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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 3, 1995
REGISTRATION NO. 33-88768
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 4
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MICROS SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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MARYLAND 52-1101488
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
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12000 BALTIMORE AVENUE, BELTSVILLE, MARYLAND 20705-1291
(301) 210-6000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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A. L. GIANNOPOULOS, PRESIDENT AND CHIEF EXECUTIVE OFFICER
MICROS SYSTEMS, INC.
12000 BALTIMORE AVENUE, BELTSVILLE, MARYLAND 20705-1291
(301) 210-6000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copies to:
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JOHN T. CONNOR, JR., ESQ. KRIS F. HEINZELMAN, ESQ. GERALD S. TANENBAUM, ESQ.
CHADBOURNE & PARKE CRAVATH, SWAINE & MOORE CAHILL GORDON & REINDEL
30 ROCKEFELLER PLAZA 825 EIGHTH AVENUE 80 PINE STREET
NEW YORK, NEW YORK 10112 NEW YORK, NEW YORK 10019 NEW YORK, NEW YORK 10005
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such State.
PROSPECTUS Subject to Completion
May 3, 1995
4,849,123 Shares
MICROS(R)
MICROS SYSTEMS, INC.
Common Stock
(par value $.025 per share)
Up to 4,849,123 shares of Common Stock, par value $.025 per share (the "Common
Stock"), of MICROS Systems, Inc. (the "Company") may be offered from time to
time by Westinghouse Electric Corporation ("Westinghouse") or Westinghouse
Holdings Corporation, a wholly-owned subsidiary of Westinghouse ("Transferee"),
to whom Westinghouse may transfer any or all shares of Common Stock owned by it
prior to any sale thereof (Westinghouse and Transferee are hereinafter referred
to collectively as the "Selling Stockholder"). See "Principal and Selling
Stockholder." The Company will not receive any proceeds from the sale of such
shares.
The Common Stock is quoted on the Nasdaq National Market under the symbol
"MCRS."
SEE "CERTAIN INVESTMENT CONSIDERATIONS" FOR INFORMATION THAT SHOULD BE
CONSIDERED BY PROSPECTIVE INVESTORS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The shares of Common Stock to which this Prospectus relates may from time to
time be offered and sold by the Selling Stockholder to or through underwriters,
through one or more agents or dealers or directly to purchasers. There is no
agreement at this time between the Selling Stockholder and any underwriter with
respect to such shares of Common Stock. The name of any underwriter, dealer or
agent involved in the offering of any of such shares of Common Stock will be set
forth in the accompanying Prospectus Supplement. The accompanying Prospectus
Supplement will also set forth the amounts proposed to be purchased by such
underwriter, dealer or agent, any applicable fee, commission or discount
arrangements with them and the initial offering price. Unless otherwise
specified in the accompanying Prospectus Supplement, the Selling Stockholder
will have the sole right to accept or reject, in whole or in part, any offer to
purchase shares of Common Stock and reserves the right to withdraw, cancel or
modify, without notice, the offer to sell shares of Common Stock contained in
this Prospectus and in any accompanying Prospectus Supplement. See "Plan of
Distribution" for possible indemnification arrangements for the agents and
underwriters. This Prospectus may not be used in connection with the sale of any
Common Stock unless accompanied by the applicable Prospectus Supplement.
, 1995
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No person is authorized to give any information or to make any representation
not contained or incorporated by reference in this Prospectus or any
accompanying Prospectus Supplement and, if given or made, such information or
representation must not be relied upon as having been authorized by the Company,
the Selling Stockholder or any underwriter, agent or dealer. Neither this
Prospectus nor any accompanying Prospectus Supplement constitutes an offer to
sell or a solicitation of an offer to buy any securities in any jurisdiction in
which such offer or solicitation is not authorized or in which the person making
such offer or solicitation is not qualified to do so or to any person to whom it
is unlawful to make such offer or solicitation. Neither the delivery of this
Prospectus or any accompanying Prospectus Supplement nor any sale made hereunder
or thereunder shall, under any circumstances, create any implication that the
information contained herein or therein is correct as of any time subsequent to
the date hereof or thereof.
TABLE OF CONTENTS
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Page
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Available Information....................... 3
Incorporation of Certain Documents by
Reference................................. 3
The Company................................. 4
Certain Investment Considerations........... 4
Use of Proceeds............................. 6
Management Compensation and Changes......... 7
<CAPTION>
Page
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Principal and Selling Stockholder........... 8
Description of Capital Stock................ 9
Plan of Distribution........................ 11
Legal Matters............................... 12
Experts..................................... 12
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities of the Commission at the Commission's
office at 450 Fifth Street, N.W., Washington, D.C. 20549 and at the Regional
Offices of the Commission at 7 World Trade Center, New York, New York 10048 and
500 West Madison Street, Chicago, Illinois 60661. Copies of such material can be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates. The Common Stock is
quoted on the Nasdaq National Market and reports, proxy statements and other
information concerning the Company can be inspected and copied at the offices of
Nasdaq Operations, 1735 K Street, N.W., Washington, D.C. 20006.
This Prospectus does not contain all the information set forth in the
Registration Statement of which this Prospectus is a part, or any amendments
thereto, certain portions of which have been omitted pursuant to the
Commission's rules and regulations. The information so omitted may be obtained
from the Commission's principal office in Washington, D.C. upon payment of the
fees prescribed by the Commission. Any statements contained herein concerning
the provisions of any document are not necessarily complete, and in each
instance reference is made to the copy of such document filed as an exhibit to
the Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the Commission
(File No. 0-9993) are incorporated herein by reference:
(i) the Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1994;
(ii) the Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended September 30, 1994 and December 31, 1994;
(iii) the Company's Current Reports on Form 8-K dated October 11, 1994,
November 14, 1994 and February 28, 1995; and
(iv) the description of the Common Stock contained in the Company's
Registration Statement on Form 8-A dated October 23, 1981 by
incorporation by reference to the Company's Registration Statement
on Form S-1 (Registration No. 2-69969) and in the amendment to the
Company's Charter filed December 8, 1986 included as part of
Exhibit 3 to the Company's Annual Report of Form 10-K for the
fiscal year ended June 30, 1990.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Common Stock
offered hereby shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute part of this Prospectus. The Company will provide without charge
to each person to whom this Prospectus is delivered, upon such person's written
or oral request, a copy of any and all of the documents that have been
incorporated by reference in this Prospectus (other than exhibits to such
documents unless such exhibits are specifically incorporated by reference into
such documents). Any such request should be directed to the Corporate Secretary
of MICROS Systems, Inc., 12000 Baltimore Avenue, Beltsville, Maryland 20705-1291
(telephone number (301) 210-6000).
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THE COMPANY
References to MICROS or the Company herein shall refer to MICROS Systems, Inc.
and its subsidiaries, unless the context otherwise indicates.
The Company is a leading worldwide designer, manufacturer, supplier and servicer
of point-of-sale ("POS") computer systems for hospitality providers, principally
full service and fast food restaurants, including restaurants located in hotels
and other lodging establishments. MICROS POS systems consist of terminals,
display devices, printers, computers and software which provide transaction
processing, in-store control and information management capabilities. The
Company also markets and distributes property management information systems
("PMS") products which provide reservation, guest accounting and other
information management capabilities to hotels and other lodging establishments.
The PMS products marketed and distributed by the Company are supplied by Fidelio
Software GmbH, a German company ("Fidelio"). MICROS owns a 30% interest in
Fidelio and has an option to acquire the remaining 70%. The Company also
provides service and support for its POS and PMS products, including
installation, training, hardware and software maintenance, spare parts, media
supplies and consulting services.
MICROS Systems, Inc. was incorporated in the State of Maryland in 1977 as Picos
Manufacturing, Inc. and, in 1978, changed its name to MICROS Systems, Inc. The
Company's executive offices and its main administrative, manufacturing, sales,
marketing, customer service and product development facilities are located at
12000 Baltimore Avenue, Beltsville, Maryland 20705-1291, and its telephone
number is (301) 210-6000.
As of December 31, 1994, MICROS was a 61.8%-owned subsidiary of Westinghouse.
CERTAIN INVESTMENT CONSIDERATIONS
HOSPITALITY INDUSTRY ECONOMY
MICROS product sales are dependent in large part on the health of the
hospitality industry, which in turn is dependent on levels of travel, tourism
and business entertaining. Although the hospitality industry has recently
experienced profitability and growth after a recessionary period, there can be
no assurance that profitability and growth will continue. The hospitality
industry is affected by a variety of factors, including war, global and regional
instability, natural disasters and general economic conditions. Adverse
developments in the hospitality industry could materially adversely affect the
Company's business, operating results and financial condition.
