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EXHIBIT 1.1
______ SHARES
----------------------
COMMON STOCK
(PAR VALUE $.__ PER SHARE)
UNDERWRITING AGREEMENT
___________ __, 200_
[IF NO CO-REPRESENTATIVE, USE FIRST
ADDRESS FORM. IF CO-REPRESENTATIVE,
USE SECOND.]
STIFEL, NICOLAUS & COMPANY, INCORPORATED
As Representative of the
several Underwriters
One Financial Plaza
501 North Broadway
St. Louis, Missouri 63102
Dear Sirs:
1. INTRODUCTION. _______________________, a ______________ corporation
(the "Company"), proposes to issue and sell to the several Underwriters named in
Schedule I hereto (the "Underwriters"), for which Stifel, Nicolaus & Company,
Incorporated is acting as representative (the "Representative"), an aggregate of
________ shares of the Company's Common Stock, par value $___ per share (the
"Common Stock"). [The stockholders listed in Schedule II hereto (the "Selling
Stockholders") propose severally to sell to the several Underwriters an
aggregate of _______ outstanding shares of Common Stock.] [The _______ shares of
Common Stock to be sold by the Company and the _______ shares of Common Stock to
be sold by the Selling Stockholders are referred to herein as the "Firm Shares."
The Company also proposes to issue and sell to the several Underwriters an
aggregate of not more than ______ additional shares of Common Stock if requested
by the Underwriters in accordance with Section 9 hereof. [The Selling
Stockholder severally also propose to issue and sell to the several Underwriters
an aggregate of not more than ______ additional shares of Common Stock, if
requested by the Underwriters in accordance with Section 9 hereof.] [The ______
additional shares of Common Stock to be sold by the Company and the _____
additional shares of Common Stock to be sold by the Selling Stockholders are
collectively referred to herein as the "Additional Shares"). The Firm Shares and
the Additional Shares are collectively referred to
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herein as the "Shares." The words "you" and "your" refer to the Representative
of the Underwriters.
[The Company and each of the Selling Stockholders hereby severally
agree with the several Underwriters as follows:]
2. REPRESENTATIONS AND WARRANTIES.
(1) The Company represents, warrants and agrees with each of the
Underwriters that:
(1) A registration statement on Form S-2 (File No. 33-______)
under the Securities Act of 1933 as amended (the "Act"), with respect
to the Shares, including a form of prospectus subject to completion,
has been prepared by the Company in conformity with the requirements of
the Act and the rules and regulations of the Securities and Exchange
Commission (the "Commission") thereunder (the "Rules and Regulations").
Such registration statement has been filed with the Commission under
the Act, and one or more amendments to such registration statement may
also have been so filed. After the execution of this Agreement, the
Company shall file with the Commission either (A) if such registration
statement, as it may have been amended, has been declared by the
Commission to be effective under the Act, a prospectus in the form most
recently included in an amendment to such registration statement filed
with the Commission (or, if no such amendment shall have been filed, in
such registration statement), with such insertions and changes as are
required by Rule 430A under the Act or permitted by Rule 424(b) under
the Act as shall have been provided to and approved by the
Representative prior to the filing thereof, or (B) if such registration
statement, as it may have been amended, has not been declared by the
Commission to be effective under the Act, an amendment to such
registration statement, including a form of prospectus, a copy of which
amendment has been furnished to and approved by the Representative
prior to the filing thereof. As used in this Agreement, the term
"Registration Statement" means such registration statement, as amended
at the time when it was or is declared effective, including all
financial schedules and exhibits thereto and to documents incorporated
therein by reference; the Registration Statement shall be deemed to
include any information omitted therefrom pursuant to Rule 430A under
the Act and included in the Prospectus (as hereinafter defined); the
term "Preliminary Prospectus" means each prospectus subject to
completion contained in such registration statement or any amendment
thereto (including the prospectus subject to completion, if any,
included in the Registration Statement or any amendment thereto or
filed pursuant to Rule 424(a) under the Act at the time it was or is
declared effective); and the term "Prospectus" means the prospectus
first filed with the Commission pursuant to Rule 424(b) under the Act
or, if no prospectus is required to be filed pursuant to said Rule
424(b), such term means the prospectus included in the Registration
Statement. References herein to any document or other information
incorporated by reference in the Registration Statement shall include
documents or other information incorporated by reference in the
Prospectus (or, if the Prospectus is not in existence, in the most
recent Preliminary Prospectus). Reference
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made herein to any Preliminary Prospectus or the Prospectus shall be
deemed to include all documents and information incorporated by
reference therein under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
(2) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus and has not instituted
or threatened to institute any proceedings with respect to such an
order. When any Preliminary Prospectus was filed with the Commission it
(A) contained all statements required to be stated therein in
accordance with, and complied in all material respects with the
requirements of, the Act and the Rules and Regulations and (B) did not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
When the Registration Statement or any amendment thereto was or is
declared effective, it (A) contained or will contain all statements
required to be stated therein in accordance with, and complied or will
comply in all material respects with the requirements of, the Act and
the Rules and Regulations and (B) did not or will not include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading. When the
Prospectus and when any amendment or supplement thereto is filed with
the Commission pursuant to Rule 424(b) (or, if the Prospectus or such
amendment or supplement is not required to be so filed, when the
Registration Statement and when any amendment thereto containing such
amendment or supplement to the Prospectus was or is declared effective)
and at all times subsequent thereto, up to and including the Closing
Date (as defined in Section 3 hereof) and the Option Closing Date (as
defined in Section 9 hereof), the Prospectus, as amended or
supplemented at any such time, (A) contained or will contain all
statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements
of, the Act and the Rules and Regulations and (B) did not or will not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
The foregoing provisions of this paragraph (ii) shall not apply to
statements or omissions made in any Preliminary Prospectus, the
Registration Statement or any amendment thereto or the Prospectus or
any amendment or supplement thereto in reliance upon, and in conformity
with, information furnished in writing to the Company by or on behalf
of the Underwriters through the Representative expressly for use
therein. The documents which are incorporated by reference in any
Preliminary Prospectus or the Prospectus or from which information is
so incorporated by reference, when they became effective or were filed
with the Commission, as the case may be, complied in all material
respects with the requirements of the Act and the Rules and Regulations
or the Exchange Act and the rules and regulations thereunder, as
applicable, and did not, when such documents were so filed, contain any
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, in light of the circumstances under which they were
made, not misleading.
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(3) Each of the Company and its subsidiaries (A) is a duly
incorporated and validly existing corporation in good standing under
the laws of its jurisdiction of incorporation, with full power and
authority (corporate and other) to own or lease its properties and to
conduct its business as described in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus); and (B) is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction (x) in
which the conduct of its business requires such qualification (except
for those jurisdictions in which the failure so to qualify has not had
and will not have a Material Adverse Effect (as hereinafter defined))
and (y) in which it owns or leases property. "Material Adverse Effect"
means, when used in connection with the Company or its subsidiaries,
any development, change or effect that is materially adverse to the
business, properties, assets, net worth, condition (financial or
other), results of operations or prospects of the Company and its
subsidiaries taken as a whole.
(4) The Company has the duly authorized and validly outstanding
capitalization set forth under the caption in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus) and will have the adjusted capitalization set forth therein
on the Closing Date and the Option Closing Date, based on the
assumptions set forth therein. The securities of the Company conform to
the descriptions thereof contained in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus). The outstanding shares of Common Stock have been duly
authorized and validly issued by the Company and are fully paid and
nonassessable. Except as created hereby or referred to in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), there are no outstanding options, warrants,
rights or other arrangements requiring the Company or any subsidiary at
any time to issue any capital stock. No holders of outstanding shares
of capital stock of the Company are entitled as such to any preemptive
or other rights to subscribe for any of the Shares and neither the
filing of the registration statement nor the offering or sale of the
Shares as contemplated by this Agreement gives rise to any rights,
other than those which have been waived or satisfied, for or relating
to, the registration of any securities of the Company. The Shares have
been duly authorized; on the Closing Date or the Option Closing Date
(as the case may be), after payment therefor in accordance with the
terms of this Agreement, (A) the Firm Shares and the Additional Shares
to be sold by the Company hereunder will be validly issued, fully paid
and nonassessable, and (B) good and marketable title to the Shares will
pass to the Underwriters on the Closing Date or the Option Closing Date
(as the case may be) free and clear of any lien, encumbrance, security
interest, claim or other restriction whatsoever. All the outstanding
shares of capital stock of each subsidiary has been duly authorized and
validly issued, are fully paid and nonassessable and are owned directly
by the Company, free and clear of any lien, encumbrance, security
interest, claim or other restriction whatsoever. The Company has
received, subject to notice of issuance, approval to have the Shares
[quoted on the National Market System of the National Association of
Securities Dealers' Automated Quotations System] [listed on The
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_______ Stock Exchange] and the Company knows of no reason or set of
facts which is likely to adversely affect such approval.
(5) The consolidated financial statements and the related notes
and schedules thereto included in the Registration Statement or
incorporated therein by reference and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
fairly present the [consolidated] financial condition, results of
operations, stockholders' equity and cash flows of the Company and its
subsidiaries at the dates and for the periods specified therein. Such
financial statements and the related notes and schedules thereto have
been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved (except
as otherwise noted therein) and such financial statements as are
audited have been examined by ________, who are independent public
accountants within the meaning of the Act and the Rules and
Regulations, as indicated in their reports filed therewith. The
selected financial information and statistical data set forth under the
caption[s] _________ in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) have been prepared
on a basis consistent with the financial statements of the Company and
its subsidiaries. The pro forma financial statements of the Company and
its subsidiaries, and the related notes thereto, set forth in the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) have been
prepared in conformity with the requirements of the Act and the Rules
and Regulations and present fairly the information shown therein; and
the pro forma adjustments on such pro forma financial statements have
been properly applied on the basis described in the related notes
thereto. The pro forma financial data set forth in the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus), under the captions have been prepared on a basis
consistent with the pro forma consolidated financial statements of the
Company and its subsidiaries.
