and participate in the defense
thereof but the fees and expenses of such counsel shall be at the expense of
the Underwriter), in any of which events such fees and expenses shall be borne
by the Underwriter and paid as incurred (it being understood, however, that
the Underwriter shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings representing the indemnified parties who are parties to
such Proceeding). The Underwriter shall not be liable for any settlement of
such Proceeding effected without the written consent of the Underwriter, but
if settled with the written consent of such Underwriter, such Underwriter
agrees to indemnify and hold harmless the Company and any such person from and
against any loss or liability by reason of such settlement. No indemnifying
party shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened Proceeding in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such Proceeding.
(c) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 8 or insufficient to hold an indemnified person harmless in respect of
any losses, damages, expenses, liabilities or claims referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, damages, expenses, liabilities or claims (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriter on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the Underwriter
on the other in connection with the statements or omissions which resulted in
such losses, damages, expenses, liabilities or claims, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriter on the other shall be deemed to be
in the same proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company bear to the underwriting discounts and commissions received by
the Underwriter. The relative fault of the Company on the one hand and of the
Underwriter on the other shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement of a material
fact or omission or alleged omission relates to information supplied by the
Company or by the Underwriter and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
damages, expenses, liabilities or claims referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party
in connection with investigating, preparing to defend or defending any
Proceeding.
(d) The Company and the Underwriter agree that it would not be just
and equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in subsection (c) above.
Notwithstanding the provisions of this Section 8, the Underwriter shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which the
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this
Section 8 and the covenants, warranties and representations of the Company
contained in this Agreement shall remain in full force and effect regardless
of any investigation made by on behalf of the Underwriter, its members,
directors or officers or any person (including each member, officer or
director of such person) who controls the Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, or by or on behalf of
the Company, its directors and officers or any person who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and shall survive any termination of this Agreement or the issuance and
delivery of the Shares. The Company and the Underwriter agree promptly to
notify the other of the commencement of any Proceeding against it and, in the
case of the Company, against any of the Company's officers or directors, in
connection with the issuance and sale of the Shares, or in connection with the
Prospectus or Registration Statement.
9. Notices: Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriter, shall be sufficient in all respects if delivered or sent to
Warburg Dillon Read LLC, 299 Park Avenue, New York, New York 10171, Attention:
Syndicate Department, and, if to the Company, shall be sufficient in all
respects if delivered or sent to the Company at the offices of the Company at
10 East 50th Street, New York, New York 10022, Attention: Jason M. Barnett,
Executive Vice President and General Counsel.
10. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of law thereof. The Section
headings in this Agreement have been inserted as a matter of convenience of
reference and are not a part of this Agreement.
11. Submission to Jurisdiction. Except as set forth below, no Claim
may be commenced, prosecuted or continued in any court other than the courts
of the State of New York located in the City and County of New York or in the
United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and the
Company consents to the jurisdiction of such courts and personal service with
respect thereto. The Company hereby consents to personal jurisdiction, service
and venue in any court in which any Claim is brought by any third party
against the Underwriter or any indemnified party. Each of the Underwriter and
the Company (on its behalf and, to the extent permitted by applicable law, on
behalf of its stockholders and affiliates) waives all right to trial by jury
in any Claim (whether based upon contract, tort or otherwise). Each of the
Underwriter and the Company agrees that a final judgment in any such Claim
brought in any such court shall be conclusive and binding upon it and may be
enforced in any other courts to the jurisdiction of which it is or may be
subject, by suit upon such judgment.
12. Parties at Interest: The Agreement herein set forth has been and
is made solely for the benefit of the Underwriter and the Company and the
controlling persons, members, directors and officers referred to in Section 8
hereof, and their respective successors, assigns, executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from the Underwriter) shall acquire
or have any right under or by virtue of this Agreement.
13. Counterparts: This Agreement may be signed by the parties in
counterparts which together shall constitute one and the same agreement among
the parties. Delivery of an executed counterpart by facsimile shall be
effective as delivery of a manually executed counterpart thereof.
[SIGNATURE PAGE FOLLOWS]
<PAGE>
If the foregoing correctly sets forth the understanding between the
Company and the Underwriter, please so indicate in the space provided below
for the purpose, whereupon this letter and your acceptance shall constitute a
binding agreement between the Company and the Underwriter.
Very truly yours,
RECKSON SERVICE INDUSTRIES, INC.
By: /s/ Michael Maturo
-----------------------------------
Name: Michael Maturo
Title: Executive Vice President
Accepted and agreed to as of the date first
above written
WARBURG DILLON READ LLC
By: /s/ John M. Boyle
--------------------------
Name: John M. Boyle
Title: Executive Director
By: /s/ Linda Phelps
--------------------------
Name: Linda Phelps
Title: Director