COMPETITION
The markets in which the Company competes are highly competitive. There are
currently at least three dozen suppliers who offer some form of sophisticated
POS system similar to the Company's and over 100 PMS competitors worldwide. Some
of these competitors are larger than the Company and have access to
substantially greater financial and other resources than does the Company. The
rapid rate of technological change in the industry ensures that the Company will
face competition not only from new products designed by existing companies, but
also from products designed by companies not presently competing with the
Company, which products may have features not presently available on MICROS
products. The Company believes that its competitive ability depends on its
product development capability, its extensive distribution channels in the POS
and the PMS markets and its customer service capability. There can be no
assurance that the Company will be able to continue to compete effectively in
the future.
DEPENDENCE UPON KEY PERSONNEL; MANAGEMENT OF POTENTIAL GROWTH
The Company's future success and potential growth depend in part on its ability
to retain its key management and technical and sales personnel and to recruit,
train and retain sufficient numbers of other highly qualified managerial,
technical and sales personnel on a continuing basis. There can be no assurance
that the Company will be able to retain its key management or technical and
sales personnel or that it will be able to attract and retain sufficient numbers
of other highly qualified managerial, technical and sales personnel. The
inability to retain or attract such personnel could materially adversely affect
the Company's business, operating results and financial condition. In addition,
the Company's ability to manage potential growth successfully will require the
Company to continue to improve its operational, management and financial systems
and controls.
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RESEARCH AND DEVELOPMENT; TECHNOLOGICAL CHANGE
The products sold by the Company are subject to rapid and continual
technological change. Products available from the Company, as well as
competitors, have increasingly offered a wider range of features and
capabilities. The Company's product development strategy is to provide upwardly
compatible systems incorporating the newest technologies. There can be no
assurance that the Company will be able to continue funding research and
development at levels sufficient to enhance its current product offerings or
will be able to develop and introduce on a timely basis new products that keep
pace with technological developments and emerging industry standards and address
the evolving needs of its customers. There also can be no assurance that the
Company will not experience difficulties that will result in delaying or
preventing the successful development, introduction and marketing of new
products or that its new products and product enhancements will adequately meet
the requirements of the marketplace or achieve any significant degree of market
acceptance. The inability of the Company, for any reason, to develop and
introduce new products and product enhancements in a timely manner in response
to changing market conditions or customer requirements could materially
adversely affect the Company's business, operating results and financial
condition.
GROWTH RATE AND MARGINS
The Company has recently experienced rapid revenue growth at a rate that it
believes has significantly exceeded that of the global market for POS computer
systems and PMS products for the hospitality industry. Although the Company
currently anticipates continued revenue growth at a rate in excess of such
market, and therefore an increase in its overall market share, it does not
expect to maintain growth at recent levels and there can be no assurance that
any particular level of growth can be achieved. In addition, due to the
competitive nature of the market, the Company recently has experienced greater
gross margin pressure on its products than it has in the past, and the Company
expects this trend to continue. There can be no assurance that the Company will
be able to sufficiently increase sales of its higher margin products, including
software and services, to prevent declines in the Company's overall gross
margin.
FLUCTUATIONS IN QUARTERLY RESULTS
The Company's quarterly operating results have varied in the past and may vary
in the future depending upon such factors as the timing of new product
introductions, changes in the pricing and promotion policies of the Company and
its competitors, market acceptance of new products and enhanced versions of
existing products and the capital expenditure budgets of its customers. Although
the Company does not consider its business to be seasonal, for a variety of
reasons, including certain of those noted above, during each of the past three
fiscal years and the current fiscal year the Company's revenue and income from
operations in the third fiscal quarter have shown declines from those for the
second fiscal quarter. The Company believes that quarter-to-quarter comparisons
of its results of operations are not necessarily meaningful or indicative of
future performance.
DEPENDENCE ON PMS SUPPLIER
The failure of Fidelio to continue to develop PMS products or other adverse
developments in the business of Fidelio or the Company's relationship with
Fidelio could adversely affect the Company's ability to supply PMS products and,
as a result, could materially adversely affect the Company's business, operating
results and financial condition.
INCREASED COSTS AS AN INDEPENDENT COMPANY
Westinghouse has heretofore arranged for the provision of certain services to
the Company at costs less than the Company believes it could have obtained on
its own. These arrangements will be replaced by the Company with its own
contracts as and when the Company elects to do so or is no longer eligible to
participate in such arrangements. The Company estimates that the incremental
cost to it of purchasing such services without the benefit of participating in
programs of Westinghouse could total approximately $1.0 million per year on a
pre-tax basis. See "Principal and Selling Stockholder." As of the effective date
of the Registration Statement of which this Prospectus is a part, the Company's
President and Chief Executive Officer became a full-time employee of the
Company. Prior to such date, he was a full-time employee of Westinghouse and was
compensated by Westinghouse, receiving no compensation from the Company. His
compensation arrangement with the Company extends through December 31, 1999 and
provides for a fiscal 1995 salary at an annual rate of $193,000 and a fiscal
1995 target bonus of $110,000, the actual amount of the bonus paid to be based
on certain performance criteria and not to exceed 200% of the target bonus. Such
annual salary and target bonus will each increase $10,000 each July 1 hereafter.
See "Management Compensation and Changes."
5
<PAGE> 7
In addition, Westinghouse, as an incentive to 11 key officers to remain with the
Company for a period of two years following the effective date of the
Registration Statement of which this Prospectus is a part, has agreed to make
payments to such officers aggregating up to approximately $1.25 million, payable
in three equal installments promptly after such effective date and on the first
and second anniversaries of such effective date (subject to the officer
remaining employed by the Company on the relevant payment date). Even though
such payments will be entirely funded by Westinghouse and will not require any
use of the Company's cash, for accounting purposes, one-third of such payments
will be required to be reflected as compensation expense in the Company's
financial statements on the first payment date with the remainder to be
reflected as compensation expense over the 24-month period following the
effective date of the Registration Statement of which this Prospectus is a part.
MARKET FOR COMMON STOCK
The Company's Common Stock is quoted on the Nasdaq National Market. Prior to the
date of this Prospectus, there has been limited trading in the Common Stock and
there can be no assurance that an active market for the Common Stock will
develop or continue after any sale of shares of Common Stock to which this
Prospectus relates. Accordingly, no assurance can be given as to the liquidity
of the market for the Common Stock or the price at which any sales may occur,
which price will depend upon a number of factors, many of which are beyond the
control of the Company.
POSSIBLE EFFECTS OF MARYLAND ANTI-TAKEOVER PROVISIONS
Certain provisions of the Maryland General Corporation Law (the "MGCL") may
discourage persons or entities from attempting to gain control of a corporation
that is subject to such provisions. The MGCL imposes certain statutory
requirements with respect to "business combinations," such as mergers and other
similar transactions and specified transfers of assets and securities, between a
Maryland corporation and a person who, directly or indirectly, beneficially owns
10% or more of the voting power of the then-outstanding voting stock of the
corporation or an affiliate of such a stockholder. The MGCL also contains
limitations on voting rights of shares acquired in a "control share acquisition"
(an acquisition in which certain thresholds of ownership of a Maryland
corporation's voting stock are met or exceeded). For a more detailed description
of these MGCL provisions, see "Description of Capital Stock--Maryland
Anti-takeover Provisions."
USE OF PROCEEDS
All of the shares of Common Stock offered hereby are being offered for sale by
the Selling Stockholder. The Company will not receive any of the proceeds from
the sale of such shares.
6
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MANAGEMENT COMPENSATION AND CHANGES
As of the effective date of the Registration Statement of which this Prospectus
is a part, A.L. Giannopoulos, the Company's President and Chief Executive
Officer, became a full-time employee of the Company. Prior to such date, he was
a full-time employee of Westinghouse and was compensated by Westinghouse,
receiving no compensation from the Company. Mr. Giannopoulos' compensation
arrangement with the Company extends through December 31, 1999 and provides for
a fiscal 1995 salary at an annual rate of $193,000 and a fiscal 1995 target
bonus of $110,000, the actual amount of the bonus paid to be based on certain
performance criteria and not to exceed 200% of the target bonus. Such annual
salary and target bonus will each increase $10,000 each July 1 hereafter.