(6) The Company and each of its subsidiaries have filed all
necessary federal, state and local income, franchise and other material
tax returns and have paid all taxes shown as due thereunder, and the
Company has no knowledge of any tax deficiency which might be assessed
against the Company which, if so assessed, may have a Materially
Adverse Effect.
(7) The Company and each of its subsidiaries maintain insurance
of the types and in amounts which they reasonably believe to be
adequate for their business in such amounts and with such deductibles
as is customary for companies in the same or similar business, all of
which insurance is in full force and effect.
(8) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), there is no pending action, suit, proceeding or
investigation or, to the Company's best knowledge, threatened action,
suit, proceeding or investigation before or by any court, regulatory
body or administrative agency or any other governmental agency or body,
domestic or foreign, which (A) questions the validity of the capital
stock of the Company, or this Agreement, or of
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any action taken or to be taken by the Company, pursuant to or in
connection with this Agreement, (B) is required to be disclosed in the
Registration Statement which is not so disclosed (and such proceedings,
if any, as are summarized in the Registration Statement or incorporated
therein by reference are accurately summarized in all [material]
respects), or (C)may have a Material Adverse Effect.
(9) The Company has full legal right, power and authority to
enter into this Agreement and to consummate the transactions provided
for herein. This Agreement has been duly authorized, executed and
delivered by the Company and, assuming it is a binding agreement of
yours, constitutes a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms (except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general
application relating to or affecting the enforcement of creditors'
rights and the application of equitable principles relating to the
availability of remedies and except as rights to indemnity or
contribution may be limited by federal or state securities laws and the
public policy underlying such laws), and none of the Company's
execution or delivery of this Agreement, its performance hereunder, its
consummation of the transactions contemplated herein, its application
of the net proceeds of the offering in the manner set forth under the
caption "Use of Proceeds" or the conduct of its business as described
in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), conflicts or will conflict with, or
results or will result in any breach or violation of any of the terms
or provisions of, or constitutes or will constitute a default under,
causes or will cause (or permits or will permit) the maturation or
acceleration of any liability or obligation or the termination of any
right under, or result in the creation or imposition of any lien,
charge, or encumbrance upon, any property or assets of the Company or
any of its subsidiaries pursuant to the terms of (A) the certificate of
incorporation or bylaws of the Company or any of its subsidiaries, (B)
any indenture, mortgage, deed of trust, voting trust agreement,
stockholders' agreement, note agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party,
or by which any of them are or may be bound, or to which any of their
respective property is or may be subject or (C) any statute, judgment,
decree, order, rule or regulation applicable to the Company [or any of
its Subsidiaries] of any government, arbitrator, court, regulatory body
or administrative agency or other governmental agency or body, domestic
or foreign, having jurisdiction over the Company, any of its
subsidiaries or any of their respective activities or properties.
(10) All executed agreements or copies of executed agreements
filed or incorporated by reference as exhibits to the Registration
Statement to which the Company or any of its subsidiaries is a party,
or by which any of them are or may be bound, or to which any of their
assets, properties or businesses is or may be subject, have been duly
and validly authorized, executed and delivered by the Company or such
subsidiary, as the case may be, and constitute the legal, valid and
binding agreements of the Company or such [S]ubsidiary, as the case may
be, enforceable against each of them in accordance with their
respective terms (except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
relating to enforcement of
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creditors'rights generally, and general equitable principles relating
to the availability of remedies, and except as rights to indemnity or
contribution may be limited by federal or state securities laws and the
public policy underlying such laws). The descriptions in the
Registration Statement or incorporated therein by reference of
contracts and other documents are accurate and fairly present the
information required to be shown with respect thereto by the Act and
the Rules and Regulations, and there are no contracts or other
documents which are required by the Act or the Rules and Regulations to
be described in the Registration Statement or filed as exhibits to the
Registration Statement which are not described or filed as required or
incorporated therein by reference, and the exhibits which have been
filed are complete and correct copies of the documents of which they
purport to be copies.
(11) Subsequent to the most recent respective dates as of which
information is given in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), and except as
expressly contemplated therein, neither the Company nor any of its
subsidiaries has incurred, other than in the ordinary course of its
business, any material liabilities or obligations, direct or
contingent, purchased any of its outstanding capital stock, paid or
declared any dividends or other distributions on its capital stock or
entered into any material transactions not in the ordinary course of
business, and there has been no material change in capital stock or
debt or any material adverse change in the business, properties,
assets, net worth, condition (financial or other), or results of
operations or prospects of the Company and its subsidiaries taken as a
whole. Neither the Company nor any of its subsidiaries (or the manner
in which it or any of them conducts its business) is in breach or
violation of, or in default under, any term or provision of (A) its
certificate of incorporation or bylaws, (B) any indenture, mortgage,
deed of trust, voting trust agreement, stockholders' agreement, note
agreement or other agreement or instrument to which it is a party or by
which it is or may be bound or to which any of its property is or may
be subject, or any indebtedness, the effect of which breach or default
singly or in the aggregate may have a Material Adverse Effect, or (C)
any statute, judgment, decree, order, rule or regulation applicable to
the Company or any of its subsidiaries or of any arbitrator, court,
regulatory body, administrative agency or any other governmental agency
or body, domestic or foreign, having jurisdiction over the Company or
any of its subsidiaries, or any of their respective activities or
properties, and the effect of which breach or default, singly or in the
aggregate, may have a Material Adverse Effect.
(12) No labor disturbance by the employees of the Company or
any of its subsidiaries exists or is imminent, which may have a
Material Adverse Effect.
(13) Since its inception, the Company has not incurred any
material liability arising under or as a result of the application of
the provisions of the Act. (1)
(14) No consent, approval, authorization or order of or filing
with any court, regulatory body, administrative agency or any other
governmental agency or body, domestic or foreign, is required for the
performance of this Agreement or the
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consummation of the transactions contemplated hereby, except such as
have been or may be obtained under the Act, or may be required under
state securities or Blue Sky laws, in connection with the Underwriters'
purchase and distribution of the Shares.
(15) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act,
with respect to any securities of the Company owned or to be owned, by
such person or to require the Company to include such securities under
the Registration Statement (other than those that have been disclosed
in the Prospectus or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), that have not been waived with respect
to the Registration Statement.
(16) Neither the Company nor any of its officers, directors or
affiliates (within the meaning of the Rules and Regulations) has taken,
directly or indirectly, any action designed to stabilize or manipulate
the price of any security of the Company, or which has constituted or
which might in the future reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company, to facilitate the sale or resale of the Shares or otherwise.
(17) Each of the Company and its subsidiaries has good and
marketable title to, or valid and enforceable leasehold interests in,
all properties and assets owned or leased by it, free and clear of all
liens, encumbrances, security interests, claims, restrictions,
equities, claims and defects, except (A) such as are described in the
Registration Statement and Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), or such as do not
materially adversely affect the value of any of such properties or
assets taken as a whole, and do not materially interfere with the use
made and proposed to be made of any of such properties or assets, and
(B) liens for taxes not yet due and payable, as to which appropriate
reserves have been established and reflected in the financial
statements included or incorporated by reference in the Registration
Statement. The Company owns or leases all such properties as are
necessary to its operations as now conducted, and as proposed to be
conducted, as set forth in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus); and the properties and business of the Company
and its subsidiaries conform in all material respects to the
descriptions thereof, contained in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). All the material leases and subleases of the
Company and its subsidiaries, and under which the Company or any
subsidiary holds properties or assets as lessee or sublessee,
constitute valid leasehold interests of the Company or such subsidiary,
free and clear of any lien, encumbrance, security interest,
restriction, equity, claim or defect, are in full force and effect, and
neither the Company nor any subsidiary is in default, in respect of any
of the material terms or provisions of any such material leases or
subleases, and neither the Company nor any subsidiary has notice of any
claim which has been asserted by anyone adverse to the Company's or any
of its subsidiary's rights as lessee or sublessee under either the
material lease or sublease, or affecting or questioning the Company's
or any subsidiary's right to the continued
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possession of the leased or subleased premises under any such material
lease or sublease, which may have a Material Adverse Effect.
(18) Neither the Company, nor any subsidiary, has violated any
applicable environmental, safety, health or similar law, applicable to
the business of the Company, nor any federal or state law, relating to
discrimination in the hiring, promotion, or pay of employees, nor any
applicable federal or state wages and hours law, nor any provisions of
ERISA or the rules and regulations promulgated thereunder, the
consequences of which violation may have a Material Adverse Effect.
(19) Each of the Company and its subsidiaries holds all
franchises, licenses, permits, approvals, certificates and other
authorizations from federal, state and other governmental or regulatory
authorities necessary to the ownership, leasing and operation of its
properties or required for the present conduct of its business, and
such franchises, licenses, permits, approvals, certificates and other
governmental authorizations are in full force and effect, and the
Company and its subsidiaries are in compliance therewith, in all
material respects except where the failure so to obtain, maintain or
comply with, would not have a Material Adverse Effect.
[IF THE COMPANY HAS MATERIAL SUBSIDIARIES THAT CONDUCT BUSINESS,
INSERT - (i) No Subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such Subsidiary's capital stock, from
repaying to the Company, any loans or advances to such Subsidiary, from
the Company or from transferring any of such Subsidiary's property or
assets to the Company or any other Subsidiary of the Company, except as
described in or contemplated by the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus).]
[IF FORM S-2 OR S-3, INSERT - [(ii)] The Company meets the
requirements for use of Form [S-2] [S-3] under the Rules and
Regulations.]
(a) [Each] [The] Selling Stockholder [IF MORE THAN ONE SELLING
STOCKHOLDER, INSERT - severally] represents and warrants to, and agrees with,
the several Underwriters that:
(20) [Such] [The] Selling Stockholder has full legal right,
power and authority to enter into this Agreement [IF MORE THAN ONE
SELLING STOCKHOLDER, INSERT -, the Power of Attorney in the form
heretofore furnished to you (the "Power of Attorney") and the Custody
Agreement in the form heretofore furnished to you (the "Custody
Agreement")]1. [IF MORE THAN ONE SELLING STOCKHOLDER, INSERT - [Each
of]] [T]his Agreement [IF MORE THAN ONE SELLING STOCKHOLDER, INSERT -,
the Power of Attorney and the Custody Agreement] has been duly executed
and delivered by [such] [the] Selling
--------
1 Depending on the facts and circumstances, a Power of Attorney and
Custody Agreement might be used with a single Selling Stockholder.
