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EXHIBIT 1.1
6,500,000 Shares
Resources Connection, Inc.
Common Stock, par value
$0.01 per share
UNDERWRITING AGREEMENT
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December ___, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES INC.
ROBERT W. BAIRD & CO. INCORPORATED
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Resources Connection, Inc, a Delaware corporation
("Company") proposes to issue and sell 5,000,000 shares of its common stock, par
value $0.01 per share, ("Securities") and the stockholders listed in Schedule A
hereto ("Evercore Selling Stockholders") and the stockholders listed on Schedule
B hereto below the caption Other Selling Stockholders ("Other Selling
Stockholders" and together with the Evercore Selling Stockholders, "Initial
Selling Stockholders") propose severally to sell an aggregate of 1,500,000
outstanding shares of the Securities (such 6,500,000 shares of Securities being
hereinafter referred to as the "Firm Securities"). Certain of the Initial
Selling Stockholders and each of the stockholders listed on Schedule B below the
caption Management Selling Stockholders ("Management Selling Stockholders" and
together with the Initial Selling Stockholders, "Selling Stockholders"), also
propose to sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than 975,000 additional outstanding shares of the
Company's Securities, as set forth below (such 975,000 additional shares being
hereinafter referred to as the "Optional Securities"). The Firm Securities and
the Optional Securities are herein collectively called the "Offered Securities".
As part of the offering contemplated by this Agreement, Deutsche Bank Securities
Inc. (the "Designated Underwriter") has agreed to reserve out of the Firm
Securities purchased by it under this Agreement, up to 500,000 shares, for sale
to the Company's directors, officers, employees and other parties associated
with the Company (collectively, "Participants"), as set forth in the Prospectus
(as defined herein) under the heading "Underwriting" (the "Directed Share
Program"). The Firm Securities to be sold by the Designated Underwriter pursuant
to the Directed Share Program (the "Directed Shares") will be sold by the
Designated Underwriter pursuant to this Agreement at the public offering price.
Any Directed Shares not subscribed for by the end of the business day on which
this Agreement is executed will be offered to the public by the Underwriters as
set forth in the Prospectus. The Company and the Selling Stockholders hereby
agree with the several Underwriters named in Schedule C hereto ("Underwriters")
as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders.
(a) The Company and each Management Selling Stockholder
severally represents and warrants to, and agrees with, the several Underwriters
that:
(i) A registration statement (No. 333-45000)
relating to the Offered Securities, including a form of prospectus, has been
filed with the Securities and Exchange Commission ("Commission") and either (A)
has been declared effective under the Securities Act of 1933 ("Act") and is not
proposed to be amended or (B) is proposed to be amended by amendment or post-
effective amendment. If such registration statement (the "initial registration
statement") has been declared effective, either (A) an additional registration
statement (the "additional registration statement") relating to the Offered
Securities may have been filed with the Commission
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pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if so filed, has
become effective upon filing pursuant to such Rule and the Offered Securities
all have been duly registered under the Act pursuant to the initial registration
statement and, if applicable, the additional registration statement or (B) such
an additional registration statement is proposed to be filed with the Commission
pursuant to Rule 462(b) and will become effective upon filing pursuant to such
Rule and upon such filing the Offered Securities will all have been duly
registered under the Act pursuant to the initial registration statement and such
additional registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration statement has
been filed and the Company does not propose to amend it, and if any post-
effective amendment to either such registration statement has been filed with
the Commission prior to the execution and delivery of this Agreement, the most
recent amendment (if any) to each such registration statement has been declared
effective by the Commission or has become effective upon filing pursuant to Rule
462(c) ("Rule 462(c)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement, "Effective
Time" with respect to the initial registration statement or, if filed prior to
the execution and delivery of this Agreement, the additional registration
statement means (A) if the Company has advised the Representatives that it does
not propose to amend such registration statement, the date and time as of which
such registration statement, or the most recent post-effective amendment thereto
(if any) filed prior to the execution and delivery of this Agreement, was
declared effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (B) if the Company has advised the Representatives
that it proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment, as the case
may be, is declared effective by the Commission. If an additional registration
statement has not been filed prior to the execution and delivery of this
Agreement but the Company has advised the Representatives that it proposes to
file one, "Effective Time" with respect to such additional registration
statement means the date and time as of which such registration statement is
filed and becomes effective pursuant to Rule 462(b). "Effective Date" with
respect to the initial registration statement or the additional registration
statement (if any) means the date of the Effective Time thereof. The initial
registration statement, as amended at its Effective Time, including all
information contained in the additional registration statement (if any) and
deemed to be a part of the initial registration statement as of the Effective
Time of the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all information (if
any) deemed to be a part of the initial registration statement as of its
Effective Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is
hereinafter referred to as the "Initial Registration Statement". The additional
registration statement, as amended at its Effective Time, including the contents
of the initial registration statement incorporated by reference therein and
including all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule 430A(b), is
hereinafter referred to as the "Additional Registration Statement". The Initial
Registration Statement and the Additional Registration are hereinafter referred
to collectively as the "Registration Statements" and individually as a
"Registration Statement". The form of prospectus relating to the Offered
Securities, as first filed with the Commission pursuant to and in accordance
with Rule 424(b) ("Rule 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, is hereinafter referred to as
the "Prospectus". No document has been or will be prepared or distributed in
reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this Agreement:
(A) on the Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the requirements of the Act
and the rules and regulations of the Commission ("Rules and Regulations") and
did not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, (B) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement conformed or will conform, in
all respects to the requirements of the Act and the Rules and Regulations and
did not include, or will not include, any untrue statement of a material fact
and did not omit, or will not omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
(C) on the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration Statement
each conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all respects to the
requirements of the Act and the Rules and Regulations, and none of such
Registration Statements includes, or will include, any untrue statement of a
material fact or omits, or will omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
the Prospectus does not include or will not include an untrue statement of a
material fact or does not omit, or
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will not omit, 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. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement: on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement and the Prospectus will conform in all respects
to the requirements of the Act and the Rules and Regulations, none of such
Registration Statements will include any untrue statement of a material fact or
will omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and the Prospectus does not
include or will not include an untrue statement of a material fact or does not
omit, or will not omit, 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 no Additional Registration Statement
has been or will be filed. The two preceding sentences do not apply to
statements in or omissions from a Registration Statement or the Prospectus based
upon written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is
an existing corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to lease its properties
and conduct its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in each of
the states set forth on Schedule D hereto (the "States"). The States represent
all jurisdictions in which the Company's ownership or lease of property or the
conduct of its business requires such qualification.