In addition, Westinghouse, as an incentive to 11 key officers to remain with the
Company for a period of two years following the effective date of the
Registration Statement of which this Prospectus is a part, has agreed to make
payments to such officers aggregating up to approximately $1.25 million, payable
in three equal installments promptly after such effective date and on the first
and second anniversaries of such effective date (subject to the officer
remaining employed by the Company on the relevant payment date). Even though
such payments will be entirely funded by Westinghouse and will not require any
use of the Company's cash, for accounting purposes, one-third of such payments
will be required to be reflected as compensation expense in the Company's
financial statements on the first payment date with the remainder to be
reflected as compensation expense over the 24-month period following the
effective date of the Registration Statement of which this Prospectus is a part.
In May 1995, the Company authorized the grant to certain plan participants on or
after the effective date of the Registration Statement of which this Prospectus
is a part, pursuant to the Company's 1991 Stock Option Plan, of options to
purchase an aggregate of 186,000 shares of Common Stock at an exercise price
equal to the closing sale price of the Common Stock on the date of grant.
Pursuant to a Stock Unit Purchase Agreement dated October 30, 1986, as amended
by a letter agreement dated May 2, 1995, between Westinghouse and the Company
(collectively, the "Purchase Agreement"), for so long as the Selling Stockholder
holds not less than 18% of the then issued and outstanding shares of Common
Stock, the Company shall use its best efforts to cause the Board of Directors of
the Company to nominate as Directors of the Company such two representatives as
the Selling Stockholder may designate.
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PRINCIPAL AND SELLING STOCKHOLDER
The Selling Stockholder owns 4,849,123 shares of Common Stock, representing
61.8% of the outstanding Common Stock as of December 31, 1994. If all of the
shares of Common Stock to which this Prospectus relates are sold, the Selling
Stockholder will not own any shares of Common Stock.
The Company obtains certain insurance coverage and other services through
arrangements negotiated by Westinghouse for itself and its subsidiaries and
affiliates. These arrangements will be replaced by the Company with its own
contracts as and when the Company elects to do so or is no longer eligible to
participate in such arrangements. The Company estimates that the incremental
cost to it of purchasing such services without the benefit of participating in
programs of Westinghouse could total approximately $1.0 million per year on a
pre-tax basis. Westinghouse has indicated its willingness to work with the
Company to establish new service arrangements in efforts to minimize any
incremental costs thereof.
The Company's President and Chief Executive Officer, Mr. Giannopoulos, was
formerly a full-time employee of Westinghouse. See "Management Compensation and
Changes."
The shares of Common Stock owned by the Selling Stockholder and offered hereby
have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), pursuant to the exercise by Westinghouse of its rights to
request such registration under the Purchase Agreement. Pursuant to the terms of
the Purchase Agreement, Westinghouse shall pay the expenses incurred by the
Company in connection with the registration and sale of the shares of Common
Stock to which this Prospectus relates. In addition to the Registration
Statement of which this Prospectus is a part, the Selling Stockholder
will have the right under the Purchase Agreement to request one additional
registration under the Securities Act for the sale of all or a portion (subject
to a minimum of 100,000 shares) of its shares, as well as the right to include
such shares in a registration statement filed by the Company under the
Securities Act for the sale of shares by the Company. In the Purchase
Agreement, the Company has agreed to indemnify Westinghouse and Transferee, if
it is the Selling Stockholder, in respect of certain liabilities, including
liabilities under the federal securities laws.
8
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DESCRIPTION OF CAPITAL STOCK
COMMON STOCK
The following description of the Common Stock of the Company includes a summary
of certain provisions of the Company's Charter (the "Charter") and its By-laws,
as amended (the "By-laws"). Such description does not purport to be complete and
is subject to the detailed provisions of, and is qualified in its entirety by
reference to, the Charter and the By-laws, copies of which are on file with the
Commission and are incorporated by reference as exhibits to the Registration
Statement of which this Prospectus is a part.
The Company is authorized by its Charter to issue up to 10,000,000 shares of
Common Stock, par value $.025 per share. As of December 31, 1994, there were
7,843,761 shares of Common Stock issued and outstanding, all of which are
validly issued, fully paid and nonassessable. Holders of Common Stock are
entitled to cast one vote per share on all matters voted upon by stockholders.
Except as otherwise provided in the Charter or the MGCL, a majority of the votes
cast at a meeting of stockholders at which a quorum is present is sufficient to
elect directors and to approve any matter which properly comes before the
meeting. Holders of Common Stock are entitled to receive such dividends as are
authorized and declared by the Board of Directors. The Charter provides that the
holders of Common Stock shall have preemptive rights to acquire additional
shares upon any new issue of Common Stock. Upon liquidation of the Company,
holders of Common Stock are entitled to share equally and ratably in any assets
available for distribution to them.
Under the MGCL and the Charter, any amendment to the Charter shall be approved
by the vote of a majority of the shares of Common Stock entitled to vote on the
matter; however, any amendment to the Charter which changes the terms of any of
the outstanding stock shall not be valid unless such change of terms shall have
been authorized by the holders of four-fifths of all such stock at the time
outstanding, by vote at a meeting or in writing with or without a meeting.
Special meetings of stockholders of the Company may be called at any time by the
Board of Directors or the President, and shall be called by the President or the
Secretary at the written request of the holders of 25% of the shares of Common
Stock then outstanding and entitled to vote, or as otherwise required by law.
The transfer agent and registrar for the Common Stock is First National Bank of
Maryland, Baltimore, Maryland.
For a description of certain Securities Act registration rights granted to the
Selling Stockholder, see "Principal and Selling Stockholder."
MARYLAND ANTI-TAKEOVER PROVISIONS
Business Combinations
The MGCL imposes certain statutory requirements with respect to certain
"business combinations," such as mergers and other similar transactions and
specified transfers of assets and securities, between a Maryland corporation and
either (i) a person who, directly or indirectly, beneficially owns 10% or more
of the voting power of the outstanding voting stock of the corporation or (ii)
an affiliate or associate of the corporation who, at any time within the
two-year period prior to the date in question, was the beneficial owner,
directly or indirectly, of 10% or more of the voting power of the then-
outstanding voting stock of the corporation (such person, affiliate or
associate, an "Interested Stockholder").
Under the MGCL, certain business combinations between a Maryland corporation and
an Interested Stockholder may not be consummated for a period of five years
following the most recent date on which the Interested Stockholder becomes an
Interested Stockholder. Following the five-year period, any such business
combination must be recommended by the board of directors of the corporation and
approved by the affirmative vote of at least (i) 80% of the votes entitled to be
cast by the holders of outstanding shares of voting stock and (ii) 66- 2/3% of
the votes entitled to be cast by the holders of the voting stock held by
stockholders other than the Interested Stockholder with whom (or with whose
affiliate) the business combination is to be effected, unless the corporation's
common stockholders receive a minimum price (as defined in the MGCL) for their
shares and the consideration is received in the same form as previously paid by
the Interested Stockholder for its shares. A business combination with an
Interested Stockholder which is approved by, or exempted from the statute by,
the board of directors of the Maryland corporation at any time before an
Interested Stockholder first becomes an Interested Stockholder is not subject to
the special voting requirements. An amendment to a Maryland corporation's
charter electing not to be subject to the foregoing requirements must be
approved by the affirmative vote of at least 80% of the votes entitled to be
cast by all holders of outstanding shares of voting stock and 66- 2/3% of the
votes entitled to be cast by holders of outstanding shares of voting stock who
are not Interested Stockholders. Because the
9
<PAGE> 11
Company had a stockholder who held more than 10% of its voting stock on July 1,
1983, any business combination between the Company and a current or future
Interested Stockholder would not be subject to the five-year moratorium or the
supermajority vote requirements of the MGCL; however, there can be no assurance
that the Board of Directors of the Company will not elect to make such
provisions applicable to the Company in the future as permitted under the MGCL.
Control Share Acquisitions
The MGCL provides that "control shares" of a Maryland corporation acquired in a
"control share acquisition" have no voting rights unless approved by a vote of
two-thirds of the votes entitled to be cast on the matter, excluding shares of
stock owned by the acquiror, by officers or by directors who are employees of
the corporation. "Control shares" are voting shares of stock which, if
aggregated with all other such shares of stock previously acquired by the
acquiror, or in respect of which the acquiror is able to exercise or direct the
exercise of voting power (except solely by virtue of a revocable proxy), would
entitle the acquiror, directly or indirectly, to exercise or direct the exercise
of voting power in electing directors within one of the following ranges of
voting power: (i) one-fifth or more but less than one-third, (ii) one-third or
more but less than a majority or (iii) a majority or more of all voting power.