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Stockholder, and (assuming this Agreement is a binding agreement of
yours) constitutes the valid and binding agreement of [such] [the]
Selling Stockholder, enforceable against [such] [the] Selling
Stockholder, in accordance with its [their respective] terms (except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general
application relating to or affecting the enforcement of creditor's
rights, and the application of equitable principles relating to the
availability of remedies, and except as rights to indemnity or
contribution may be limited by federal or state securities law and the
public policy underlying such laws).
(21) None of the execution, delivery or performance of this
Agreement [IF MORE THAN ONE SELLING STOCKHOLDER, INSERT -, the Power of
Attorney and the Custody Agreement] and the consummation of the
transactions herein [IF MORE THAN ONE SELLING STOCKHOLDER, INSERT - and
therein] contemplated, will conflict with or result in a breach of, or
default under, any indenture, mortgage, deed of trust, voting trust
agreement, stockholders' agreement, note agreement, or other agreement
or instrument to which [such] [the] Selling Stockholder is a party, or
by which [such] [the] Selling Stockholder is or may be bound, or to
which any of his or its property is or may be subject, or any statute,
judgment, decree, order, rule or regulation applicable to [such] [the]
Selling Stockholder of any government, arbitrator, court, regulatory
body or administrative agency or other governmental agency or body,
domestic or foreign, having jurisdiction over [such] [the] Selling
Stockholder or any of his activities or properties.
(22) At the date hereof, [such] [the] Selling Stockholder has,
and at the time of delivery of the Shares to be sold by [such] [the]
Selling Stockholder to the several Underwriters, [such] [the] Selling
Stockholder will have, full right, power and authority to sell, assign,
transfer and deliver the Shares to be sold by [such] [the] Selling
Stockholder hereunder. At the date hereof, [such] [the] Selling
Stockholder is, and at the time of delivery of the Shares to be sold by
[such] [the] Selling Stockholder, [such] [the] Selling Stockholder will
be, the lawful owner of and has and will have, good and marketable
title to such Shares free and clear of any liens, encumbrances,
security interests, claims, community property rights, restrictions on
transfer or other defects in title. Upon delivery of and payment for
the Shares to be sold by [such] [the] Selling Stockholder hereunder,
good and marketable title to such Shares, will pass to the
Underwriters, free and clear of any liens, encumbrances, security
interests, claims, community property rights, restrictions on transfer
or other defects in title. Except as described in the Registration
Statement and the Prospectus (or, if there is no Prospectus, the most
recent Preliminary Prospectus) or created hereby, there are no
outstanding options, warrants, rights, or other agreements or
arrangements requiring [such] [the] Selling Stockholder at any time to
transfer any Common Stock to be sold hereunder by [such] [the] Selling
Stockholder.
(23) At the time when the Registration Statement becomes or
became effective, and at all times subsequent thereto, up to and
including the Closing Date and the Option Closing Date, the
Registration Statement and any amendments thereto, will not contain any
untrue statement of a material fact regarding [such] [the] Selling
Stockholder, or omit to state a material fact regarding [such] [the]
Selling
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Stockholder, required to be stated therein or necessary, in order to
make the statements therein regarding [such] [the] Selling Stockholder
not misleading, and the Prospectus (and any supplements thereto) (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus) will not contain any untrue statement of a material fact
regarding [such] [the] Selling Stockholder, or omit to state a material
fact regarding [such] [the] Selling Stockholder, required to be stated
therein or necessary, in order to make the statements therein regarding
[such] [the] Selling Stockholder, in light of the circumstances under
which they were made, not misleading, and [such] [the] Selling
Stockholder is unaware of any material misstatement in, or omission
from the Registration Statement or the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus)
or of any material adverse information regarding the business or
operations of the Company [or its Subsidiaries], which is not set forth
in the Registration Statement and the Prospectus (or, if the Prospectus
is not then in existence, in the most recent Preliminary Prospectus).
(24) [Such] [The] Selling Stockholder has not taken, directly
or indirectly, any action designed to stabilize or manipulate the price
of any security of the Company, or which has constituted, or which
might in the future reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company, to facilitate the sale or resale of the Shares or otherwise.
(25) Nothing has come to the attention of [such] [the] Selling
Stockholder to cause [the] [each] Selling Stockholder to believe that
the Company's representations and warranties contained in this
Agreement are not accurate.
(26) There is not pending or threatened against [such] [the]
Selling Stockholder, any action, suit or proceeding which (A) questions
the validity of this Agreement or of any action taken or to be taken by
[such] [the] Selling Stockholder, pursuant to or in connection with
this Agreement, or (B) is required to be disclosed in the Registration
Statement, which is not so disclosed, and such actions, suits or
proceedings, as are summarized in the Registration Statement, if any,
are accurately summarized.
[IF ONE SELLING STOCKHOLDER, USE FIRST SECTION 3.
IF MORE THAN ONE, USE SECOND.]
3. PURCHASE, SALE AND DELIVERY OF THE SHARES. On the basis of the
representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, (A) the Company agrees to
sell to each Underwriter, and each Underwriter, severally and not jointly,
agrees to purchase from the Company at a purchase price of $_______________ per
Share, the number of Firm Shares set forth opposite the name of such Underwriter
in Column (1) of Schedule I hereto and (B) the Selling Stockholder agrees to
sell to each Underwriter, and each Underwriter, severally and not jointly,
agrees to purchase from the Selling Stockholder at a purchase price per Share of
$______________, the number of Firm Shares set forth opposite the name of such
Underwriter in Column (2) of Schedule I hereto.
11
<PAGE> 12
Delivery of certificates, and payment of the purchase price, for the
Firm Shares shall be made at the offices of Stifel, Nicolaus & Company,
Incorporated, 501 North Broadway, St. Louis, Missouri 63102, or such other
location as shall be agreed upon by the Company and the Representative[s]. Such
delivery and payment shall be made at 10:00 a. m., New York City time, on
____________,199_2 or at such other time and date not more than ten business
days thereafter, as shall be agreed upon by the Representative[s] and the
Company. The time and date of such delivery and payment are herein called the
"Closing Date." Delivery of the certificates for the Firm Shares shall be made
to the Representative[s] for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representative[s] of the
purchase price for the Firm Shares, by certified or official bank checks, in New
York Clearing House (next day) funds drawn to the order of the Company in the
case of the Firm Shares sold by it and [INSERT NAME OF SELLING STOCKHOLDER] in
the case of the Firm Shares sold by the Selling Stockholder. The certificates
for the Shares to be so delivered will be in definitive, fully registered form,
will bear no restrictive legends and will be in such denominations and
registered in such names as the Representative[s] shall request, not less than
two full business days prior to the Closing Date. The certificates for the Firm
Shares will be made available to the Representative[s] at such office or such
other place as the Representative[s] may designate for inspection, checking and
packaging not later than 9:30 a.m., New York time on the business day prior to
the Closing Date.
4. PURCHASE, SALE AND DELIVERY OF THE SHARES. On the basis of the
representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, (A) the Company agrees to
sell to each Underwriter, and each Underwriter, severally and not jointly,
agrees to purchase from the Company at a purchase price of $___________ per
Share, the number of Firm Shares set forth opposite the name of such Underwriter
in Column (1) of Schedule I hereto and (B) each Selling Stockholder, severally
and not jointly, agrees to sell to each Underwriter, and each Underwriter,
severally and not jointly, agrees to purchase from such Selling Stockholder at
the same purchase price per Share, the number of Firm Shares equal to the number
of Firm Shares set forth, opposite the name of such Underwriter in Column (2) of
Schedule I, multiplied by the number of Firm Shares set forth, opposite the name
of such Selling Stockholder in Column (1) of Schedule II and divided by the
total number of Firm Shares to be sold by all Selling Stockholders, in each case
subject to such adjustments to eliminate any fractional shares as the
Representative[s], in their sole discretion, shall make.
Certificates in negotiable form (endorsed in blank or accompanied by
stock powers in blank, with signatures appropriately guaranteed, and any funds
necessary for the purchase of stock transfer stamps) representing all of the
Shares to be sold by the Selling Stockholders, have been placed in custody under
a Custody Agreement, and each Selling Stockholder has duly executed and
delivered a Power of Attorney appointing [_______________________] and
--------
2 Customary for closing to occur five business days after pricing.
12
<PAGE> 13
[______________], and each of them, as such Selling Stockholder's
attorney-in-fact (the "Attorney-in-Fact"), with authority to execute this
Agreement and to deliver this Agreement on behalf of such Selling Stockholder,
to authorize the delivery of the Shares to be sold by such Selling Stockholder
hereunder, and otherwise to act on behalf of such Selling Stockholder in
connection with the transactions contemplated by this Agreement and the Custody
Agreement. Each Selling Stockholder agrees that the shares represented by the
certificates held in custody for such Selling Stockholder under Custody
Agreement are subject to the interests of the Underwriters hereunder and
arrangements made by such Selling Stockholder for such custody, as well as the
appointment by such Selling Stockholder of the Attorney-in-Fact, are, to that
extent, irrevocable. Each Selling Stockholder specifically agrees that the
obligations of such Selling Stockholder hereunder, shall not be terminated,
except as otherwise provided herein, by any act of such Selling Stockholder,
operation of law, or otherwise, whether by the death or incapacity of such
Selling Stockholder, if an individual, or by the occurrence of any other event.
If any Selling Stockholder, if an individual, should die or become
incapacitated, or if any other such event should occur before the delivery of
the Shares hereunder, certificates representing the shares held in custody for
Selling Stockholder, shall be delivered pursuant to the terms and conditions of
this Agreement and the Custody Agreement, and the actions taken by the
Attorney-in-Fact, pursuant to the Power of Attorney shall be as valid as if such
death, incapacity or other event had not occurred, whether or not the Custodian
or the Attorneys-in-Fact shall have received notice of such death, incapacity or
other event.