(iv) Each subsidiary of the Company has been duly
incorporated and is an existing corporation in good standing under the laws of
the jurisdiction of its formation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus; and each subsidiary of the Company is duly qualified to do business
as a foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires such
qualification; all of the issued and outstanding capital stock of each
subsidiary of the Company has been duly authorized and validly issued and is
fully paid and nonassessable; and the capital stock of each subsidiary owned by
the Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(v) The Offered Securities and all other
outstanding shares of capital stock of the Company have been duly authorized and
validly issued, fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Securities.
(vi) Except as disclosed in the Prospectus, there
are no contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like payment in
connection with this offering.
(vii) Except as disclosed in the Prospectus, 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 in the securities registered pursuant to a Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act that have not been
waived or satisfied prior to the date hereof.
(viii) The Securities have been approved for listing
subject to notice of issuance on The Nasdaq Stock Market's National Market.
(ix) No consent, approval, authorization, or order
of, or filing with, any governmental agency or body or any court is required to
be obtained or made by the Company for the consummation of the transactions
contemplated by this Agreement in connection with the sale of the Offered
Securities, except such as have been obtained and made under the Act and such as
may be required under state securities laws.
(x) The execution, delivery and performance of this
Agreement, and the consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of any
governmental agency or
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body or any court, domestic or foreign, having jurisdiction over the Company or
any subsidiary of the Company or any of their properties, or any agreement or
instrument to which the Company or any such subsidiary is a party or by which
the Company or any such subsidiary is bound or to which any of the properties of
the Company or any such subsidiary is subject, or the charter or by-laws of the
Company or any such subsidiary.
(xi) This Agreement has been duly authorized,
executed and delivered by the Company.
(xii) Except as disclosed in the Prospectus, the
Company and its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each case free
from liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or reasonably expected to be
made thereof by them; and except as disclosed in the Prospectus, the Company and
its subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere with the
use made or reasonably expected to be made thereof by them.
(xiii) The Company and its subsidiaries possess
adequate certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by them and
have not received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate reasonably be expected to have a material adverse effect on the
condition (financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole ("Material Adverse Effect").
(xiv) No labor dispute with the employees of the
Company or any subsidiary exists or, to the knowledge of the Company, is
imminent that could reasonably be expected to have a Material Adverse Effect.
(xv) The Company and its subsidiaries own, possess
or can acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential information
and other intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, or presently employed by
them, and have not received any notice of infringement of or conflict with
asserted rights of others with respect to any intellectual property rights that,
if determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, neither
the Company nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws, is
liable for any off-site disposal or contamination pursuant to any environmental
laws, or is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in the
aggregate have Material Adverse Effect; and the Company is not aware of any
pending investigation which might lead to such a claim.
(xvii) Except as disclosed in the Prospectus, there
are no pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company to perform its
obligations under this Agreement, or which are otherwise material in the context
of the sale of the Offered Securities; and no such actions, suits or proceedings
are threatened or, to the Company's knowledge, contemplated.
(xviii) The financial statements included in each
Registration Statement and the Prospectus present fairly the financial position
of the Company and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent basis; and
the assumptions used in preparing the pro forma financial statements included in
each Registration Statement and the Prospectus provide a reasonable basis for
presenting the significant effects directly attributable to the transactions or
events described therein, the related pro forma adjustments give appropriate
effect to those
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assumptions, and the pro forma columns therein reflect the proper application of
those adjustments to the corresponding historical financial statement amounts.
(xix) Except as disclosed in the Prospectus, since
the date of the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or contemplated by
the Prospectus, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(xx) The Company is not and, after giving effect to
the offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(xxi) Furthermore, the Company represents and
warrants to the Underwriters that (i) the Registration Statement, the Prospectus
and any preliminary prospectus comply, and any further amendments or supplements
thereto will comply, with any applicable laws or regulations of foreign
jurisdictions specified by the Company to the Underwriters as the foreign
jurisdictions in which the Participants are located (the "Specified Foreign
Jurisdictions") and in which the Prospectus or any preliminary prospectus, as
amended or supplemented, if applicable, are distributed by the Underwriters in
accordance therewith in connection with the Directed Share Program, and that
(ii) no authorization, approval, consent, license, order, registration or
qualification of or with any government, governmental instrumentality or court,
other than such as have been obtained, is necessary under the securities law and
regulations of such Specified Foreign Jurisdictions in which the Directed Shares
are offered outside the United States.
(xxii) The Company has not offered, or caused the
Underwriters to offer, any offered Securities to any person pursuant to the
Directed Share Program with the specific intent to unlawfully influence (i) a
customer or supplier of the Company to alter the customer's or supplier's level
or type of business with the Company or (ii) a trade journalist or publication
to write or publish favorable information about the Company or its products.
(b) Each Selling Stockholder severally represents and
warrants to, and agrees with, the several Underwriters that:
(i) Such Selling Stockholder has and on each
Closing Date hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by such Selling Stockholder on such Closing
Date and full right, power and authority to enter into this Agreement and to
sell, assign, transfer and deliver the Offered Securities to be delivered by
such Selling Stockholder on such Closing Date hereunder; and upon the delivery
of and payment for the Offered Securities on each Closing Date hereunder the
several Underwriters will acquire valid and unencumbered title to the Offered
Securities to be delivered by such Selling Stockholder on such Closing Date.
(ii) Except as disclosed in the Prospectus, there
are no contracts, agreements or understandings between such Selling Stockholder
and any person that would give rise to a valid claim against such Selling
Stockholder or any Underwriter for a brokerage commission, finder's fee or other
like payment in connection with this offering.
(c) Each Initial Selling Stockholder represents and warrants
to, and agrees with the several Underwriters that if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery of this
Agreement: (A) on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all respects to the requirements of
the Act and the Rules and Regulations and did not include any
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untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
(B) on the Effective Date of the Additional Registration Statement (if any),
each Registration Statement conformed, or will conform, in all respects to the
requirements of the Act and the Rules and Regulations did not include, or will
not include, any untrue statement of a material fact and did not omit, or will
not omit, to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and (C) on the date of this
Agreement, the Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement each conforms, and at the time
of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing is
required) at the Effective Date of the Additional Registration Statement in
which the Prospectus is included, each Registration Statement and the Prospectus
will conform, in all respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading. If the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement: on the Effective
Date of the Initial Registration Statement, the Initial Registration Statement
and the Prospectus will conform in all respects to the requirements of the Act
and the Rules and Regulations, neither of such documents will include any untrue
statement of a material fact or will omit to state any material fact required to
be stated therein or necessary to make the statements therein not misleading.