Control shares do not include shares the acquiring person is entitled to vote as
a result of having previously obtained stockholder approval. A "control share
acquisition" means the acquisition, directly or indirectly, of control shares,
subject to certain exceptions.
A person who has made or proposes to make a control share acquisition, upon
satisfaction of certain conditions, may compel the corporation to call a special
meeting of stockholders to be held within 50 days of the demand to consider the
voting rights of the shares. If no request for a meeting is made, the
corporation may itself present the question at any stockholders meeting.
If voting rights are not approved at the meeting or if the acquiring person does
not deliver an acquiring person statement as required by the statute, then,
subject to certain conditions and limitations, the corporation may redeem any or
all of the control shares (except those for which voting rights have previously
been approved) for fair value. If voting rights for control shares are approved
at a stockholders meeting, resulting in the acquiring person controlling a
majority of the voting power, then all other stockholders shall be entitled to
demand and receive from the corporation for their stock the highest price per
share paid by the acquiring person in the control share acquisition.
The control share acquisition statute does not apply (a) to shares acquired in a
merger, consolidation or share exchange if the corporation is a party to the
transaction or (b) to acquisitions approved or exempted by the charter or
by-laws of the corporation. There are currently no such exemptive provisions in
the Charter or By-laws of the Company.
Reference is made to the full text of the foregoing statutes for their entire
terms, and the partial summary contained herein is not intended to be complete.
10
<PAGE> 12
PLAN OF DISTRIBUTION
The Company has been advised that the shares of Common Stock to which this
Prospectus relates may from time to time be offered and sold by the Selling
Stockholder to or through underwriters, through one or more agents or dealers or
directly to purchasers. The distribution of the Common Stock being offered (the
"Offered Shares") may be effected from time to time in one or more transactions
at a fixed price or prices, which may be changed, at market prices prevailing at
the time of sale, at prices related to such prevailing market prices or at
negotiated prices.
Unless otherwise specified in the accompanying Prospectus Supplement, the
obligations of any underwriters to pay for and accept delivery of the Offered
Shares will be subject to the approval of certain legal matters by their counsel
and certain other conditions, and the underwriters will be committed to take and
pay for all of the Offered Shares if any are taken. Any public offering price
and any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
The Company has been further advised that offers to purchase Common Stock may be
solicited directly by the Selling Stockholder or by agents designated by the
Selling Stockholder from time to time. Unless otherwise specified in the
accompanying Prospectus Supplement, any such agent will be acting on a
reasonable efforts basis for the period of its appointment. Unless otherwise
specified in the accompanying Prospectus Supplement, the Selling Stockholder
will have the sole right to accept or reject, in whole or in part, any offer to
purchase shares of Common Stock and reserves the right to withdraw, cancel or
modify, without notice, the offer to sell shares of Common Stock contained in
this Prospectus and in any accompanying Prospectus Supplement.
If sold through agents, the Offered Shares may be sold from time to time by
means of (i) ordinary brokers' transactions, (ii) block transactions (which may
involve crosses) in accordance with the rules of any stock exchange or trading
system on which the Common Stock is admitted for trading privileges (the
"Markets"), in which such an agent may attempt to sell the Common Stock as agent
but may position and resell all or a portion of the blocks as principal, (iii)
"fixed price offerings" off the Markets (as described below) or (iv) any
combination of such methods of sale, in each case at market prices prevailing at
the time of sale in the case of transactions on the Markets and at prices
related to prevailing market prices or negotiated prices in the case of
transactions off the Markets. In connection therewith, distributors' or sellers'
commissions may be paid or allowed that will not exceed those customary in the
types of transactions involved. If an agent purchases Common Stock as principal,
such stock may be resold by any of the methods of sale described above.
From time to time an agent may conduct a "fixed price offering" of Common Stock
off the Markets. In such case, such agent would purchase a block of shares from
the Selling Stockholder and would form a group of selected dealers to
participate in the resale of the shares. Any such offering will be described in
the accompanying Prospectus Supplement setting forth the terms of the offering
and the number of shares being offered.
If a dealer is utilized in the sale of Offered Shares, the Selling Stockholder
may sell such Offered Shares to the dealer as principal. The dealer may then
resell such Offered Shares to the public at varying prices determined by such
dealer at the time of resale.
In connection with the sale of Common Stock, underwriters or agents may receive
compensation from the Selling Stockholder or from purchasers of Common Stock for
whom they may act as agents in the form of discounts, concessions or
commissions. Underwriters or agents may sell Common Stock to or through dealers,
and such dealers may receive compensation in the form of discounts, concessions
or commissions from the underwriters or agents and/or commissions from the
purchasers for whom they may act as agents. Underwriters, agents and dealers
that participate in the distribution of Common Stock may be deemed to be
underwriters, and any discounts or commissions received by them from the Selling
Stockholder and any profit on the resale of Common Stock by them may be deemed
to be underwriting discounts and commissions, under the Securities Act. Any such
underwriter or agent will be identified, and any such compensation payable by
the Selling Stockholder will be described, in the accompanying Prospectus
Supplement.
Under agreements which may be entered into by the Company and the Selling
Stockholder, underwriters and agents who participate in the distribution of
Common Stock may be entitled to indemnification by Westinghouse and the Company
against certain civil liabilities, including liabilities under the federal
securities laws, or to contribution by Westinghouse and the Company to payments
which such underwriters or agents may be required to make in respect thereof.
Underwriters, agents and dealers may engage in transactions with or perform
services for the Selling Stockholder and/or the Company in the ordinary course
of business.
11
<PAGE> 13
LEGAL MATTERS
The legality of the shares of Common Stock offered hereby will be passed upon
for the Company by Ballard Spahr Andrews & Ingersoll, Baltimore, Maryland.
Certain legal matters in connection with the sale of shares of Common Stock to
which this Prospectus relates will be passed upon for the Company by Chadbourne
& Parke, New York, New York, for the Selling Stockholder by Louis J. Briskman,
General Counsel of Westinghouse, and Cravath, Swaine & Moore, New York, New
York, and for the underwriters, if any, by Cahill Gordon & Reindel (a
partnership including a professional corporation), New York, New York. With
respect to certain matters relating to the laws of the State of Maryland,
Chadbourne & Parke, Louis J. Briskman, Cravath, Swaine & Moore and Cahill Gordon
& Reindel may rely upon the opinion of Ballard Spahr Andrews & Ingersoll.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1994, have been so incorporated in reliance on the report of Price
Waterhouse LLP, independent accountants, given on the authority of said firm as
experts in auditing and accounting.
With respect to the unaudited consolidated financial information for the three
months ended September 30, 1994 and 1993 and the six months ended December 31,
1994 and 1993, incorporated by reference in this Prospectus, Price Waterhouse
LLP reported that they have applied limited procedures in accordance with
professional standards for a review of such information. However, their separate
reports dated October 28, 1994 and February 8, 1995, incorporated by reference
herein, state that they did not audit and they do not express an opinion on that
unaudited consolidated financial information. Price Waterhouse LLP has not
carried out any significant or additional audit tests beyond those which would
have been necessary if their reports had not been incorporated by reference.
Accordingly, the degree of reliance on their reports on such information should
be restricted in light of the limited nature of the review procedures applied.
Price Waterhouse LLP is not subject to the liability provisions of Section 11 of
the Securities Act for their reports on the unaudited consolidated financial
information because neither such report is a "report" or a "part" of the
Registration Statement prepared or certified by Price Waterhouse LLP within the
meaning of Sections 7 and 11 of the Securities Act.
12
<PAGE> 14
MICROS(R)
<PAGE> 15
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the distribution of the securities being
registered hereby, other than underwriting discounts and commissions, are as
follows:
<TABLE>
<S> <C> <C>
Securities and Exchange Commission Registration Fee $ 54,762
*Legal Fees and Expenses 755,000
*Accountants' Fees and Expenses 160,000
*Printing Expenses 150,000
*State Qualification Expenses (including legal fees) 12,500
*Miscellaneous 17,738
----------
*Total $1,150,000
=========
</TABLE>
- ---------
* Estimated.
All of the expenses in connection with the distribution of the securities
registered hereby will be borne by the Selling Stockholder.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Charter, as amended, of MICROS Systems, Inc. ("MICROS" or the "Company")
provides that the Company shall indemnify its directors and officers, whether
serving the Company or, at its request, another entity, to the fullest extent
required or permitted by the general laws of the State of Maryland now or
hereafter in force, including the advance of expenses under the procedures
provided by such laws. The Company's Charter also provides that the Company
shall indemnify its other agents or employees, whether serving the Company or,
at its request, another entity, to such an extent as is authorized by the Board
of Directors or the By-laws of the Company and as permitted by law.