Delivery of certificates, and payment of the purchase price, for the
Firm Shares shall be made at the offices of Stifel Nicolaus & Company,
Incorporated at 501 North Broadway, St. Louis, Missouri 63102, or such other
location as shall be agreed upon by the Company and the Representative[s]. Such
delivery and payment shall be made at 10:00 a.m., New York City time, on
_____________, 200_3 or at such other time and date, not more than ten business
days thereafter, as shall be agreed upon by the Representative[s] and the
Company. The time and date of such delivery and payment are herein called the
"Closing Date."
Delivery of the certificates for the Firm Shares shall be made to the
Representative[s] for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representative[s] of the
purchase price for the Firm Shares by certified or official bank checks in New
York Clearing House (next day) funds drawn to the order of the Company in the
case of Firm Shares sold by it and the Custodian in the case of Firm Shares sold
by the Selling Stockholders. The certificates for the Firm Shares to be so
delivered will be in definitive, fully registered form, will bear no restrictive
legends and will be in denominations and registered in such names as the
Representative[s] shall request, not less than two full business days prior to
the Closing Date. The certificates for the Firm Shares will be made available to
the Representative[s] at such office or such other place as the
Representative[s] may designate for inspection, checking and packaging not later
than 9:30 a.m., New York time on the business day prior to the Closing Date.
--------
3 See footnote 3.
13
<PAGE> 14
5. PUBLIC OFFERING OF THE SHARES. It is understood that the
Underwriters propose to make a public offering of the Shares at the price and
upon the other terms set forth in the Prospectus.
6. COVENANTS OF THE COMPANY AND THE SELLING STOCKHOLDER[S].
(1) The Company covenants and agrees with each of the Underwriters
that:
(1) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of
this Agreement, and any amendments thereto to become effective as
promptly as practicable. If required, the Company will file the
Prospectus and any amendment or supplement thereto with the Commission
in the manner and within the time period required by Rule 424(b) under
the Act. During any time when a prospectus relating to the Shares is
required to be delivered under the Act, the Company (A) will comply
with all requirements imposed upon it by the Act and the Rules and
Regulations to the extent necessary to permit the continuance of sales
of or dealings in the Shares in accordance with the provisions hereof
and of the Prospectus, as then amended or supplemented, and (B) will
not file with the Commission the prospectus or the amendment referred
to in the third sentence of Section 2(a)(i) hereof, any amendment or
supplement to such prospectus or any amendment to the Registration
Statement of which the Representative[s] shall not previously have been
advised and furnished with a copy a reasonable period of time prior to
the proposed filing and as to which filing the Representative[s] shall
not have given [its] [their] consent.
(2) As soon as the Company is advised or obtains knowledge
thereof, the Company will advise the Representative[s] (A) when the
Registration Statement, as amended, has become effective; if the
provisions of Rule 430A promulgated under the Act will be relied upon,
when the Prospectus has been filed in accordance with said Rule 430A
and when any post-effective amendment to the Registration Statement
becomes effective; (B) of any request made by the Commission for
amending the Registration Statement, for supplementing any Preliminary
Prospectus or the Prospectus or for additional information, or (C) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective
amendment thereto or any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto or the institution or threat of any investigation or proceeding
for that purpose, and will use its best efforts to prevent the issuance
of any such order and, if issued, to obtain the lifting thereof as soon
as possible.
(3) The Company will (A) use its best efforts to arrange for the
qualification of the Shares for offer and sale under the state
Securities or blue sky laws of such jurisdictions as the
Representative[s] may designate, (B) continue such qualifications in
effect for as long as may be necessary to complete the distribution of
the Shares, and (C) make such applications, file such documents and
furnish such
14
<PAGE> 15
information as may be required for the purposes set forth in clauses
(A) and (B); provided, however, that the Company shall not be required
to qualify as a foreign corporation or file a general or unlimited
consent to service of process in any such jurisdiction.
(4) The Company consents to the use of the Prospectus (and any
amendment or supplement thereto) by the Underwriters and all dealers to
whom the Shares may be sold, in connection with the offering or sale of
the Shares and for such period of time thereafter as the Prospectus is
required by law to be delivered in connection therewith. If, at any
time when a prospectus relating to the Shares is required to be
delivered under the Act, any event occurs as a result of which the
Prospectus, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein not misleading, or if it becomes
necessary at any time to amend or supplement the Prospectus to comply
with the Act or the Rules and Regulations, the Company promptly will so
notify the Representative[s] and, subject to Section 5(a)(i) hereof,
will prepare and file with the Commission an amendment to the
Registration Statement or an amendment or supplement to the Prospectus
which will correct such statement or omission or effect such
compliance, each such amendment or supplement to be reasonably
satisfactory to counsel to the Underwriters.
(5) As soon as practicable, but in any event not later than 45
days after the end of the 12-month period beginning on the day after
the end of the fiscal quarter of the Company during which the effective
date of the Registration Statement occurs (90 days in the event that
the end of such fiscal quarter is the end of the Company's fiscal
year), the Company will make generally available to its security
holders, in the manner specified in Rule 158(b) of the Rules and
Regulations, and to the Representative[s], an earnings statement which
will be in the detail required by, and will otherwise comply with, the
provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and
Regulations, which statement need not be audited unless required by the
Act or the Rules and Regulations, covering a period of at least 12
consecutive months after the effective date of the Registration
Statement.
(6) During a period of five years after the date hereof, the
Company will furnish to its stockholders, as soon as practicable,
annual reports (including financial statements audited by independent
public accountants) and unaudited quarterly reports of earnings, and
will deliver to the Representative[s]:
(1) concurrently with furnishing such quarterly reports to
its stockholders, statements of income of the Company for each
quarter in the form furnished to the Company's stockholders and
certified by the Company's principal financial or accounting
officer;
(2) concurrently with furnishing such annual reports to its
stockholders, a balance sheet of the Company as at the end of the
preceding fiscal
15
<PAGE> 16
year, together with statements of operations, stockholders' equity,
and cash flows of the Company for such fiscal year, accompanied by a
copy of the report thereon of independent public accountants;
(3) as soon as they are available, copies of all information
(financial or other) mailed to stockholders;
(4) as soon as they are available, copies of all reports and
financial statements furnished to or filed with the Commission, the
National Association of Securities Dealers, Inc. ("NASD") or any
securities exchange;
(5) every press release and every material news item or
article of interest to the financial community in respect of the
Company or its affairs which was released or prepared by the
Company; and
(6) any additional information of a public nature concerning
the Company or its business which the Representative[s] may
reasonably request.
During such five-year period, if the Company has active
subsidiaries, the foregoing financial statements will be on a consolidated basis
to the extent that the accounts of the Company and its subsidiaries are
consolidated, and will be accompanied by similar financial statements for any
significant subsidiary which is not so consolidated.
(7) The Company will maintain a Transfer Agent and, if
necessary under the jurisdiction of incorporation of the Company, a
Registrar (which may be the same entity as the Transfer Agent) for
its Common Stock.
(8) The Company will furnish, without charge, to the
Representative[s] or on the Representative['s][s']order, at such
place as the Representative[s] may designate, copies of each
Preliminary Prospectus, the Registration Statement and any
pre-effective or post-effective amendments thereto (two of which
copies will be signed and will include all financial statements and
exhibits) and the Prospectus, and all amendments and supplements
thereto, in each case as soon as available and in such quantities as
the Representative[s] may reasonably request. [IF THE SHARES ARE THE
FIRST SECURITIES OF THE COMPANY TO HAVE BEEN REGISTERED UNDER THE
ACT, INSERT - The Company will provide or cause to be provided to
the Representative[s] and upon request to each Underwriter, a copy
of the report on Form SR filed by the Company as required by Rule
463 under the Act.]
(9) The Company will not, directly or indirectly, without
the prior written consent of the Representative[s], issue, offer,
sell, grant any option to purchase or otherwise dispose (or announce
any issuance, offer, sale, grant of any option to purchase or other
disposition) of any shares of Common Stock or any securities
convertible into, or
16
<PAGE> 17
exchangeable or exercisable for, shares of Common Stock for a period
of ___4 days after the date hereof, except pursuant to this
Agreement [, except for issuances pursuant to the exercise of stock
options outstanding on or granted subsequent to the date hereof,
pursuant to a stock option or other employee benefit plan in
existence on the date hereof and except as contemplated by the
Prospectus.
(10) The Company will [IF THE COMPANY IS NOT RELYING UPON
LISTING OR QUOTATION FOR BLUE SKY PURPOSES, CONSIDER INSERTING - use
its best efforts to] cause the Shares to be duly [authorized for
listing on The Stock Exchange] [included for quotation on the
National Association of Securities Dealers Automated Quotations
[National Market] System] prior to the Closing Date.]
(11) Neither the Company nor any of its officers or
directors, nor affiliates of any of them (within the meaning of the
Rules and Regulations) will take, directly or indirectly, any action
designed to, or which might in the future reasonably be expected to
cause or result in, stabilization or manipulation of the price of
any securities of the Company.
(12) The Company will apply the net proceeds of the offering
received by it in the manner set forth under the caption ["Use of
Proceeds"] in the Prospectus.
(13) The Company will timely file all such reports, forms or
other documents as may be required from time to time, under the Act,
the Rules and Regulations, the Exchange Act, and the rules and
regulations thereunder, and all such reports, forms and documents
filed will comply as to form and substance with the applicable
requirements under the Act, the Rules and Regulations, the Exchange
Act and the rules and regulations thereunder.
(2) Each Selling Stockholder covenants and agrees with each of
the Underwriters that:
(1) Each Selling Stockholder will not, directly or
indirectly, without the prior written consent of the Representative,
offer, sell, grant any option to purchase or otherwise dispose (or
announce any offer, sale, grant of any option to purchase or other
disposition) of any shares of Common Stock or any securities
convertible into, or exchangeable or exercisable for, shares of
Common Stock for a period of 6 months after the date hereof, except
pursuant to this Agreement and except as contemplated by the
--------
4 Lock-ups vary in length based on circumstances and negotiations, and
are sometimes as long as 365 days in initial public offerings, but
more typically range from 90 to 180 days.