The two preceding sentences apply only to the extent that any statements in or
omissions from a Registration Statement or the Prospectus are based on written
information furnished to the Company by such Initial Selling Stockholder
specifically for use therein.
3. Purchase, Sale and Delivery of Offered Securities. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Company and each Initial
Selling Stockholder agree, severally and not jointly, to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company and each Selling Stockholder, at a purchase price of $ per
share, that number of Firm Securities (rounded up or down, as determined by
Credit Suisse First Boston Corporation ("CSFBC") and Deutsche Bank Securities,
Inc. ("Deutsche Bank") in its discretion, in order to avoid fractions) obtained
by multiplying 5,000,000 Firm Securities in the case of the Company and the
number of Firm Securities set forth opposite the name of such Initial Selling
Stockholder in Schedule A or Schedule B (as applicable) hereto, in the case of
an Initial Selling Stockholder, in each case by a fraction the numerator of
which is the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule C hereto and the denominator of which is the total
number of Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold by
the Selling Stockholders hereunder have been placed in custody, for delivery
under this Agreement, under Custody Agreements made with American Stock Transfer
& Trust Company, as custodian ("Custodian"). Each Selling Stockholder agrees
that the shares represented by the certificates held in custody for the Selling
Stockholders under such Custody Agreements are subject to the interests of the
Underwriters hereunder, that the arrangements made by the Selling Stockholders
for such custody are to that extent irrevocable, and that the obligations of the
Selling Stockholders hereunder shall not be terminated by operation of law,
whether by the death of any individual Selling Stockholder or the occurrence of
any other event, or in the case of a trust, by the death of any trustee or
trustees or the termination of such trust. If any individual Selling Stockholder
or any such trustee or trustees should die, or if any other such event should
occur, or if any of such trusts should terminate, before the delivery of the
Offered Securities hereunder, certificates for such Offered Securities shall be
delivered by the Custodian in accordance with the terms and conditions of this
Agreement as if such death or other event or termination had not occurred,
regardless of whether or not the Custodian shall have received notice of such
death or other event or termination.
The Company and the Custodian will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank reasonably acceptable to CSFBC and
Deutsche Bank drawn to the order of in the case of shares
of Firm Securities and in the case of shares of Firm Securities, at the office
of , at A.M., New York time, on ,
or at such other time not later than seven full business days thereafter as
CSFBC, Deutsche Bank and the Company determine, such time being herein referred
to as the "First Closing Date". The certificates for the Firm Securities so to
be delivered will be in definitive form, in such denominations and registered in
such names as CSFBC and Deutsche
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Bank request and will be made available for checking and packaging at the above
office at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC and Deutsche Bank given to
the Company and the Selling Stockholders from time to time not more than 30 days
subsequent to the date of the Prospectus, the Underwriters may purchase all or
less than all of the Optional Securities at the purchase price per Optional
Security to be paid for the Firm Securities. The Selling Stockholders agree,
severally and not jointly, to sell to the Underwriters the respective numbers of
Optional Securities obtained by multiplying the number of Optional Securities
specified in such notice by a fraction the numerator of which is the number of
shares set forth opposite the names of such Selling Stockholders in Schedule A
or Schedule B (as applicable) hereto under the caption "Number of Optional
Securities to be Sold" and the denominator of which is the total number of
Optional Securities (subject to adjustment by CSFBC and Deutsche Bank to
eliminate fractions). Such Optional Securities shall be purchased from each
Selling Stockholder for the account of each Underwriter in the same proportion
as the number of Firm Securities set forth opposite such Underwriter's name
bears to the total number of Firm Securities (subject to adjustment by CSFBC and
Deutsche Bank 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 Securities. No Optional Securities shall be sold or delivered
unless the Firm Securities previously have been, or simultaneously are, sold and
delivered. The right to purchase the Optional Securities or any portion thereof
may be exercised from time to time and to the extent not previously exercised
may be surrendered and terminated at any time upon notice by CSFBC and Deutsche
Bank to the Company and the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
and Deutsche Bank but shall be not later than five full business days after
written notice of election to purchase Optional Securities is given. The
Custodian will deliver the Optional Securities being purchased on each Optional
Closing Date to the Representatives for the accounts of the several
Underwriters, against payment of the purchase price therefor in Federal (same
day) funds by official bank check or checks or wire transfer to an account at a
bank acceptable to CSFBC and Deutsche Bank drawn to the order of in
the case of Optional Securities and in the case of Optional
Securities, at the above office. The certificates for the Optional Securities
being purchased on each Optional Closing Date will be in definitive form, in
such denominations and registered in such names as CSFBC and Deutsche Bank
request upon reasonable notice prior to such Optional Closing Date and will be
made available for checking and packaging at the above office of Latham &
Watkins at a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders.
The Company agrees with the several Underwriters and the Selling Stockholders
that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the Company
will file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFBC and Deutsche
Bank, subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement or
(B) the fifteenth business day after the Effective Date of the Initial
Registration Statement.
The Company will advise CSFBC and Deutsche Bank promptly of any
such filing pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this Agreement
and an additional registration statement is necessary to register a portion of
the Offered Securities under the Act but the Effective Time thereof has not
occurred as of such execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective amendment
thereto with the Commission pursuant to and in accordance with Rule 462(b) on or
prior to 10:00 P.M., New York time, on the date of this Agreement or, if
earlier, on or prior to the time the Prospectus is printed and distributed to
any Underwriter, or will make such filing at such later time or date as shall
have been consented to by CSFBC and Deutsche Bank.