Section 2-418 of the Maryland General Corporation Law (the "MGCL") requires a
corporation (unless its charter provides otherwise) to indemnify a director or
officer who has been successful, on the merits or otherwise, in the defense of
any proceeding to which such director or officer is a made a party by reason of
such director's or officer's service in that capacity. The Charter does not
currently exempt the Company from such requirements.
Section 2-418 of the MGCL provides that a corporation may indemnify any director
or officer made a party to any proceeding by reason of service in these or
certain other capacities against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by the director or officer in connection
with the proceeding, unless it is established that (i) the act or omission of
the director or officer was material to the matter giving rise to the proceeding
and (a) was committed in bad faith or (b) was the result of active and
deliberate dishonesty; (ii) the director or officer actually received an
improper personal benefit in money, property or services; or (iii) in the case
of any criminal proceeding, the director or officer had reasonable cause to
believe that the act or omission was unlawful. Termination of any proceeding by
judgment, order or settlement does not create a presumption that the director
did not meet the requisite standard of conduct. Termination of any proceeding by
conviction, or plea of nolo contendere or its equivalent, or entry of an order
of probation prior to judgment, creates a rebuttable presumption that the
director did not meet the requisite standard of conduct. Indemnification is not
permitted unless authorized for a specific proceeding, after a determination
that indemnification is permissible because the requisite standard of conduct
designated above has been met.
Under Section 2-418 of the MGCL, a director or officer may not be indemnified by
a Maryland corporation in respect of any proceeding by or in the right of the
corporation in which such director or officer has been adjudged liable to the
corporation or in respect of any proceeding charging improper personal benefit
in which such director or officer was adjudged to be liable on the basis that
personal benefit was improperly received.
The reasonable expenses incurred by a director who is a party to a proceeding
may be paid or reimbursed by the Company in advance of the final disposition of
the proceeding upon receipt by the Company of both a written affirmation by the
director of his good faith belief that the standard of conduct necessary for
indemnification by the Company has been met and a written undertaking by or on
behalf of the director to repay the amount if it shall be ultimately determined
that the
II-1
<PAGE> 16
standard of conduct has not been met. This undertaking shall be an unlimited
general obligation of the director but need not be secured and may be accepted
without reference to financial ability to make the repayment.
The indemnification and advancement of expenses provided or authorized by
Section 2-418 are not exclusive of any other rights to which a director may be
entitled under the charter, by-laws, a resolution of stockholders or directors,
an agreement or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
Pursuant to Section 2-418 of the MGCL, a corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or who, while serving in such capacity, is or was at
the request of the corporation serving as a director, officer, partner, trustee,
employee or agent of another corporation or legal entity or of an employee
benefit plan, against liability asserted against and incurred by such person in
any such capacity or arising out of such person's position, whether or not the
corporation would have the power to indemnify against liability under Section
2-418. A corporation may provide similar protection, including a trust fund,
letter of credit or surety bond, which is not inconsistent with Section 2-418. A
subsidiary or an affiliate of the corporation may provide the insurance or
similar protection.
Subject to certain exclusions, the directors and officers of the Company and its
affiliates are insured against certain liabilities for actions taken in such
capacities, including liabilities under the Securities Act of 1933, as amended
(the "Securities Act"). The Company is insured, subject to certain retentions
and exceptions, to the extent it shall have indemnified the directors and
officers for such loss.
In addition, the Company and certain other persons may be entitled under
agreements entered into with agents or underwriters to indemnification by such
agents or underwriters against certain liabilities, including liabilities under
the Securities Act, or to contribution with respect to payments which the
Company or such persons may be required to make in respect thereof.
ITEM 16. LIST OF EXHIBITS.
<TABLE>
<S> <C>
1. Form of proposed Underwriting Agreement.
4a. Charter of the Company, incorporated herein by reference to Exhibit 3 to the Annual
Report on Form 10-K of the Company for the fiscal year ended June 30, 1990.
4b. By-laws of the Company, incorporated herein by reference to Exhibit 3 to the Annual
Report on Form 10-K of the Company for the fiscal year ended June 30, 1990.
4c. Specimen certificate for Common Stock, incorporated herein by reference to Exhibit 4 to
Amendment No. 1 to the Registration Statement on Form S-1 of the Company bearing
Registration No. 2-69969.
4d. Stock Unit Purchase Agreement dated as of October 30, 1986 between the Company and
Westinghouse.*
4e. Letter Agreement dated May 2, 1995 between the Company and Westinghouse.
5. Opinion of Ballard Spahr Andrews & Ingersoll.*
15a. Letter on Unaudited Interim Financial Information with respect to the report dated
October 28, 1994.**
15b. Letter on Unaudited Interim Financial Information with respect to the report dated
February 8, 1995.*
23a. Consent of Price Waterhouse LLP, independent accountants.
23b. Consent of Ballard Spahr Andrews & Ingersoll (contained in their opinion filed as
Exhibit 5 to this Registration Statement).*
24. Powers of Attorney.*
</TABLE>
- ---------
* Previously filed.
** Previously filed as Exhibit 15 to Amendment No. 1 to this Registration
Statement.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a) (3) of the Securities Act; (ii) to reflect
in the
II-2
<PAGE> 17
prospectus any facts or events arising after the effective date of this
Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement; (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material change to such
information in this Registration Statement; provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE> 18
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE COMPANY
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT TO THE
REGISTRATION STATEMENT (REGISTRATION NO. 33-88768) TO BE SIGNED ON ITS BEHALF BY
THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN BELTSVILLE, MARYLAND, ON THIS 2ND
DAY OF MAY, 1995.
MICROS Systems, Inc.
By /s/ RONALD J. KOLSON
--------------------------------
Ronald J. Kolson
Executive Vice President and
Chief Operating Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT TO
THE REGISTRATION STATEMENT (REGISTRATION NO. 33-88768) HAS BEEN SIGNED BY THE
FOLLOWING PERSONS IN THE CAPACITIES INDICATED ON THIS 2ND DAY OF MAY, 1995.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
LOUIS M. BROWN, JR.* Chairman of the Board and Director
- -------------------------------------------------
Louis M. Brown, Jr.
A.L. GIANNOPOULOS* President and Chief Executive Officer
- ------------------------------------------------- and Director (Principal executive officer)
A.L. Giannopoulos
/s/ GARY C. KAUFMAN Vice President, Finance and
- ------------------------------------------------- Administration/Chief Financial Officer
Gary C. Kaufman (Principal financial officer)
/s/ ROBERTA J. WATSON Vice President and Controller
- ------------------------------------------------- (Principal accounting officer)
Roberta J. Watson
DANIEL COHEN* Director
- -------------------------------------------------
Daniel Cohen
CARROLL H. JOHNSON* Director
- -------------------------------------------------
Carroll H. Johnson
ALAN M. VOORHEES* Director
- -------------------------------------------------
Alan M. Voorhees
EDWARD T. WILSON* Director
- -------------------------------------------------
Edward T. Wilson
*By /s/ GARY C. KAUFMAN
------------------------------------------
Gary C. Kaufman
(Attorney-in-Fact)
</TABLE>
II-4
<PAGE> 19
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER PAGE
------ -----------
<S> <C> <C>
1. Form of proposed Underwriting Agreement.
4a. Charter of the Company, incorporated herein by reference to Exhibit 3 to the
Annual Report on Form 10-K of the Company for the fiscal year ended June 30,
1990.
4b. By-laws of the Company, incorporated herein by reference to Exhibit 3 to the
Annual Report on Form 10-K of the Company for the fiscal year ended June 30,
1990.
4c. Specimen certificate for Common Stock, incorporated herein by reference to
Exhibit 4 to Amendment No. 1 to the Registration Statement on Form S-1 of the
Company bearing Registration No. 2-69969.
4d. Stock Unit Purchase Agreement dated as of October 30, 1986 between the Company
and Westinghouse.*
4e. Letter Agreement dated May 2, 1995 between the Company and Westinghouse.
5. Opinion of Ballard Spahr Andrews & Ingersoll.*
15a. Letter on Unaudited Interim Financial Information with respect to the report
dated October 28, 1994.**
15b. Letter on Unaudited Interim Financial Information with respect to the report
dated February 8, 1995.*
23a. Consent of Price Waterhouse LLP, independent accountants.
23b. Consent of Ballard Spahr Andrews & Ingersoll (contained in their opinion filed
as Exhibit 5 to this Registration Statement).*
24. Powers of Attorney.*
</TABLE>
- ---------
* Previously filed.