17
<PAGE> 18
Prospectus, and will not take, directly or indirectly, any action
designed to, or which might in the foreseeable future reasonably be
expected to cause or result in, stabilization of manipulation of the
price of any securities of the Company.
(2) Each Selling Stockholder consents to the use of the
Prospectus and any amendment or supplement thereto by the
Underwriters and all dealers to whom the Shares may be sold, both in
connection with the offering or sale of the Shares and for such
period of time thereafter as the Prospectus is required by law to be
delivered in connection therewith.
7. EXPENSES.
(1) Regardless of whether the transactions contemplated in this
Agreement are consummated, and regardless of whether for any reason this
Agreement is terminated, the Company and the Selling Stockholders will pay, and
hereby agree to indemnify each Underwriter against, all fees and expenses
incident to the performance of the obligations of the Company and the Selling
Stockholders under this Agreement, including, but not limited to, (i) fees and
expenses of accountants and counsel for the Company and the Selling
Stockholders, (ii) all costs and expenses incurred in connection with the
preparation, duplication, printing, filing, delivery and shipping of copies of
the Registration Statement and any pre-effective or post-effective amendments
thereto, any Preliminary Prospectus and the Prospectus and any amendments or
supplements thereto (including postage costs related to the delivery by the
Underwriters of any Preliminary Prospectus or Prospectus, or any amendment or
supplement thereto), this Agreement, the Agreement Among Underwriters, any
Selected Dealer Agreement, Underwriters' Questionnaire, Underwriters' Power of
Attorney, Custody Agreement and Selling Stockholders' Power of Attorney and all
other documents in connection with the transactions contemplated herein,
including the cost of all copies thereof, (iii) fees and expenses relating to
qualification of the Shares under state securities or blue sky laws, including
the cost of preparing and mailing the preliminary and final blue sky memoranda
and filing fees and disbursements and fees of counsel and other related
expenses, if any, in connection therewith, (iv) filing fees of the Commission
and the NASD relating to the Shares, (v) any fees and expenses in connection
with the quotation of the Shares on the National Association of Securities
Dealers Automated Quotations National Market System, (vi) costs and expenses
incident to the preparation, issuance and delivery to the Underwriters of any
certificates evidencing the Shares, including transfer agent's and registrar's
(1) fees and any applicable transfer taxes incurred in connection with the
delivery to the Underwriters of the Shares to be sold by the Company and the
Selling Stockholders pursuant to this Agreement, (vii) costs and expenses
incident to any meetings with prospective investors in the Shares (other than as
shall have been specifically approved by the Representatives to be paid for by
the Underwriters) and (viii) costs and expenses of advertising relating to the
offering of the Shares (other than as shall have been specifically approved by
the Representatives to be paid for by the Underwriters).
(2) If the purchase of the Shares as herein contemplated is not
consummated for any reason other than the Underwriters' default under this
Agreement or other than by reason of Section 11(a), the Company and the Selling
Stockholders shall reimburse the several
18
<PAGE> 19
Underwriters for their out-of-pocket expenses (including reasonable counsel fees
and disbursements) in connection with any investigation made by them, and any
preparation made by them in respect of marketing of the Shares or in
contemplation of the performance by them of their obligations hereunder.
8. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligation
of each Underwriter to purchase and pay for the Shares set forth opposite the
name of such Underwriter in Schedule I is subject to the continuing accuracy of
the representations and warranties of the Company and the Selling Stockholders
herein as of the date hereof and as of the Closing Date as if they had been made
on and as of the Closing Date; the accuracy on and as of the Closing Date of the
statements of officers of the Company and the Selling Stockholders made pursuant
to the provisions hereof; the performance by the Company and the Selling
Stockholders on and as of the Closing Date of their respective covenants and
agreements hereunder; and the following additional conditions:
(1) If the Company has elected to rely on Rule 430A under the
Act, the Registration Statement shall have been declared effective, and the
Prospectus (containing the information omitted pursuant to Rule 430A) shall have
been filed with the Commission not later than the Commission's close of business
on the second business day following the date hereof or such later time and date
to which the Representative shall have consented; if the Company does not elect
to rely on Rule 430A, the Registration Statement shall have been declared
effective not later than 1l:00 A.M., New York time, on the date hereof or such
later time and date to which the Representative shall have consented; if
required, in the case of any changes in or amendments or supplements to the
Prospectus in addition to those contemplated above, the Company shall have filed
such Prospectus as amended or supplemented with the Commission in the manner and
within the time period required by Rule 424(b) under the Act; no stop order
suspending the effectiveness of the Registration Statement or any amendment
thereto shall have been issued, and no proceedings for that purpose shall have
been instituted or threatened or, to the knowledge of the Company or the
Representative, shall be contemplated by the Commission; and the Company shall
have complied with any request of the Commission for additional information (to
be included in the Registration Statement or the Prospectus or otherwise).
(2) The Representative shall not have advised the Company
that the Registration Statement, or any amendment thereto, contains an untrue
statement of fact which, in the Representative's opinion, is material, or omits
to state a fact which, in the Representative's opinion, is material and is
required to be stated therein or is necessary to make the statements therein not
misleading, or that the Prospectus, or any supplement thereto, contains an
untrue statement of fact which, in the Representative's opinion, is material, or
omits to state a fact which, in the Representative's opinion, is material and is
required to be stated therein or is necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(3) On or prior to the Closing Date, the Representative shall
have received from counsel to the Underwriters, such opinion or opinions with
respect to the issuance and sale of the Firm Shares, the Registration Statement
and the Prospectus and such other related matters
19
<PAGE> 20
as the Representative reasonably may request and such counsel shall have
received such documents and other information as they request to enable them to
pass upon such matters.
(4) On the Closing Date the Underwriters shall have received
the opinion, dated the Closing Date, of ___________, counsel (" Company
Counsel"), to the effect set forth below:
(1) Each of the Company and each of its subsidiaries (A) is
a duly incorporated and validly existing corporation in good standing
under the laws of its jurisdiction of incorporation with full power and
authority (corporate and other) to own or lease its properties and to
conduct its business as described in the Prospectus, and (B) is duly
qualified to do business as a foreign corporation and is in good
standing in each jurisdiction (x) in which the conduct of its business
requires such qualification (except for those jurisdictions in which
the failure so to qualify can be cured without having a Material
Adverse Effect) and (y) in which it owns or leases property;
(2) The Company has authorized capital stock as set forth in
the Prospectus; the securities of the Company conform in all material
respects to the description thereof contained in the Prospectus; the
outstanding shares of Common Stock have been duly authorized and
validly issued by the Company, are fully paid and nonassessable, and
are free of any preemptive or other rights to subscribe for any of the
Shares; the Company has duly authorized the issuance and sale of the
Shares to be sold by it hereunder; such Shares, when issued by the
Company and paid for in accordance with the terms hereof, will be
validly issued, fully paid and nonassessable and will conform in all
material respects to the description thereof contained in the
Prospectus and will not be subject to any preemptive, subscription or
other similar rights; and the Shares have been duly authorized for
quotation on the National Association of Securities Dealers Automated
Quotation National Market System;
(3) The Registration Statement is effective under the Act;
any required filing of the Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b);
and no stop order suspending the effectiveness of the Registration
Statement or any amendment thereto has been issued, and no proceedings
for that purpose have been instituted or are pending or, to the best
knowledge of such counsel, are threatened or contemplated under the
Act; the registration statement originally filed with respect to the
Shares and each amendment thereto and the Prospectus and, if any, each
amendment and supplement thereto (except for the financial statements,
schedules and other financial data included therein, as to which such
counsel need not express any opinion), complied as to form in all
material respects with the requirements of the Act and the Rules and
Regulations; the descriptions contained and summarized in the
Registration Statement and the Prospectus of contracts and other
documents, are accurate and fairly represent in all material respects
the information required to be shown by the Act and the Rules and
Regulations; to the best knowledge of such counsel, there are no
contracts or documents which are required by the Act to be described in
the Registration Statement or the Prospectus or to be filed as exhibits
to the Registration
20
<PAGE> 21
Statement which are not described or filed as required by the Act and
the Rules and Regulations; to the best knowledge of such counsel, there
is not pending or threatened against the Company any action, suit,
proceeding or investigation before or by any court, regulatory body, or
administrative agency or any other governmental agency or body,
domestic or foreign, of a character required to be disclosed in the
Registration Statement or the Prospectus which is not so disclosed
therein; and the statements set forth under the headings [INSERT
CAPTIONS OF THE PROSPECTUS DESCRIBING MATERIAL LITIGATION, REGULATORY
MATTERS, ETC., AS APPROPRIATE] in the Prospectus, insofar as such
statements constitute a summary of the legal matters, documents or
proceedings referred to therein, provide an accurate summary of such
legal matters, documents and proceedings;
(4) The Company has full legal right, power, and authority
to enter into this Agreement and to consummate the transactions
provided for herein; this Agreement has been duly authorized, executed
and delivered by the Company; and this Agreement, assuming due
authorization, execution and delivery by each other party hereto, is a
valid and binding agreement of the Company, enforceable in accordance
with its terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws now or hereafter in effect
relating to or affecting creditors' rights generally or by general
principles of equity relating to the availability of remedies and
except as rights to indemnity and contribution may be limited by
federal or state securities laws or the public policy underlying such
laws. None of the Company's execution or delivery of this Agreement,
its performance hereof, its consummation of the transactions
contemplated herein or its application of the net proceeds of the
offering in the manner set forth under the caption "Use of Proceeds",
conflicts or will conflict with or results or will result in any breach
or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon, any property or assets of the Company or
any of its subsidiaries pursuant to the terms of the certificate of
incorporation or by-laws of the Company or any of its subsidiaries; the
terms of any indenture, mortgage, deed of trust, voting trust
agreement, stockholder's agreement, note agreement or other agreement
or instrument known to such counsel after reasonable investigation to
which the Company or any of its subsidiaries is a party or by which it
or any of its subsidiaries is or may be bound or to which any of their
respective properties may be subject; any statute, rule or regulation
of any regulatory body or administrative agency or other governmental
agency or body, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their respective
activities or properties; or any judgment, decree or order, known to
such counsel after reasonable investigation, of any government,
arbitrator, court, regulatory body or administrative agency or other
governmental agency or body, domestic or foreign, having such
jurisdiction; and no consent, approval, authorization or order of any
court, regulatory body or administrative agency or other governmental
agency or body, domestic or foreign, has been or is required for the
Company's performance of this Agreement or the consummation of the
transactions contemplated hereby, except such as have been obtained
under the Act or may be required under state securities or blue sky
laws in connection with the purchase and distribution by the
Underwriters of the Shares;
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<PAGE> 22
(5) To the best of such counsel's knowledge, the conduct of
the businesses of the Company and its subsidiaries is not in violation
of any federal, state or local statute, administrative regulation or
other law, which violation is likely to have a Material Adverse Effect;
and each of the Company and its subsidiaries has obtained all licenses,
permits, franchises, certificates and other authorizations from state,
federal and other regulatory authorities as are necessary or required
for the ownership, leasing and operation of its properties and the
conduct of its business as presently conducted and as contemplated in
the Prospectus and
(6) The issued shares of capital stock of each of the
subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable and, except and as otherwise set forth in the
Prospectus, are owned by the Company free and clear of any perfected
security interests or, to the best knowledge of such counsel, any other
liens, encumbrances, claims or security interests; to the best of such
counsel's knowledge, no subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distribution on such subsidiary's
capital stock, from repaying to the Company any loans or advances to
such subsidiary from the Company or from transferring any of such
subsidiary's property or assets to the Company or any other subsidiary
of the Company, except as described in or contemplated by the
Prospectus [; and][.]/
In addition, such counsel shall state that in the course of the
preparation of the Registration Statement and the Prospectus, such counsel has
participated in conferences with officers and representatives of the Company and
with the Company's independent public accountants, at which conferences such
counsel made inquiries of such officers, representatives and accountants and
discussed the contents of the Registration Statement and the Prospectus and
(without taking any further action to verify independently the statements made
in the Registration Statement and the Prospectus and, except as stated in the
foregoing opinion, without assuming responsibility for the accuracy,
completeness or fairness of such statements) nothing has come to such counsel's
attention that causes such counsel to believe that either the Registration
Statement as of the date it is declared effective and as of the Closing Date or
the Prospectus as of the date thereof and as of the Closing Date contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading (it being understood that such counsel need not express
any opinion with respect to the financial statements, schedules and other
financial data included in the Registration Statement or the Prospectus).