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(b) The Company will advise CSFBC and Deutsche Bank promptly
of any proposal to amend or supplement the initial or any additional
registration statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any) or the
Prospectus and will not effect such amendment or supplementation without CSFBC's
or Deutsche Bank's consent, which consent shall not be unreasonably withheld;
and the Company will also advise CSFBC and Deutsche Bank promptly of the
effectiveness of each Registration Statement (if its Effective Time is
subsequent to the execution and delivery of this Agreement) and of any amendment
or supplementation of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of a
Registration Statement and will use its best efforts to prevent the issuance of
any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the
Offered Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Act, the Company will promptly notify CSFBC and Deutsche Bank
of such event and will promptly prepare and file with the Commission, at its own
expense, an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither CSFBC's or
Deutsche Bank's consent to nor the Underwriters' delivery of, any such amendment
or supplement shall constitute a waiver of any of the conditions set forth in
Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally available
to its securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration Statement
(or, if later, the Effective Date of the Additional Registration Statement)
which will satisfy the provisions of Section 11(a) of the Act. For the purpose
of the preceding sentence, "Availability Date" means the 45th day after the end
of the fourth fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last quarter
of the Company's fiscal year, "Availability Date" means the 90th day after the
end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies
of each Registration Statement (of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a prospectus
relating to the Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, the Prospectus and all
amendments and supplements to such documents, in each case in such quantities as
CSFBC and Deutsche Bank request. The Prospectus shall be so furnished on or
prior to 3:00 P.M., New York time, on the business day following the later of
the execution and delivery of this Agreement or the Effective Time of the
Initial Registration Statement. All other such documents shall be so furnished
as soon as available. The Company and the Selling Stockholders will pay the
expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such U.S. jurisdictions as CSFBC
and Deutsche Bank designate and will continue such qualifications in effect so
long as required for the distribution; provided, however, that the Company shall
not be required in connection therewith to qualify as a foreign corporation in
any jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation other than
as to matters and transactions relating to the Prospectus, the Registration
Statement, any preliminary prospectus or the offering or sale of the Offered
Securities, in any jurisdiction in which it is not now so subject.
(g) During the period of 5 years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a copy
of its annual report to stockholders for such year; and the Company will furnish
to the Representatives (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under the
Securities Exchange Act of 1934 or mailed to stockholders, and (ii) from time to
time, such other information concerning the Company as CSFBC and Deutsche Bank
may reasonably request.
(h) For a period of 180 days after the date of the initial
public offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly, or
file with the Commission a registration statement under the Act relating to, any
additional shares of its Securities or
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securities convertible into or exchangeable or exercisable for any shares of its
Securities, or publicly disclose the intention to make any such offer, sale,
pledge, disposition or filing, without the prior written consent of CSFBC and
Deutsche Bank, except for (i) the filing of a Registration Statement on Form S-
8, (ii) grants of stock options or restricted stock pursuant to the Resources
Connection, Inc. 1998 Employee Stock Purchase Plan or the Resources Connection,
Inc. 1999 Long-Term Incentive Plan disclosed in the Prospectus and existing on
the date hereof, and (iii) issuances of Common Stock upon the exercise of
options or warrants in each case outstanding on the date hereof.
(i) The Company agrees with the several Underwriters that
the Company will pay all expenses incident to the performance of the obligations
of the Company, and each Selling Stockholder agrees with the Underwriters that
such Selling Stockholder will pay all expenses incident to the performance of
the obligations of such Selling Stockholder, under this Agreement, for any
filing fees and other expenses (including fees and disbursements of counsel) in
connection with qualification of the Offered Securities for sale under the laws
of such jurisdictions as CSFBC and Deutsche Bank designate and the printing of
memoranda relating thereto, for the filing fee incident to, and the reasonable
fees and disbursements of counsel to the Underwriters in connection with, the
review by the National Association of Securities Dealers, Inc. of the Offered
Securities, for any travel expenses of the Company's officers and employees and
any other expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities, for any transfer
taxes on the sale by such Selling Stockholder of the Offered Securities to the
Underwriters and for expenses incurred in distributing preliminary prospectuses
and the Prospectus (including any amendments and supplements thereto) to the
Underwriters.
(j) Each Selling Stockholder agrees to deliver to CSFBC,
attention: Transactions Advisory Group on or prior to the First Closing Date a
properly completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department regulations
in lieu thereof).
(k) Each Selling Stockholder agrees, for a period of 180
days after the date of the initial public offering of the Offered Securities,
not to offer, sell, contract to sell, pledge or otherwise dispose of, directly
or indirectly, any additional shares of the Securities of the Company or
securities convertible into or exchangeable or exercisable for any shares of
Securities, enter into a transaction which would have the same effect, or enter
into any swap, hedge or other arrangement that transfers, in whole or in part,
any of the economic consequences of ownership of the Securities, whether any
such aforementioned transaction is to be settled by delivery of the Securities
or such other securities, in cash or otherwise, or publicly disclose the
intention to make any such offer, sale, pledge or disposition, or enter into any
such transaction, swap, hedge or other arrangement, without, in each case, the
prior written consent of CSFBC and Deutsche Bank other than the transfer of
Securities to a family member or trust or, if the Selling Stockholder is a
partnership, a transfer by the partnership to a partner, a retired partner, or
the estate of such partner or retired partner; provided, in each case, the
transferee agrees to be bound in writing by the terms of this Section (k) prior
to such transfer.
(l) In connection with the Directed Share Program, the
Company will ensure that the Directed Shares will be restricted to the extent
required by the National Association of Securities Dealers, Inc. (the "NASD") or
the NASD rules from sale, transfer, assignment, pledge or hypothecation for a
period of three months following the date of the effectiveness of the
Registration Statement. The Designated Underwriter will notify the Company as to
which Participants will need to be so restricted. The Company will direct the
transfer agent to place stop transfer restrictions upon such securities for such
period of time.
(m) The Company will pay all fees and disbursements of
counsel incurred by the Underwriters in connection with the Directed Shares
Program and stamp duties, similar taxes or duties or other taxes, if any,
incurred by the underwriters in connection with the Directed Share Program.
Furthermore, the Company covenants with the Underwriters that
the Company will comply with all applicable securities and other applicable
laws, rules and regulations in each Specified Foreign Jurisdiction in which the
Directed Shares are offered in connection with the Directed Share Program.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm
Securities on the First Closing Date and the Optional Securities to be purchased
on each Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of the
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Company and the Selling Stockholders herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company and the Selling Stockholders of their obligations hereunder and
to the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, shall be on
or prior to the date of this Agreement or, if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment or post-effective
amendment to the registration statement to be filed shortly prior to such
Effective Time), of PricewaterhouseCoopers LLP confirming that they are
independent public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and schedules
examined by them and included in the Registration Statements comply as to form
in all material respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim financial
information as described in Statement of Auditing Standards No. 71, Interim
Financial Information, on the unaudited financial statements included in the
Registration Statements;
(iii) on the basis of a reading of the latest available interim
financial statements of the Company, inquiries of officials of the Company who
have responsibility for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements included in the
Registration Statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations or any material
modifications should be made to such unaudited financial
statements for them to be in conformity with generally accepted
accounting principles;
(B) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than
three business days prior to the date of this Agreement, there was
any change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company and its consolidated
subsidiaries or, at the date of the latest available balance sheet
read by such accountants, there was any decrease in consolidated
net current assets or net assets, as compared with amounts shown
on the latest balance sheet included in the Prospectus; or
(C) for the period from the closing date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants there
were any decreases, as compared with the corresponding period of
the previous year and with the period of corresponding length
ended the date of the latest income statement included in the
Prospectus, in consolidated net sales or net operating income in
the total or per share amounts of consolidated net income;
except in all cases set forth in clauses (A) and (B) above for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information contained in
the Registration Statements (in each case to the extent that such dollar
amounts, percentages and other financial information are derived from the
general accounting records of the Company and its subsidiaries subject to the
internal controls of the Company's accounting system or are derived directly
from such records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such results, except as
otherwise specified in such letter.