** Previously filed as Exhibit 15 to Amendment No. 1 to this Registration
Statement.
<PAGE> 1
UNDERWRITING AGREEMENT
MICROS Systems, Inc.
Common Stock
(Par Value $.025 Per Share)
Dated the date set forth on
the signature page hereto
To the Underwriter or Underwriters
listed in Schedule I hereto
Ladies and Gentlemen:
Westinghouse Electric Corporation, a Pennsylvania corporation
("Westinghouse"), or Westinghouse Holdings Corporation, a Delaware corporation
and a wholly-owned subsidiary of Westinghouse ("Transferee") (Westinghouse or,
if the Transferee has executed the signature page hereto, the Transferee being
hereinafter referred to as the "Selling Stockholder"), proposes to sell to the
underwriter or underwriters listed in Schedule I hereto (the "Underwriters"),
for whom the representative or representatives designated on Schedule I hereto,
if any, are acting as representatives (in such capacity, the "Representatives"),
and the Underwriters propose to purchase from the Selling Stockholder, the
number of shares (the "Underwritten Securities") of common stock, par value
$.025 per share (the "Common Stock"), of MICROS Systems, Inc., a Maryland
corporation (the "Company"), set forth in Schedule I hereto as the Total Number
of Underwritten Securities. In addition, if a number of shares of Common Stock
is set forth on Schedule I hereto as the Total Number of Option Securities,
then, for the sole purpose of covering over-allotments in connection with the
sale of the Underwritten Securities, the Selling Stockholder proposes to sell to
the Underwriters, at the option of the Underwriters, up to such number of shares
of Common Stock (the "Option Securities"). The Underwritten Securities and any
Option Securities purchased by the Underwriters are herein referred to as the
"Securities." If the Securities have been transferred to Transferee prior to the
execution of this Agreement, then Transferee shall execute this Agreement in
addition
<PAGE> 2
-2-
to Westinghouse. If no Representatives are designated as such on Schedule I
hereto, then the term "Representatives" as used herein shall mean the
Underwriters.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission"), in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement on Form S-3 (File No. 33-88768), including a prospectus, relating to
the Securities, which has become effective. The registration statement as
amended at the time when it became effective, or, if post-effective amendments
are filed with respect thereto, as amended by such post-effective amendments at
the time of their effectiveness, is hereinafter referred to as the "Registration
Statement"; the prospectus in the form in which it appears in the Registration
Statement is hereinafter referred to as the "Basic Prospectus"; the supplement
thereto prepared by the Company relating to the Securities and the plan of
distribution thereof, to be filed pursuant to Rule 424(b) under the Securities
Act, is hereinafter referred to as the "Prospectus Supplement"; and the Basic
Prospectus, as supplemented by the Prospectus Supplement, in the form first used
to confirm sales of Securities is hereinafter referred to as the "Prospectus."
The term "preliminary prospectus" means a preliminary prospectus supplement
specifically relating to the Securities, together with the Basic Prospectus. Any
reference in this Agreement to the Registration Statement, the Basic Prospectus,
any preliminary prospectus, the Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective
date of the Registration Statement, or the date of the Basic Prospectus, such
preliminary prospectus or the Prospectus Supplement, as the case may be, and any
reference to "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any preliminary prospectus, the
Prospectus Supplement or the Prospectus shall be deemed to refer to and include
any documents filed after such date under the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") that are deemed to be incorporated by
reference therein.
1. Agreements to Sell and Purchase. The Selling Stockholder
hereby agrees to sell the Underwritten Securities to the several Underwriters as
hereinafter provided, and each
<PAGE> 3
-3-
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Selling Stockholder the respective number of
shares of Common Stock constituting Underwritten Securities set forth opposite
such Underwriter's name in Schedule I hereto (or such number of Underwritten
Securities increased as set forth in Section 13 hereof, subject to such
adjustments to eliminate any fractional interests as the Representatives in
their sole discretion shall make) at the price per share of Common Stock set
forth on Schedule I hereto (the "Purchase Price").
In addition, if a Total Number of Option Securities is set forth on
Schedule I hereto, the Selling Stockholder agrees to sell the Option Securities
to the several Underwriters as hereinafter provided, and the Underwriters,
upon the basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, shall have the option to purchase,
severally and not jointly, from the Selling Stockholder up to such number of
shares of Common Stock at the Purchase Price, for the sole purpose of covering
over-allotments (if any) in connection with the sale of the Underwritten
Securities by the several Underwriters.
If any Option Securities are to be purchased, the number of Option
Securities to be purchased by each Underwriter shall be the number of Option
Securities which bears the same ratio to the aggregate number of Option
Securities being purchased as the number of Underwritten Securities set forth
opposite the name of such Underwriter in Schedule I hereto bears to the
aggregate number of Underwritten Securities, subject, however, to such
adjustments to eliminate any fractional interests as the Representatives in
their sole discretion shall make.
The Underwriters may exercise the option to purchase the Option
Securities at any time (but not more than once) on or before the last day of the
period indicated on Schedule I hereto as the period for exercise of such option,
by written notice from the Representatives to the Company and the Selling
Stockholder. Such notice shall set forth the aggregate number of Option
Securities as to which the option is being exercised and the date and time when
such Option Securities are to be delivered and paid for, which may be the same
date and time as the Closing Date (as hereinafter defined) but shall not be
earlier than the Closing Date or later than the tenth full Business Day (as
hereinafter defined) after the date of such notice (unless such date and time
are postponed in accordance with the
<PAGE> 4
-4-
provisions of Section 13 hereof). Any such notice shall be given at least two
Business Days prior to the date and time of delivery specified therein.
2. Terms of Public Offering. Each of the Company, Westinghouse
and, if Transferee is a party hereto, Transferee understands that the
Underwriters intend (i) to make a public offering of the Securities as soon as
the Representatives deem advisable after this Agreement has become effective and
the Prospectus Supplement has been filed and (ii) initially to offer the
Securities upon the terms set forth in the Prospectus.
3. Delivery of the Securities and Payment Therefor. Payment for
the Securities shall be made to the Selling Stockholder by certified or official
bank check or checks payable in New York Clearing House or other next-day funds
at the offices of Cahill Gordon & Reindel, 80 Pine Street, New York, New York at
10:00 A.M., New York City time, (i) in the case of the Underwritten Securities,
on the date set forth on Schedule I hereto as the Closing Date, or at such other
time on the same or such other date, not later than the fifth Business Day
thereafter, as the Underwriters, the Selling Stockholder and the Company may
agree upon in writing, or (ii) in the case of the Option Securities, on the date
and time specified by the Representatives in the written notice of the
Underwriters' election to purchase such Option Securities. The time and date of
such payment for the Underwritten Securities are referred to herein as the
"Closing Date," and the time and date of such payment for the Option Securities,
if other than the Closing Date, are herein referred to as the "Additional
Closing Date." As used herein, the term "Business Day" means any day other than
a day on which banks are permitted or required to be closed in New York City.
Payment for the Securities to be purchased on the Closing Date or
the Additional Closing Date, as the case may be, shall be made against delivery
to the Underwriters of the certificates for the Securities to be purchased on
such date, in the case of certificates representing the Securities currently
registered in the name of Westinghouse or Transferee, endorsed in blank or with
blank stock powers attached, and, in the case of the replacement certificates
referred to below, registered in such names and in such denominations as the
Underwriters shall request in writing not later than two full Business Days
prior to the Closing Date or the Additional Closing Date, as the case may be.
The certificates for the
<PAGE> 5
-5-
Securities will be made available by the Selling Stockholder for inspection and
packaging by the Underwriters in New York, New York not later than 1:00 P.M.,
New York City time, on the Business Day prior to the Closing Date or the
Additional Closing Date, as the case may be. For purposes of expediting the
foregoing matters, the Company agrees to make available certificates
representing shares of Common Stock in replacement of the certificate(s)
representing the Securities currently registered in the name of Westinghouse or
Transferee to be delivered by or on behalf of the Selling Stockholder on the
Closing Date and the Additional Closing Date, as the case may be.
The Selling Stockholder will pay all applicable transfer taxes, if
any, involved in the transfer to the Underwriters of the Securities.