In rendering any such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials.
References to the Registration Statement and the Prospectus in
this paragraph (d) shall include any amendment or supplement thereto at the date
of such opinion.
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<PAGE> 23
(5) On or prior to the Closing Date, counsel to the Underwriters
shall have been furnished such documents, certificates and opinions as they may
reasonably require in order to evidence the accuracy, completeness or
satisfaction of any of the representations or warranties of the Company or the
Selling Stockholders, or conditions herein contained.
(6) At the time that this Agreement is executed by the Company
the Underwriters shall have received from _____________ a letter as of the date
this Agreement is executed by the Company in form and substance satisfactory to
you (the "Original Letter"), and on the Closing Date the Underwriters shall have
received from such firm a letter dated the Closing Date stating that, as of a
specified date not earlier than five (5) days prior to the Closing Date, nothing
has come to the attention of such firm to suggest that the statements made in
the Original Letter are not true and correct.
(7) On the Closing Date, the Underwriters shall have received a
certificate, dated the Closing Date, of the principal executive officer and the
principal financial or accounting officer of the Company to the effect that each
of such persons has carefully examined the Registration Statement and the
Prospectus and any amendments or supplements thereto and this Agreement, and
that:
(1) The representations and warranties of the Company in
this Agreement are true and correct, as if made on and as of the
Closing Date, and the Company has complied with all agreements and
covenants and satisfied all conditions contained in this Agreement on
its part to be performed or satisfied at or prior to the Closing Date;
(2) 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, to the best knowledge
of each of such persons are contemplated or threatened under the Act
and any and all filings required by Rule 424 and Rule 430A have been
timely made;
(3) The Registration Statement and Prospectus and, if any,
each amendment and each supplement thereto, contain all statements and
information required to be included therein, and neither the
Registration Statement nor any amendment thereto includes any untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading and neither the Prospectus (or any supplement
thereto) or any Preliminary Prospectus includes or included any untrue
statement of a material fact or omits or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and
(4) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
up to and including the Closing Date, neither the Company nor any of
the subsidiaries has incurred, other than in the ordinary course of its
business, any material liabilities or obligations, direct or
contingent; neither
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<PAGE> 24
the Company nor any of the subsidiaries has purchased any of its
outstanding capital stock or paid or declared any dividends or other
distributions on its capital stock; neither the Company nor any of the
subsidiaries has entered into any transactions not in the ordinary
course of business; and there has not been any change in the capital
stock or consolidated long-term debt or any increase in the
consolidated short-term borrowings (other than any increase in
short-term borrowings in the ordinary course of business) of the
Company or any material adverse change to the business properties,
assets, net worth, condition (financial or other), results of
operations or prospects of the Company and its subsidiaries taken as a
whole; neither the Company nor any of the subsidiaries has sustained
any material loss or damage to its property or assets, whether or not
insured; there is no litigation which is pending or threatened against
the Company or any of its subsidiaries which is required under the Act
or the Rules and Regulations to be set forth in an amended or
supplemented Prospectus which has not been set forth; and there has not
occurred any event required to be set forth in an amended or
supplemented Prospectus which has not been set forth.
References to the Registration Statement and the
Prospectus in this paragraph (g) are to such documents as amended and
supplemented at the date of the certificate.
(8) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus up to and
including the Closing Date there has not been (i) any change or decrease
specified in the letter or letters referred to in paragraph (f) of this Section
7 or (ii) any change, or any development involving a prospective change, in the
business or properties of the Company or its subsidiaries which change or
decrease in the case of clause (i) or change or development in the case of
clause (ii) makes it impractical or inadvisable in the Representative's judgment
to proceed with the public offering or the delivery of the Shares as
contemplated by the Prospectus.
(9) No order suspending the sale of the Shares in any
jurisdiction designated by you pursuant to Section 5(a)(iii)(A) hereof has been
issued on or prior to the Closing Date and no proceedings for that purpose have
been instituted or, to your knowledge or that of the Company, have been or are
contemplated.
(10) On the Closing Date, the Underwriters shall have
received the opinion, dated the Closing Date, of [SELLING STOCKHOLDERS' COUNSEL]
in its capacity as counsel for the Selling Stockholder[s], to the effect set
forth below:
(1) Each Selling Stockholder has full legal right,
power and authority to enter into this Agreement and to sell, assign,
transfer and deliver in the manner provided herein the Shares sold by
such Selling Stockholder; this Agreement has been duly executed and
delivered by such Selling Stockholder; and this Agreement, assuming due
authorization, execution and delivery by each other party hereto and
further assuming it is a valid and binding agreement of each of the
Underwriters, is a valid and binding agreement of such Selling
Stockholder, enforceable against such Selling Stockholder in
24
<PAGE> 25
accordance with its respective terms (except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
laws now or hereafter in effect relating to or affecting creditors'
rights generally and by general principles of equity relating to the
availability of remedies and except as rights to indemnity and
contribution may be limited by federal or state securities laws and the
public policy underlying such laws);
(2) None of the execution, delivery or performance of
this Agreement, the Power of Attorney and the Custody Agreement by such
Selling Stockholder and the consummation by such Selling Stockholder of
the transactions herein and therein contemplated, conflict with or
result in a breach of, or default under, any indenture, mortgage, deed
of trust, voting trust agreement, stockholders agreement, note
agreement or other agreement or other instrument known to such counsel
to which such Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the property of any of the
Selling Stockholders and nothing has come to such counsel's attention
which causes such counsel to believe that such actions will result in
any violation of any law, rule, administrative regulation or court
decree applicable to such Selling Stockholder (other than state
securities or blue sky laws or regulations, as to which such counsel
need not express any opinion);
(3) A Power of Attorney and a Custody Agreement have
been duly executed and delivered by each Selling Stockholder and,
assuming the due authorization, execution and delivery of the Custody
Agreement by the other parties thereto, each constitutes the valid and
binding agreement of each Selling Stockholder 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 creditors' rights generally or by
general principles of equity relating to the availability of remedies
and except as rights to indemnity or contribution may be limited by
federal or state securities laws and the public policy underlying such
laws and
(4) Upon the delivery of the Shares to be sold
hereunder by the Selling Stockholders and payment therefor in
accordance with the terms of this Agreement and assuming that each of
the Underwriters which has severally purchased such Shares acquires
such Shares without notice of any adverse claim (within the meaning of
the Uniform Commercial Code), such Underwriter will have acquired all
of the rights of such Selling Stockholder to the Shares sold by such
Selling Stockholder hereunder, and in addition will have acquired title
to such Shares free and clear of any adverse claim.
References to the Registration Statement and the
Prospectus in this paragraph (j) shall include any amendment or supplement
thereto at the date of such opinion.
(11) On the Closing Date, the Underwriters shall have
received a certificate, dated the Closing Date, from each Selling Stockholder
(which may be signed by the Attorney-in-Fact) to the effect that each of such
Selling Stockholders has carefully examined the Registration Statement and the
Prospectus and this Agreement, and that:
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<PAGE> 26
(1) The representations and warranties of such Selling
Stockholder in this Agreement are true and correct, as if made
at and as of the Closing Date, and such Selling Stockholder
has complied with all the agreements and satisfied all the
conditions to be performed or satisfied by such Selling
Stockholder at or prior to the Closing Date; and
(2) The Registration Statement and Prospectus and, if
any, each amendment and each supplement thereto, contain all
statements required to be included therein regarding such
Selling Stockholder, and none of the Registration Statement
nor any amendment thereto includes any untrue statement of a
material fact regarding such Selling Stockholder or omits to
state any material fact regarding such Selling Stockholder
required to be stated therein or necessary to make the
statements therein regarding such Selling Stockholder not
misleading, and neither the Prospectus (and any supplements
thereto) or any Preliminary Prospectus includes or included
any untrue statement of a material fact regarding such Selling
Stockholder or omits or omitted to state a material fact
regarding such Selling Stockholder required to be stated
therein or necessary in order to make the statements therein
regarding such Selling Stockholder, in light of the
circumstances under which they were made, not misleading.