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For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statements is subsequent to the execution and delivery of
this Agreement, "Registration Statements" shall mean the initial
registration statement as proposed to be amended by the amendment or
post-effective amendment to be filed shortly prior to its Effective Time,
(ii) if the Effective Time of the Initial Registration Statements is
prior to the execution and delivery of this Agreement but the Effective
Time of the Additional Registration Statement is subsequent to such
execution and delivery, "Registration Statements" shall mean the Initial
Registration Statement and the additional registration statement as
proposed to be filed or as proposed to be amended by the post-effective
amendment to be filed shortly prior to its Effective Time, and (iii)
"Prospectus" shall mean the prospectus included in the Registration
Statements.
(b) If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of this
Agreement or such later time or date as shall have been consented to by CSFBC
and Deutsche Bank. If the Effective Time of the Additional Registration
Statement (if any) is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or, if earlier, the time the Prospectus is
printed and distributed to any Underwriter, or shall have occurred at such later
time or date as shall have been consented to by CSFBC and Deutsche Bank. If the
Effective Time of the Initial Registration Statement is prior to the execution
and delivery of this Agreement, the Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 5(a) of this
Agreement. Prior to such Closing Date, no stop order suspending the
effectiveness of a Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
any Selling Stockholder, the Company or the Representatives, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken as one
enterprise which, in the judgment of a majority in interest of the Underwriters
including the Representatives, is material and adverse and makes it impractical
or inadvisable to proceed with completion of the public offering or the sale of
and payment for the Offered Securities; (ii) any downgrading in the rating of
any debt securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any material
suspension or material limitation of trading in securities generally on the New
York Stock Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (iv) any banking moratorium declared
by U.S. Federal or New York authorities; or (v) any outbreak or escalation of
major hostilities in which the United States is involved, any declaration of war
by Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Underwriters
including the Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment for
the Offered Securities.
(d) The Representatives shall have received an opinion, dated such
Closing Date, of O'Melveny & Myers, LLP ("O'Melveny"), counsel for the Company,
to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus; and the Company is qualified as a foreign
corporation in each of the states set forth on Schedule D hereto and is in good
standing in each of those states;
(ii) The Offered Securities delivered on such Closing Date and
all other outstanding shares of the Common Stock of the Company have been duly
authorized by all necessary corporate action on the part of the Company and,
upon payment for and delivery of the Offered Securities in accordance with this
Agreement and the countersigning of the certificate or certificates representing
the Securities by a duly authorized signatory of the registrar for the Company's
Common Stock, the Securities will be validly issued, fully paid and
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nonassessable and the stockholders of the Company have no preemptive rights with
respect to the Securities under applicable law, the Company's charter or bylaws
or, to such counsel's knowledge, any other agreement or instrument to which the
Company is a party or by which the Company is bound;
(iii) The statements in the Prospectus under the caption
"Description of Capital Stock," insofar as they summarize provisions of the
Company's charter and bylaws, fairly represent the information required by Form
S-1;
(iv) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as defined
in the Investment Company Act of 1940;
(v) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required on the part of
the Company for the execution, delivery and performance of this Agreement or the
Custody Agreement in connection with the sale of the Offered Securities, except
such as have been obtained under the Act and such as may be required under state
securities laws;
(vi) The execution and delivery by the Company of this Agreement
and the Custody Agreement do not, and the Company's performance of its
obligations under this Agreement will not, (i) violate the current Delaware
General Corporation Law or any current New York or federal statute, rule or
regulation that we have, in the exercise of customary professional diligence,
recognized as applicable to the Company or to transactions of the type
contemplated by this Agreement except that we express no opinion regarding any
federal securities law or Blue Sky or state securities laws except as otherwise
expressly stated herein, (ii) violate the Company's Second Restated Certificate
of Incorporation or Amended and Restated Bylaws, (iii) violate, breach or result
in a default under any other agreement (the "Other Agreements") listed as an
exhibit to the Registration Statement, or (iv) breach or otherwise violate any
existing obligation of or restriction on the Company under any order, judgment
or decree of any New York or federal court or governmental authority binding on
the Company of which we have knowledge;
(vii) The execution and delivery of this Agreement and the
Custody Agreement have been duly authorized by all necessary corporate action on
the part of the Company, and this Agreement and the Custody Agreement has been
duly executed and delivered by the Company; and
(viii) The Initial Registration Statement was declared effective
under the Act as of the date and time specified in such opinion, the Additional
Registration Statement (if any) was filed and became effective under the Act as
of the date and time (if determinable) specified in such opinion, the Prospectus
either was filed with the Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein or was included in the
Initial Registration Statement or the Additional Registration Statement (as the
case may be), and, to such counsel's knowledge, no stop order suspending the
effectiveness of a Registration Statement or any part thereof has been issued
and [no proceedings for that purpose have been instituted or are pending or
contemplated under the Act;
(ix) Each Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective effective or issue
dates, appeared on its face to comply in all material respects with the
requirements as to form for registration statements on Form S-1 under the Act
and the Rules and Regulations;
(x) The descriptions in the Registration Statements and
Prospectus of statutes, legal and governmental proceedings and contracts and
other documents are accurate and fairly present the information required to be
shown; and such counsel do not know of any legal or governmental proceedings
required to be described in a Registration Statement or the Prospectus which are
not described as required or of any contracts or documents of a character
required to be described in a Registration Statement or the Prospectus or to be
filed as exhibits to a Registration Statement which are not described and filed
as required;
In addition, O'Melveny shall state as follows: In connection with
its participation in conferences in connection with the preparation of the
Registration Statement and the Prospectus, O'Melveny has not independently
verified the accuracy, completeness or fairness of the statements contained
therein, and the limitations
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inherent in the examination made by it and the knowledge available to it are
such that it is unable to assume, and does not assume, any responsibility for
such accuracy, completeness or fairness (except as otherwise specifically stated
in paragraph (iii) above). However, on the basis of O'Melveny's review and
participation in conferences in connection with the preparation of the
Registration Statement and the Prospectus, it does not believe that any part of
a Registration Statement or any amendment thereto, as of its effective date or
as of such Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; or that the Prospectus or any
amendment or supplement thereto, as of its issue date or as of such Closing
Date, contained any untrue statement of a material fact or omitted 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, it being
understood that O'Melveny expresses no opinion or belief as to the financial
statements or other financial data contained in the Registration Statement or
the Prospectus;
(e) The Representatives shall have received the opinion contemplated
in the Power of Attorney executed and delivered by each Evercore Selling
Stockholder and an opinion substantially in the form of Exhibit A attached
hereto, dated such Closing Date, of Simson, Thacher & Bartlett, counsel for the
Evercore Selling Stockholders.