4. Representations and Warranties of the Company. The Company
hereby represents and warrants to each of the Underwriters, to Westinghouse and,
if Transferee is a party hereto, to Transferee that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus filed as part of the Registration Statement, as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424
under the Securities Act, complied when so filed in all material respects
with the Securities Act;
(b) the Registration Statement has become effective under the
Securities Act; no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company, threatened by the
Commission; the Registration Statement and the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto to the Underwriters) comply, or will comply, as the
case may be, in all material respects with the Securities Act; the
Registration Statement, as of the date of the original filing thereof and
as of the applicable effective date as to the Registration Statement and
any amendment thereto, did not and will not contain 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;
and the Prospectus, as of the date of the Prospectus Supplement, as of the
date of any
<PAGE> 6
-6-
amendment or further supplement thereto and as amended or supplemented at
the Closing Date and the Additional Closing Date, if applicable, did not
and will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that the foregoing representations and
warranties shall not apply to statements or omissions in the Registration
Statement or the Prospectus made in reliance upon and in conformity with
(i) information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly for use
therein or (ii) information relating to Westinghouse and, if Transferee is
a party hereto, Transferee furnished to the Company in writing by
Westinghouse and, if Transferee is a party hereto, Transferee expressly
for use therein. For purposes of this paragraph (b), the only written
information furnished by Westinghouse and, if Transferee is a party
hereto, Transferee to the Company expressly for use in the Registration
Statement and the Basic Prospectus is the information in the first
sentence of the second paragraph under the caption "Management
Compensation and Changes" and the first paragraph and the last sentence of
the second paragraph under the caption "Principal and Selling Stockholder"
in the Basic Prospectus (it being understood and agreed that the reference
herein to the last sentence of the second paragraph should not be deemed
to be an indication of the ability of Westinghouse to establish
new service arrangements or its ability to minimize any incremental costs
thereof);
(c) the Company and the offering of the Securities contemplated
hereby meet all conditions and requirements for registration on a Form S-3
registration statement under the Securities Act;
(d) the documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act; none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents are filed
by
<PAGE> 7
-7-
the Company with the Commission, will conform in all material respects to
the requirements of the Exchange Act and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(e) Price Waterhouse LLP, who are reporting upon the audited
consolidated financial statements of the Company and its subsidiaries and
the related schedules included or incorporated by reference in the
Registration Statement, are independent public accountants as required by
the Securities Act;
(f) the financial statements and related notes thereto included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Company and its
subsidiaries taken as a whole as of the dates indicated and the
consolidated results of their operations and changes in their consolidated
shareholders' equity and cash flows for the periods specified; the
financial statement schedules included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the information
required to be included therein; the financial statements of the Company
(including the related notes and schedules) included or incorporated by
reference in the Registration Statement and the Prospectus have been
prepared in accordance with the applicable accounting requirements of
Regulation S-X under the Securities Act and the Exchange Act ("Regulation
S-X") and with generally accepted accounting principles in the United
States of America ("GAAP") applied on a consistent basis throughout the
periods included (subject in the case of interim statements to normal year
end adjustments), except as stated therein or in the reports related
thereto;
(g) the statistical and market-related data included or
incorporated by reference in the Registration Statement and the Prospectus
are based on or derived from sources which are believed by the Company to
be reliable and accurate;
(h) there are no contracts or other documents that are required to
be described or referred to in the
<PAGE> 8
-8-
Registration Statement or the Prospectus, or to be filed as exhibits to
the Registration Statement, that are not described, referred to or filed
as required;
(i) since the date of the latest consolidated financial statements
included or incorporated by reference in the Registration Statement and
the Prospectus, except as disclosed or contemplated therein, there has not
been (i) any change in the Company's issued capital stock or options
except pursuant to the terms of the instruments governing the same or
pursuant to the exercise of such options, or (ii) any material adverse
change in the general affairs, business, prospects, management, operations
or condition, financial or otherwise, of the Company and its subsidiaries
(the "Subsidiaries," the names of which are listed on Annex A hereto)
taken as a whole (a "Material Adverse Change") or any development
involving an event or state of facts which could reasonably be expected to
result in a Material Adverse Change (a "Prospective Material Adverse
Change");
(j) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as disclosed or
contemplated therein, (i) there have been no transactions entered into by
the Company or any of the Subsidiaries, whether or not in the ordinary
course of business, which are material to the Company and the Subsidiaries
taken as a whole, and (ii) there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its capital
stock;
(k) each of the Company and the Subsidiaries has been duly
organized under the laws of its jurisdiction of incorporation; and each of
the Company and the Subsidiaries is a validly existing corporation in good
standing under the laws of its jurisdiction of incorporation, has full
corporate power and authority to own its properties and conduct its
business and is duly qualified to do business as a foreign corporation and
is in good standing in all other jurisdictions where the ownership of its
property or the conduct of its business requires such qualification,
except where the failure so to qualify or be in good standing would not,
individually or in the aggregate, have a material adverse effect on the
general affairs, business, prospects, management, operations or condition,
<PAGE> 9
-9-
financial or otherwise, of the Company and the Subsidiaries taken as a
whole (a "Material Adverse Effect");
(l) all of the issued and outstanding shares of Common Stock
(including the Securities) have been duly authorized by the Company, are
validly issued and are fully paid and nonassessable and are not subject to
any preemptive or other similar rights other than those contained in the
Company's charter as amended and in effect on the date hereof (the
"Charter"); the authorized capital stock of the Company consists solely of
the Common Stock, which Common Stock conforms as to legal matters to the
description thereof contained in the Registration Statement and the
Prospectus;
(m) this Agreement has been duly authorized, executed and
delivered by the Company;
(n) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, and
the consummation by the Company of the transactions contemplated herein,
(i) have been duly authorized by all necessary corporate action on the
part of the Company, (ii) do not and will not result in any violation of
the Charter or the Company's by-laws as amended and in effect on the date
hereof (the "By-laws") and (iii) do not and will not conflict with, or
result in a breach or violation of, any of the terms or provisions of, or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or give rise to any right to
accelerate the maturity or require the prepayment of any indebtedness or
any right of termination under, or result in the creation or imposition of
any lien, charge or encumbrance upon any material property or assets of
the Company or any Subsidiary under, (A) any material indenture, mortgage,
loan agreement, note, lease, partnership agreement or other agreement or
instrument to which the Company or any Subsidiary is a party or by which
any of them may be bound or to which any of their properties or assets may
be subject, (B) any existing applicable law, rule or regulation (subject
to obtaining such approvals as may be required under the securities or
Blue Sky laws of the various states and other jurisdictions of the United
States of America) or (C) any judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company or
<PAGE> 10
-10-
any Subsidiary or any of their respective properties or assets;
(o) no authorization, approval, consent or license of, or filing
with, any government, governmental instrumentality or court, domestic or
foreign (other than as have been made and obtained and are in full force
and effect under the Securities Act or as may be required under the
securities or Blue Sky laws of the various states and other jurisdictions
of the United States of America), is required for the performance by the
Company of its obligations under this Agreement and the provisions of
Section 3-602 of the Maryland General Corporation Law are not
currently applicable to the Company;
(p) (i) the Company is not in violation of the Charter or the
By-laws nor is any Subsidiary in violation of its charter or by-laws or
other organizational documents and (ii) neither the Company nor any
Subsidiary is or with notice or lapse of time or both would be in breach
or violation of, or in default under, any obligation, agreement, covenant
or condition contained in any indenture, mortgage, loan agreement, note,
lease, partnership agreement or other agreement or instrument to which it
is a party or by which it may be bound or to which any of its properties
or assets may be subject or affected or of any permit, order, decree,
judgment, statute, rule or regulation applicable to the Company or any
Subsidiary, except for such breaches, violations or defaults that,
individually or in the aggregate, would not have a Material Adverse
Effect;
(q) except as described in the Registration Statement and the
Prospectus, there is no investigation, action, suit or proceeding before
or by any government, governmental instrumentality or court, domestic or
foreign, now pending or, to the knowledge of the Company, threatened
against or affecting the Company or any Subsidiary that (i) if determined
adversely to the Company or such Subsidiary, could individually or in the
aggregate reasonably be expected to have a Material Adverse Effect or a
material adverse effect on the consummation of the transactions
contemplated in this Agreement or (ii) is required to be described in the
Registration Statement or the Prospectus and is not so described;
(r) except as set forth on Annex B hereto, the Company owns,
beneficially and of record, free and clear of any mortgage, pledge,
security interest, lien, claim or