(12) The Representative shall have received from each Selling
Stockholder an agreement to the effect that such person will not, directly or
indirectly, without the prior written consent of the Representative, offer,
sell, grant any option to purchase or otherwise dispose (or announce any offer,
sale, grant of an option to purchase or other disposition) of any shares of
Common Stock or any securities convertible into, or exchangeable or exercisable
for, shares of Common Stock for a period of 6 months after the date of this
Agreement.5
(13) The Company and the Selling Stockholder shall have
furnished the Underwriters with such further opinions, letters, certificates or
documents as you or counsel for the Underwriters may reasonably request. All
opinions, certificates, letters and documents to be furnished by the Company and
the Selling Stockholders will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Underwriters and to
counsel for the Underwriters. The Company and the Selling Stockholder shall
furnish the Underwriters with conformed copies of such opinions, certificates,
letters and documents in such quantities as you reasonably request. The
certificates delivered under this Section 7 shall constitute representations,
warranties and agreements of the Company and the Selling Stockholders], as the
case may be, as to all matters set forth therein as fully and effectively as if
such matters had been set forth in Section 2 of this Agreement.
--------
5 See Footnote 6 for a discussion of the length of the lock-up. It may be
desirable to obtain executed lock-ups at or before this Agreement is
executed.
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<PAGE> 27
(14) The Shares have been duly authorized for quotation on the
[National Association of Securities Dealers Automated Quotation National Market
System.] [Stock Exchange.]
9. INDEMNIFICATION.
(1) The Company and the Selling Stockholder, jointly and
severally, agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, against any and all losses,
claims, damages or liabilities, joint or several (and actions in respect
thereof), to which such Underwriter or such controlling person may become
subject, under the Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or the
Prospectus or any Preliminary Prospectus, or any amendment or supplement
thereto, or any blue sky application or other document executed by the Company
specifically for the purpose of qualifying, or based upon written information
furnished by the Company or the Selling Stockholder filed in any state or other
jurisdiction in order to qualify, any or all of the Shares under the securities
or blue sky laws thereof (any such application, document or information being
hereinafter called a "Blue Sky Application"), 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 not misleading and will
reimburse, as incurred, such Underwriter or such controlling persons for any
legal or other expenses incurred by such Underwriter or such controlling persons
in connection with investigating, defending or appearing as a third party
witness in connection with any such loss, claim, damage, liability or action;
provided, however, that the obligations of each of the Selling Stockholders
pursuant to this Section 8(a) shall apply only with respect to information
provided by such Selling Stockholder for inclusion in such documents, and
provided, further that the Company and such Selling Stockholder will not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in any of such
documents in reliance upon and in conformity with information furnished in
writing to the Company on behalf of such Underwriter through the Representative
expressly for use therein, and provided, further, that such indemnity with
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage, liability or action
purchased Shares which are the subject thereof to the extent that any such loss,
claim, damage, liability or action (i) results from the fact that such
Underwriter failed to send or give a copy of the Prospectus (as amended or
supplemented) to such person at or prior to the confirmation of the sale of such
Shares to such person in any case where such delivery is required by the Act and
(ii) arises out of or is based upon an untrue statement or omission of a
material fact contained in such Preliminary Prospectus that was corrected in the
Prospectus (as amended and supplemented), unless such failure resulted from
non-compliance by the Company with Section S(a)(viii) hereof.
The indemnity agreement in this paragraph (a) shall be in
addition to any liability which the Company and the Selling Stockholders may
otherwise have.
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<PAGE> 28
(2) Each of the Underwriters agrees severally, but not
jointly, to indemnify and hold harmless the Company, each of its directors, each
of its officers who has signed the Registration Statement, each person, if any,
who controls the Company within the meaning of Section 15 of the Act or Section
20 of the Exchange Act and each Selling Stockholder against any and all losses,
claims, damages or liabilities (and actions in respect thereof) to which the
Company or any such Selling Stockholder, director, officer, or controlling
person may become subject, under the Act or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement or the Prospectus or any Preliminary Prospectus, or any
amendment or supplement thereto or in any Blue Sky Application, or arise out of
or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
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 information furnished in writing by
that Underwriter through the Representatives to the Company expressly for use
therein; and will reimburse, as incurred, all legal or other expenses reasonably
incurred by the Company or any such Selling Stockholder, director, officer,
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action. The Company and the Selling Stockholders
acknowledge that the statements with respect to the public offering of the
Shares set forth [in paragraph[s] __, __ and __] under the heading
["Underwriting"] and the stabilization legend in the Prospectus have been
furnished by the Underwriters to the Company expressly for use therein and
constitute the only information furnished in writing by or on behalf of the
Underwriters for inclusion in the Prospectus. The indemnity agreement contained
in this subsection (b) shall be in addition to any liability which the
Underwriters may otherwise have.
(3) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against one or more
indemnifying parties under this Section 8, notify such indemnifying party or
parties of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under subsection (a) or (b) of this Section
8 or to the extent that the indemnifying party was not adversely affected by
such omission. In case any such action is brought against an indemnified party
and it notifies an indemnifying party or parties of the commencement thereof,
the indemnifying party or parties against which a claim is to be made will be
entitled to participate therein and, to the extent that it or they may wish, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party has reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and otherwise to participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
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<PAGE> 29
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses (other than the reasonable costs of investigation)
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party has employed such counsel in connection
with the assumption of such different or additional legal defenses in accordance
with the proviso to the immediately preceding sentence, (ii) the indemnifying
party has not employed counsel reasonably satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after notice of
commencement of the action, or (iii) the indemnifying party has authorized in
writing the employment of counsel for the indemnified party at the expense of
the indemnifying party.
(4) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b)above in respect of any losses, claims, damages, expenses or
liabilities (or actions in respect thereof)referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) (i) in such proportion as is appropriate to reflect
the relative benefits received by each of the contributing parties, on the one
hand, and the party to be indemnified, 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 each of the contributing parties, on the one hand, and the party to be
indemnified, on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. In any case where the Company and/or
any Selling Stockholder are contributing parties and the Underwriters are the
indemnified party, the relative benefits received by the Company and/or the
Selling Stockholders on the one hand, and the Underwriters, on the other, shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Shares (before deducting expenses) bear to the total
underwriting discounts received by the Underwriters hereunder, in each case as
set forth in the table on the cover page of the Prospectus. Relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Selling
Stockholders or by the Underwriters, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this paragraph (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (d), the Underwriters shall not
be required to contribute any amount in excess of the underwriting discount
applicable to the Shares purchased by the Underwriters hereunder. The
Underwriters' obligations to contribute pursuant to this paragraph (d) are
several in proportion to their respective underwriting obligations, and not
joint. 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
paragraph (d), (i) each person, if any, who controls an Underwriter within the
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meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Underwriter and (ii) each director of
the Company, each officer of the Company who has signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act and each of the
Selling Stockholders shall have the same rights to contribution as the Company,
subject in each case to this paragraph (d). Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect to which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission so to
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation (x) it or they may have
hereunder or otherwise than under this paragraph (d) or (y) to the extent that
such party or parties were not adversely affected by such omission. The
contribution agreement set forth above shall be in addition to any liabilities
which any indemnifying party may otherwise have.
10. RIGHT TO INCREASE OFFERING. At anytime during a period of
30 days from the date of the Prospectus, the Underwriters, by no less than two
business days' prior notice to the Company and the Selling Stockholders the
Selling Stockholder[s] may designate a closing (which may be concurrent with,
and part of, the closing on the Closing Date with respect to the Firm Shares or
may be a second closing held on a date subsequent to the Closing Date, in either
case such date shall be referred to herein as the "Option Closing Date")at which
the Underwriters may purchase all or less than all of the Additional Shares in
accordance with the provisions of this Section 9 at the purchase price per share
to be paid for the Firm Shares. In no event shall the Option Closing Date be
later than 10 business days after written notice of election to purchase
Additional Shares is given.
The Company and the Selling Stockholders agree, severally
and not jointly, to sell to the several Underwriters the respective numbers of
Additional Shares obtained by multiplying the number of Shares specified in such
notice by a fraction, of which the numerator is in the case of the Company, the
maximum number of Additional Shares offered by it, and [IF ONLY ONE SELLING
STOCKHOLDER IN ADDITION TO THE COMPANY IS TO SELL ADDITIONAL SHARES, INSERT -,
in the case of the Selling Stockholder, the maximum number of Additional Shares
offered by such Selling Stockholder,6 and the denominator is the total number of
Additional Shares (subject to adjustment by you to eliminate fractions)] [IF TWO
OR MORE BUT NOT ALL OF THE SELLING STOCKHOLDERS ARE TO SELL ADDITIONAL SHARES,
INSERT - in the case of each of [insert names of Selling Stockholders], the
maximum number of Additional Shares offered by such Selling Stockholders as set
forth in Column (2) of Schedule II, and the denominator is the total number of
Additional Shares (subject to adjustment by you to eliminate fractions).] [IF
ALL THE SELLING STOCKHOLDERS ARE TO SELL ADDITIONAL SHARES, INSERT - in the case
of each of the Selling Stockholders, the number of shares opposite the name of
each Selling Stockholder set forth in Column (2) of Schedule II hereto, and the
denominator is the total number of Additional Shares
--------
6 If the Selling Stockholder granting the option is not the only Selling
Stockholder selling Firm Shares, substitute the name of such Selling
Stockholder.
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<PAGE> 31
(subject to adjustment by you to eliminate fractions)]. Such Additional Shares
shall be purchased from the Company and [the] [each] Selling Stockholder] for
the account of each Underwriter in the same proportion as the number of Firm
Shares set forth opposite the name of such Underwriter in Column (3) of Schedule
I bears to the total number of Firm Shares (subject to adjustment by you to
eliminate fractions) and may be purchased by the Underwriters only for the
purpose of covering over-allotments made in connection with the sale of the Firm
Shares.]