(f) The Representatives shall have received the opinion contemplated
in the Power of Attorney executed and delivered by each Other Selling
Stockholder and an opinion substantially in form of that attached as Exhibit B
hereto, dated such Closing Date, of O'Melveny, counsel for the Other Selling
Stockholders.
(g) The Representatives shall have received from Latham & Watkins,
counsel for the Underwriters, such opinion or opinions, dated such Closing Date,
with respect to the incorporation of the Company, the validity of the Offered
Securities delivered on such Closing Date, the Registration Statements, the
Prospectus and other related matters as the Representatives may require, and the
Selling Stockholders and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such
matters. In rendering such opinion, Latham & Watkins may rely as to the
incorporation of the Company and all other matters governed by Delaware law upon
the opinion of O'Melveny referred to above in Section 6(d).
(h) The Representatives shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal financial
or accounting officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are true and
correct; the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of subparagraphs (1)
and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment of
the applicable filing fee in accordance with Rule 111(a) or (b) under the Act,
prior to the time the Prospectus was printed and distributed to any Underwriter;
and, subsequent to the dates of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(i) The Representatives shall have received a letter, dated such
Closing Date, of PricewaterhouseCoopers LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to in
such subsection will be a date not more than three business days prior to such
Closing Date for the purposes of this subsection.
(j) Prior to the date of this Agreement, the Representatives shall
have received lock-up letters from each of executive officers and directors of
the Company and from all other stockholders and optionholders of the Company.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably requests. CSFBC and Deutsche Bank, acting
together, may in their sole discretion, waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters hereunder,
whether in respect of an Optional Closing Date or otherwise.
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7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter, its
partners, directors and officers and each person, if any who controls such
Underwriter within the meaning of Section 15 of the Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state in any Registration
Statement, or amendment or supplement thereto, a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
arise out of or are based upon the omission or alleged omission to state in the
Prospectus or any amendment or supplement thereto, or any related preliminary
prospectus, a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in subsection
(d) below; and provided, further, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from any preliminary
prospectus the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Offered Securities
concerned, to the extent that a prospectus relating to such Offered Securities
was required to be delivered by such Underwriter under the Act in connection
with such purchase and any such loss, claim, damage or liability of such
Underwriter results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Offered
Securities to such person, a copy of the Prospectus if the Company had
previously furnished copies thereof to such Underwriter.
The Company agrees to indemnify and hold harmless the Designated
Underwriter and each person, if any, who controls the Designated Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act (the "Designated Entities"), from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by or with the consent of the Company for distribution to Participants in
connection with the Directed Share Program or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; (ii) caused by the
failure of any Participant to pay for and accept delivery of Directed Shares
that the Participant agreed to purchase; or (iii) related to, arising out of, or
in connection with the Directed Share Program, other than losses, claims,
damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted from the bad faith or gross negligence of
the Designated Entities.
(b) Each Management Selling Stockholder, severally, will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person who controls such Underwriter within the meaning of Section 15 of the
Act, against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the aggregate
liability of any Management Selling Stockholder pursuant to this Section 7(b)
will be limited to an amount equal to the proceeds, net of the underwriting
discounts, received by such Management Selling Stockholder from such Management
Selling Stockholder's sale of Offered Securities to the
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Underwriters; provided, further, that no Management Selling Stockholder will be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by an Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in subsection
(d) below.
In addition, the Company and each of the Underwriters agree with each of
the Management Selling Stockholders that any claim of such Underwriter against
the Management Selling Stockholders for indemnification, reimbursement or
advancement of expenses pursuant to this Section 7 or for breach of any
representation or warranty in Section 2 hereof shall first be sought by such
Underwriter to be satisfied in full by the Company and shall be satisfied by the
Management Selling Stockholders only to the extent that such claim has not been
satisfied in full by the Company for any reason within the 30-day period
following the date requested for payment in accordance with the terms of this
Agreement. The Company and the Management Selling Stockholders may agree, as
among themselves and without limiting the rights of the Underwriters under this
Agreement, as to the respective amounts of such liability for which they each
shall be responsible, including, without limitation, allocating between the
Company and the Management Selling Stockholders the liability resulting from a
breach of the representations and warranties of the Company and the Management
Selling Stockholders hereunder. The indemnity provided for in this Section 7
shall be in addition to any liability which such Management Selling Stockholder
may otherwise have. No Management Selling Stockholder will, without the prior
written consent of the Representatives, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not any such Representatives or any person who controls any such
Representatives is a party to such claim, action, suit or proceeding), unless
such settlement, compromise or consent includes an unconditional release of all
of the Underwriters and such controlling persons from all liability arising out
of such claim, action, suit or proceeding.
(c) Each Initial Selling Stockholder will indemnify and hold harmless
each Underwriter, its partners, directors and officers and each person who
controls such Underwriter within the meaning of Section 15 of the Act, against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the aggregate liability of
any Initial Selling Stockholder pursuant to this Section 7(c) will be limited to
an amount equal to the proceeds, net of the underwriting discounts, received by
such Initial Selling Stockholder from such Initial Selling Stockholder's sale of
Offered Securities to the Underwriters; provided, further, that no Initial
Selling Stockholder will be liable in any such case unless such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by such Initial Selling Stockholder for use therein, it being
understood and agreed that only such information furnished by any Underwriter
consists of the information described as such in subsection (d) below.
(d) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, and each
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, 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 therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein,
15
<PAGE>
and will reimburse any legal or other expenses reasonably incurred by the
Company and each Selling Stockholder in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the last paragraph at the
bottom of the cover page concerning the terms of the offering by the
Underwriters, the legend concerning over-allotments, stabilizing and passive
market making on the inside front cover page and, the concession and reallowance
figures appearing in the fourth paragraph under the caption "Underwriting."
(e) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b), (c) or (d) above notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b), (c) or (d) above. In case any such
action is brought against any indemnified party and it notifies an indemnifying
party of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. Notwithstanding
anything contained herein to the contrary, if indemnity may be sought pursuant
to the last paragraph in Section 7(a) hereof in respect of such action or
proceeding, then in addition to such separate firm for the indemnified parties,
the indemnifying party shall be liable for the reasonable fees and expenses of
not more than one separate firm (in addition to any local counsel) for the
Designated Underwriter for the defense of any losses, claims, damages and
liabilities arising out of the Directed Share Program, and all persons, if any,
who control the Designated Underwriter within the meaning of either Section 15
of the Act of Section 20 of the Exchange Act. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such (i) settlement includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
(f) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b),
(c) or (d) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses, claims,
damages or liabilities referred to in subsection (a), (b), (c) or (d) above (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Selling Stockholders on the one hand and the Underwriters
on the other from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Stockholder on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and 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 (before
deducting expenses) received by the Company and the Selling Stockholders bear to
the total underwriting discounts and commissions received by the Underwriters.
The 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, the Selling Stockholders or 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 by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (f) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (f). Notwithstanding the provisions of this
subsection (f), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required
16
<PAGE>
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (f) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(g) The obligations of the Company and the Selling Stockholders under
this Section shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC and
Deutsche Bank may make arrangements satisfactory to the Company and the Selling
Stockholders for the purchase of such Offered Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by such
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Underwriters agreed but failed to purchase on
such Closing Date. If any Underwriter or Underwriters so default and the
aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to CSFBC and Deutsche Bank, the Company and the
Selling Stockholders for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter, the
Company or the Selling Stockholders, except as provided in Section 9 (provided
that if such default occurs with respect to Optional Securities after the First
Closing Date, this Agreement will not terminate as to the Firm Securities or any
Optional Securities purchased prior to such termination). As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholders, and the Underwriters pursuant to Section 7 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 8 or the occurrence of any event specified
in clause (iii), (iv) or (v) of Section 6(c), the Company and the Selling
Stockholders will, jointly and severally, reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representatives, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking Department -
Transactions Advisory Group, to Deutsche Bank Securities Inc., 31 West 52nd
Street, New York, New York 10019, Attention: General Counsel, or, if sent to the
Company, the Management Selling Stockholders or the Other Selling Stockholders,
will be mailed, delivered or telegraphed and confirmed to it at 695 Town Center
Drive, Suite 600,
17
<PAGE>
Costa Mesa, California 92626, Attention: Stephen Giutso, or, if sent to the
Evercore Selling Stockholders or any of them, will be mailed, delivered or
telegraphed and confirmed to such Evercore Selling Stockholder at Evercore
Partners L.L.C., 65 East 55th Street, 33rd Floor, New York, New York, 10022,
Attention: David G. Offensend; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective personal representatives and
successors and the officers and directors and controlling persons referred to in
Section 7, and no other person will have any right or obligation hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC and by Deutsche Bank will be binding upon all the Underwriters. David G.
Offensend will act for the Selling Stockholders in connection with such
transactions, and any action under or in respect of this Agreement taken by
David G. Offensend will be binding upon the Selling Stockholders.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
[Signature pages follow]
18
<PAGE>
If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Selling
Stockholders, the Company and the several Underwriters in accordance with its
terms.
Very truly yours,
COMPANY
RESOURCES CONNECTION, INC.
By:___________________________________________
Name:_________________________________________
Title:________________________________________
EVERCORE SELLING STOCKHOLDERS
Evercore Capital Partners L.P.
______________________________________________
By: David G. Offensend
Title: Attorney-in-Fact
Evercore Capital Partners (NQ) L.P.
______________________________________________
By: David G. Offensend
Title: Attorney-in-Fact
Evercore Capital Offshore Partners
______________________________________________
By: David G. Offensend
Title: Attorney-in-Fact
Evercore Co-Investment Partnership L.P.
______________________________________________
By: David G. Offensend
Title: Attorney-in-Fact
OTHER SELLING STOCKHOLDERS
BancBoston Investments Inc.
______________________________________________
By: David G. Offensend
Title: Attorney-in-Fact
S-1
<PAGE>
Mainz Holdings Ltd.
______________________________________________
By: David G. Offensend
Title: Attorney-in-Fact
Richard D. Gersten
______________________________________________
By: David G. Offensend
Title: Attorney-in-Fact
Paul S. Lattianzio
______________________________________________
By: David G. Offensend
Title: Attorney-in-Fact
Gerald Rosenfeld
______________________________________________
By: David G. Offensend
Title: Attorney-in-Fact
Rosenfeld August 2000 Grat
______________________________________________
By: David G. Offensend
Title: Attorney-in-Fact
MANAGEMENT SELLING STOCKHOLDERS
The Murray Family Trust
______________________________________________
By: David G. Offensend
Title: Attorney-in-Fact
Stephen J. Giusto
______________________________________________
By: David G. Offensend
Title: Attorney-in-Fact
S-2
<PAGE>
Brent M. Longnecker
______________________________________________
By: David G. Offensend
Title: Attorney-in-Fact
S-3
<PAGE>
The foregoing Underwriting Agreement is hereby confirmed
and accepted as of the date first above written.
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
Robert W. Baird & Co. Incorporated
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
By: Credit Suisse First Boston Corporation
By:___________________________________________
Name:_________________________________________
Title:________________________________________
By: Deutsche Bank Securities Inc.