No Additional Shares shall be sold or delivered unless the
Firm Shares previously have been, or simultaneously are, sold and delivered. The
right to purchase the Additional Shares or any portion thereof may be
surrendered and terminated at any time upon notice by you to the [Company] [and]
[the] [Selling Stockholder[s].
Except to the extent modified by this Section 9, all
provisions of this Agreement relating to the transactions contemplated to occur
on the Closing Date for the sale of the Firm Shares shall apply, mutatis
mutandis, to the Option Closing Date for the sale of the Additional Shares.
11. REPRESENTATIONS, ETC. TO SURVIVE DELIVERY. The respective
representations, warranties, agreements, covenants, indemnities and statements
of, and on behalf of, the Company and its officers, the Selling Stockholders and
the Underwriters, respectively, set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or
on behalf of the Underwriters, and will survive delivery of and payment for the
Shares. Any successors to the Underwriters shall be entitled to the indemnity,
contribution and reimbursement agreements contained in this Agreement.
12. EFFECTIVE DATE AND TERMINATION.
(1) This Agreement shall become effective at 1l:00 A.M., New
York time on the first business day following the date hereof, or at such
earlier time after the Registration Statement becomes effective as the
Representatives, in its sole discretion, shall release the Shares for the sale
to the public unless prior to such time the Representatives shall have received
written notice from the Company that it elects that this Agreement shall not
become effective, or the Representatives shall have given written notice to the
Company that the Representatives on behalf of the Underwriters elects that this
Agreement shall not become effective; provided, however, that the provisions of
this Section and of Section 6 and Section 8 hereof shall at all times be
effective. For purposes of this Section 11(a), the Shares to be purchased
hereunder shall be deemed to have been so released upon the earlier of
notification by the Representative[s] to securities dealers releasing such
Shares for offering or the release by the Representative[s] for publication of
the first newspaper advertisement which is subsequently published relating to
the Shares.
(2) This Agreement (except for the provisions of Sections 6
and 8 hereof) may be terminated by the Representative by notice to the Company
and the Attorney-in-Fact in the event that the Company or any of the Selling
Stockholders has failed to comply in any respect with any of the provisions of
this Agreement required on its parts to be performed at or prior to
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<PAGE> 32
the Closing Date or the Option Closing Date, or if any of the representations or
warranties of the Company or the Selling Stockholders are not accurate in any
respect or if the covenants, agreements or conditions of, or applicable to the
Company or the Selling Stockholders herein contained have not been complied with
in any respect or satisfied within the time specified on the Closing Date or the
Option Closing Date, respectively, or if prior to the Closing Date or the Option
Closing Date:
(1) the Company or any of its subsidiaries shall have
sustained a loss by strike, fire, flood, accident or other calamity of
such a character as to interfere materially with the conduct of the
business and operations of the Company and its Subsidiaries takes as a
whole regardless of whether or not such loss was insured;
(2) trading in the Common Stock shall have been suspended by
the Commission or the National Association of Securities Dealers
Automated Quotations National Market System or trading in securities
generally on the New York or [INSERT NAMES OF ANY EXCHANGES ON WHICH
THE COMMON STOCK IS LISTED] Stock Exchange or the National Association
of Securities Dealers Automated Quotations National Market System shall
have been suspended or a material limitation on such trading shall have
been imposed or minimum or maximum prices shall have been established
on any such exchange or market system;
(3) a banking moratorium shall have been declared by New York
or United States authorities;
(4) there shall have been an outbreak or escalation of
hostilities between the United States and any foreign power or an
outbreak or escalation of any other insurrection or armed conflict
involving the United States; or
(5) there shall have been a material adverse change in (A)
general economic, political or financial conditions or (B) the present
or prospective business or condition (financial or other) of the
Company and its subsidiaries taken as a whole that, in each case, in
the Representative's judgment makes it impracticable or inadvisable to
make or consummate the public offering, sale or delivery of the
Company's Shares on the terms and in the manner contemplated in the
Prospectus and the Registration Statement.
(3) Termination of this Agreement under this Section 11 or
Section 12 after the Firm Shares have been purchased by the Underwriters
hereunder shall be applicable only to the Additional Shares. Termination of this
Agreement shall be without liability of any party to any other party other than
as provided in Sections 6 and 8 hereof.
13. SUBSTITUTION OF UNDERWRITERS. If one or more of the Underwriters
shall fail or refuse (otherwise than for a reason sufficient to justify the
termination of this Agreement under the provisions of Section 7 or 11 hereof) to
purchase and pay for (a) in the case of the Closing Date, the number of Firm
Shares agreed to be purchased by such Underwriter or Underwriters upon tender to
you of such Firm Shares in accordance with the terms hereof or (b) in the case
of
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<PAGE> 33
the Option Closing Date, the number of Additional Shares agreed to be purchased
by such Underwriter or Underwriters upon tender to you of such Additional Shares
in accordance with the terms hereof, and the number of such Shares shall not
exceed 10% of the Firm Shares or Additional Shares required to be purchased on
the Closing Date or the Option Closing Date, as the case may be, then, each of
the non-defaulting Underwriters shall purchase and pay for (in addition to the
number of such Shares which it has severally agreed to purchase hereunder) that
proportion of the number of Shares which the defaulting Under&ter or
Underwriters shall have so failed or refused to purchase on such Closing Date or
Option Closing Date, as the case may be, which the number of Shares agreed to be
purchased by such non-defaulting Underwriter bears to the aggregate number of
Shares so agreed to be purchased by all such non-defaulting Underwriters on such
Closing Date or Option Closing Date, as the case may be. In such case, you shall
have the right to postpone the Closing Date or the Option Closing Date, as the
case may be, to a date not exceeding seven full business days after the date
originally fixed as such Closing Date or the Option Closing Date, as the case
may be, pursuant to the terms hereof in order that any necessary changes in the
Registration Statement, the Prospectus or any other documents or arrangements
may be made.
If one or more of the Underwriters shall fail or refuse (otherwise
than for a reason sufficient to justify the termination of this Agreement under
the provisions of Section 7 or 11 hereof) to purchase and pay for (a) in the
case of the Closing Date, the number of Firm Shares agreed to be purchased by
such Underwriter or Underwriters upon tender to you of such Firm Shares in
accordance with the terms hereof or (b) in the case of the Option Closing Date,
the number of Additional Shares agreed to be purchased by such Underwriter or
Underwriters upon tender to you of such Additional Shares in accordance with the
terms hereof, and the number of such Shares shall exceed 10% of the Firm Shares
or Additional Shares required to be purchased by all the Underwriters on the
Closing Date or the Option Closing Date, as the case may be, then (unless within
48 hours after such default arrangements to your satisfaction shall have been
made for the purchase of the defaulted Shares by an Underwriter or Underwriters)
and subject to the provisions of Section 11 (b) hereof, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or on
the part of the Company or the Selling Stockholders except as otherwise provided
in Sections 6 and 8 hereof. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this paragraph. Nothing
in this Section 12, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
14. NOTICES. All communications hereunder shall be in writing and if
sent to the Representative shall be and confirmed by letter to c/o Stifel,
Nicolaus & Company, Incorporated at One Financial Plaza, 501 North Broadway, St.
Louis, Missour 63102, or, if sent to the Company, shall be mailed or delivered
or telegraphed and confirmed to the Company at _________, Attention: ________,
or if sent to the Selling Stockholders, shall be mailed or delivered or
telegraphed and confirmed by letter or telecopied and confirmed by letter to
[name[s] of Attorney-in-Fact[s] and address].
15. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the Company, the Selling
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<PAGE> 34
Stockholders, and each Underwriter and the Company's, the Selling Stockholder's
and each Underwriter's respective successors and legal representatives, and
nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim
under or in respect of this Agreement, or any provisions herein contained, this
Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of such persons and for the benefit of
no other person, except that the representations, warranties, indemnities and
contribution agreements of the Company and the Selling Stockholders contained in
this Agreement shall also be for the benefit of any person or persons, if any,
who control any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and except that the Underwriters' indemnity and
contribution agreements shall also be for the benefit of the directors of the
Company, the officers of the Company who have signed the Registration Statement,
any person or persons, if any, who control the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act and the Selling
Stockholder[s]. No purchaser of Shares from the Underwriters will be deemed a
successor because of such purchase.
16. APPLICABLE LAW; JURISDICTION. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to the choice of law or conflict of law principles thereof. Each
party hereto consents to the jurisdiction of each court in which any action is
commenced seeking indemnity or contribution pursuant to Section 8 above and
agrees to accept, either directly or through an agent, service of process of
each such court.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
If the foregoing correctly sets forth our understanding, please
indicate the Underwriters' acceptance thereof in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement between
us.
Very truly yours,
[COMPANY]
By: _________________________________
Name:
Title:
SELLING STOCKHOLDERS
By: _________________________________
As Attorney-in-Fact for
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<PAGE> 35
the Selling Stockholders named in
Schedule II hereto
Accepted as of the date first
above written:
STIFEL, NICOLAUS & COMPANY, INCORPORATED
By: STIFEL, NICOLAUS & COMPANY, INCORPORATED
Acting on its own behalf and as
of the several Underwriters
referred to in the foregoing Agreement
By: _________________________
Title:_______________________
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<PAGE> 36
SCHEDULE I
UNDERWRITERS
Underwriting Agreement dated May _, 200_
<TABLE>
<CAPTION>
(1) (3)
Number of Firm (2) Aggregate
Shares to be Number of Firm Shares to be Number of
Purchased from Purchased from the Selling Firm Shares
the Company Stockholder[s] to be Purchased
----------- -------------- ---------------
<S> <C> <C> <C>
Name and Address
Stifel, Nicolaus & Company, _____________ _____________ _____________
Incorporated
Total............................... _____________ _____________ _____________
============= ============= =============
</TABLE>
<PAGE> 37
SCHEDULE II
SELLING STOCKHOLDER[S]
<TABLE>
<CAPTION>
[(1)] (2)
Name and Address of Maximum Number of
Selling Stockholder Firm Shares to be Sold Additional Shares to be Sold
------------------- ---------------------- ----------------------------
<S> <C> <C>
Total.......................... _________________ _________________
=================
</TABLE>