By:___________________________________________
Name:_________________________________________
Title:________________________________________
S-4
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Number of Optional
Firm Securities Securities to
Evercore Selling Stockholders to be Sold be Sold
----------------------------------------------------------------- ------------------ ----------------
<S> <C> <C>
Evercore Capital Partners L.P. 824,253 451,226
Evercore Capital Partners (NQ) L.P. 198,619 108,731
Evercore Capital Offshore Partners L.P. 217,288 118,948
Evercore Co-Investment Partnership L.P. 85,774 46,956
------------------ ----------------
Total.......................................................... 1,325,929 725,861
================== ================
</TABLE>
A-1
<PAGE>
SCHEDULE B
<TABLE>
<CAPTION>
Number of
Number of Optional
Firm Securities Securities to
Other Selling Stockholders to be Sold be Sold
----------------------------------------------------------------- ------------------ ----------------
<S> <C> <C>
BancBoston Investments Inc. 64,298 35,199
Mainz Holdings Ltd. 62,205 34,053
Richard D. Gersten 1,829 1,001
Paul S. Lattanzio 14,637 8,013
Gerald Rosenfeld 11,102 5,675
Rosenfeld August 2000 GRAT 20,000 11,351
------------------ ----------------
Total 174,071 95,292
================== ================
</TABLE>
<TABLE>
<CAPTION>
Number of
Number of Optional
Firm Securities Securities to
Management Selling Stockholders to be Sold be Sold
----------------------------------------------------------------- ------------------ ----------------
<S> <C> <C>
The Murray Family Trust -- 49,423
Stephen J. Giusto -- 49,423
Brent M. Longnecker -- 55,000
------------------ ----------------
Total 153,846
================== ================
</TABLE>
B-1
<PAGE>
SCHEDULE C
<TABLE>
<CAPTION>
Number of
Firm Securities
Underwriter to be Purchased
----------------------------------------------------------------- ------------------
<S> <C>
Credit Suisse First Boston Corporation...........................
Deutsche Bank Securities Inc.....................................
Robert W. Baird & Co.............................................
------------------
Total.......................................................... 6,500,000
==================
</TABLE>
C-1
<PAGE>
EXHIBIT A
FORM OPINION OF SIMPSON, THACHER & BARTLETT
TO BE DELIVERED PURSUANT TO SECTION 6(e)
(i) The Evercore Selling Stockholders are the sole registered owners of
the Offered Securities to be sold by the Evercore Selling Stockholders, the
Evercore Selling Stockholders which are Delaware limited partnerships have full
partnership power, right and authority to sell such Offered Securities and upon
payment for and delivery of such Offered Securities in accordance with this
Agreement, the Underwriters will acquire all the rights of the Evercore Selling
Stockholders in the Offered Securities and will also acquire their interest in
such Offered Securities free of any adverse claim.
(ii) The Underwriting Agreement has been duly authorized, executed and
delivered by or on behalf of the Evercore Selling Stockholders.
(iii) The Custody Agreement and Power of Attorney have been duly
authorized, executed and delivered by or on behalf of the Evercore Selling
Stockholders.
(iv) The sale of the Offered Securities by the Evercore Selling
Stockholders and the compliance by the Evercore Selling Stockholders with all of
the provisions of the Custody Agreement and this Agreement will not breach or
result in a default under, any indenture, mortgage deed of trust, loan agreement
or other agreement or instrument identified on the annexed schedule furnished to
us by the Evercore Selling Stockholders, nor will such action violate the
respective partnership agreement of the Evercore Selling Stockholders or any
Federal or New York statute or the Delaware Revised Uniform Limited Partnership
Act or any rule or regulation that has been issued pursuant to any Federal or
New York statute or the Delaware Revised Uniform Limited Partnership Act by any
court or governmental agency or body or court having jurisdiction over the
Evercore Selling Stockholders or any of its subsidiaries or any of its
properties.
(v) No consent, approval, authorization, order, registration or
qualification of or with any Federal or New York governmental agency or body or
any Delaware governmental agency or body acting pursuant to the Delaware Revised
Uniform Limited Partnership Act or, to our knowledge, any Federal or New York
court or any Delaware court acting pursuant to the Delaware Revised Uniform
Limited Partnership Act is required for the compliance by the Evercore Selling
Stockholders with all of the applicable provisions of the Custody Agreement and
this Agreement, except for the registration under the Act and the Exchange Act
of the Offered Securities, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Offered
Securities by the Underwriters.
Exhibit A-1
<PAGE>
EXHIBIT B
FORM OPINION OF O'MELVENY & MYERS
TO BE DELIVERED PURSUANT TO SECTION 6(f)
(i) Upon payment for and delivery to the Underwriters in New York of the
number of Offered Securities sold by each Other Selling Stockholder in
accordance with this Agreement, assuming each of the Underwriters is acquiring
the Offered Securities without notice of any adverse claim, the Underwriters
will acquire the Offered Securities free and clear of any adverse claim as
defined in Article 8 of the Uniform Commercial Code.
(ii) No order, consent, permit or approval of any California, New York
or federal governmental authority is required on the part of each Other Selling
Stockholder for the execution and delivery of the Custody Agreement, this
Agreement or the sale of the Offered Securities, except such as have been
obtained under the Act, and such as may be required under the securities or blue
sky laws of any other jurisdiction.
(iii) Neither the sale of the Offered Securities being sold by each Other
Selling Stockholder under this Agreement nor the consummation of the other
transactions therein contemplated by each Selling Stockholder will (i) violate,
breach or result in a default under any existing obligation of or restriction on
such Other Selling Stockholder under any indenture or other agreement material
to such Other Selling Stockholder or under the charter and bylaws of an Other
Selling Stockholder if the Other Selling Stockholder is a corporation, (ii)
breach or otherwise violate any existing obligation of or restriction on such
Other Selling Stockholder under any order, judgment or decree of any court or
governmental authority binding on such Other Selling Stockholder, or (iii)
violate any current California, New York or federal statute, rule or regulation
recognized as applicable to such Other Selling Stockholder or to the
transactions of the type contemplated by the Custody Agreement or this
Agreement. However, we express no opinion regarding any federal securities
laws, or blue sky or state securities laws, or the provisions of Section 8 of
the Custody Agreement or this Agreement, except as otherwise expressly stated
herein.
(iv) Each of the Custody Agreement and the Power of Attorney has been
duly executed and delivered by each Other Selling Stockholder, and constitutes
the legally valid and binding obligation of each Other Selling Stockholder,
enforceable against each Other Selling Stockholder in accordance with its terms,
except as may be limited by bankruptcy, insolvency, moratorium or similar laws
relating to or affecting creditors' rights generally (including, without
limitation, fraudulent conveyance laws) and by general principles of equity,
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing and the possible unavailability of specific performance
or injunctive relief, regardless of whether considered in a proceeding in equity
or at law.
(v) Upon execution and delivery of this Agreement by one of the
Attorneys (as defined in the Power of Attorney) on behalf of each Other Selling
Stockholder, this Agreement will have been duly executed and delivered by such
Other Selling Stockholder.
Exhibit B-1