<PAGE> 11
-11-
other encumbrance or restriction on transferability or voting, directly or
indirectly, the percentage of the outstanding equity securities of each of
the Subsidiaries as listed on Annex A hereto, which constitute all of the
subsidiaries of the Company; the Subsidiaries not marked with an asterisk
on Annex A hereto (other than Fidelio Software Corporation ("Fidelio
U.S.") and MSI Delaware, Inc. ("MSI")), when considered in the aggregate a
single subsidiary, do not constitute a "significant subsidiary" within the
meaning of Regulation S-X; all of the outstanding capital stock of each
Subsidiary owned by the Company has been duly authorized and validly
issued and is fully paid and nonassessable; and there are no outstanding
(i) securities or obligations convertible into or exchangeable for any
shares of capital stock of the Company or any Subsidiary, (ii) rights,
warrants or options to acquire or purchase any shares of capital stock of
the Company or any Subsidiary (except for options to purchase Common Stock
outstanding under the Company's 1991 Stock Option Plan and 1981 Stock
Option Plan as disclosed in its most recent annual proxy statement filed
pursuant to Regulation 14A under the Exchange Act (the "Proxy Statement")
or in the Registration Statement and the Prospectus) or any such
convertible or exchangeable securities or obligations or (iii) obligations
or understandings of the Company or any Subsidiary to issue or sell any
shares of capital stock of the Company or any Subsidiary, any such
convertible or exchangeable securities or obligations, or any such
warrants, rights or options (except as set forth on Annex B hereto);
(s) each of the Company and the Subsidiaries has good and
marketable title to all properties and assets described in the
Registration Statement and the Prospectus as owned by it, free and clear
of all liens, charges, encumbrances or restrictions, except (i) as
described or reflected in the Registration Statement and the Prospectus or
(ii) for such liens, charges, encumbrances or restrictions which,
individually or in the aggregate, would not be material to the Company and
the Subsidiaries taken as a whole; all of the leases and subleases
material to the business of the Company and the Subsidiaries are in full
force and effect, with such exceptions as, individually or in the
aggregate, would not be material to the Company and the Subsidiaries taken
as a whole;
<PAGE> 12
-12-
(t) each of the Company and the Subsidiaries owns, possesses or
has obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations and
filings with, all federal, state, local and other governmental authorities
(including foreign regulatory agencies), all self-regulatory organizations
and all courts and other tribunals, domestic or foreign, necessary to own
or lease, as the case may be, and to operate its properties and to carry
on its business as conducted as of the date hereof, except, in each case,
where the failure to obtain licenses, permits, certificates, consents,
orders, approvals and other authorizations, or to make all declarations
and filings, would not have a Material Adverse Effect, and neither the
Company nor any Subsidiary has received any actual notice of any
proceeding relating to revocation or modification of any such license,
permit, certificate, consent, order, approval or other authorization,
except as described in the Registration Statement and the Prospectus and
except, in each case, where such revocation or modification would not have
a Material Adverse Effect; and each of the Company and the Subsidiaries is
in compliance with all laws and regulations relating to the conduct of its
business as conducted as of the date hereof, except where noncompliance
with such laws or regulations would not have a Material Adverse Effect;
(u) each of the Company and the Subsidiaries owns, possesses or
has the right to use the trademarks, service marks, trade names,
copyrights and know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures) (collectively, the "Intellectual Property") employed by it in
connection with the business conducted by it as of the date hereof, except
to the extent that the failure to own, possess or have the right to use
such Intellectual Property would not have a Material Adverse Effect, and
except as described in the Registration Statement and the Prospectus,
neither the Company nor any Subsidiary has received any actual notice of
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or patent, except where such infringement or
conflict would not have a Material Adverse Effect;
<PAGE> 13
-13-
(v) there are no labor disputes with the employees of the Company
or any of the Subsidiaries which are likely to have a Material Adverse
Effect;
(w) each of the Company and the Subsidiaries is in compliance with
all applicable existing federal, state, local and foreign laws and
regulations relating to protection of human health or the environment or
imposing liability or standards of conduct concerning any Hazardous
Material (as hereinafter defined) (collectively, the "Environmental
Laws"), except, in each case, where noncompliance, individually or in the
aggregate, would not have a Material Adverse Effect. The term "Hazardous
Material" means (i) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, (ii) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act, as amended, and (iii) any pollutant or
contaminant or hazardous, dangerous or toxic chemical, material, waste or
substance regulated under or within the meaning of any other Environmental
Law. There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Company or
any of the Subsidiaries under any Environmental Law which, individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect;
(x) no authorization, approval or consent of any governmental
authority or agency is required (other than those which have already been
obtained) under the laws of any jurisdiction in which the Company and the
Subsidiaries conduct their respective businesses in connection with the
ownership by the Company of capital stock of any Subsidiary, any foreign
exchange controls or the repatriation of any amount from or to the Company
and the Subsidiaries, except to the extent that the failure to obtain such
authorization, approval or consent will not have a Material Adverse
Effect;
(y) the Company and the Subsidiaries have filed all federal,
state, local and material foreign tax returns which have been required to
be filed and have paid all taxes shown thereon and all assessments
received by them or any of them to the extent that such taxes have become
due and are not being contested in good faith; and there is no tax
deficiency which has been or might reasonably be expected to be asserted
or threatened against the Company
<PAGE> 14
-14-
or any Subsidiary which could have a Material Adverse Effect;
(z) the Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended, or a holding
company under the Public Utility Holding Company Act of 1935;
(aa) the Company does not know of any outstanding claims for
services, either in the nature of a finder's fee or origination fee, with
respect to any of the transactions contemplated hereby;
(bb) the Company has not taken nor will it take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Common Stock, and the Company has not distributed nor will it distribute
any prospectus or other offering material in connection with the offering
and sale of the Securities other than any preliminary prospectus filed
with the Commission, the Basic Prospectus or the Prospectus;
(cc) neither the filing of the Registration Statement or any
amendment thereto nor the offer or sale of the Securities as contemplated
by this Agreement gives rise to any rights for or relating to the
registration under the Securities Act of any securities of the Company or
any Subsidiary; and
(dd) the Company has delivered to the Underwriters written
agreements, in form and substance satisfactory to the Underwriters, of
each of its directors and principal executive officers, pursuant to which
each has agreed not to, directly or indirectly, offer, sell, contract to
sell or otherwise dispose of any shares of Common Stock or any securities
exercisable for or convertible into Common Stock for the period of days
set forth on Schedule I hereto as the Lock-up Period, without the prior
written consent of the Underwriter or Representative, as the case may be,
executing this Agreement on behalf of the Underwriters.
5. Representations and Warranties of Westinghouse and Transferee.
Westinghouse, as to itself and each of Westinghouse and Transferee, as to
Transferee if Transferee is
<PAGE> 15
-15-
a party hereto, represents and warrants to each of the Underwriters and to the
Company that:
(a) such entity has been duly organized and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation;
(b) this Agreement has been duly authorized, executed and
delivered by such entity;
(c) Westinghouse, or, if Transferee has executed this Agreement,
Transferee, is the beneficial and lawful owner of all of the Securities
and has valid and marketable title to the Securities, and upon delivery of
and payment for the Securities, the Underwriters will acquire valid and
marketable title to the Securities, free and clear of any mortgage,
pledge, security interest, lien, claim or other encumbrance or restriction
on transferability or any adverse claim within the meaning of Section
8-302 of the Uniform Commercial Code in effect in the State of New York
(the "UCC");
(d) the execution and delivery by such entity of, and the
performance by it of its obligations under, this Agreement, and the
consummation of the transactions contemplated herein, (i) have been duly
authorized by all necessary corporate action on its part, (ii) do not and
will not result in any violation of its articles of incorporation or
by-laws and (iii) do not and will not conflict with, or result in a breach
or violation of, any of the terms or provisions of, or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or give rise to any right to accelerate the
maturity or require the prepayment of any indebtedness under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
of its material property or assets under, (A) any material indenture,
mortgage, loan agreement, note, lease, partnership agreement or other
agreement or instrument to which it is a party or by which it may be bound
or to which any of its properties or assets may be subject, (B) any
existing applicable law, rule or regulation (subject to obtaining such
approvals as may be required under the securities or Blue Sky laws of the
various states and other jurisdictions of the United States of America) or
(C) any judgment, order or decree of any government, governmental
<PAGE> 16
-16-
instrumentality or court, domestic or foreign, having jurisdiction over
it or any of its properties or assets;
(e) no authorization, approval, consent or license of, or filing
with, any government, governmental instrumentality or court, domestic or
foreign (other than as have been made and obtained and are in full force
and effect under the Securities Act or as may be required under the
securities or Blue Sky laws of the various states and other jurisdictions
of the United States of America), is required for the sale and delivery of
the Securities by such entity or the performance by it of its obligations
under this Agreement;
(f) such entity has not taken nor will it take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Common Stock, and it has not distributed nor will it distribute any
prospectus or other offering material in connection with the offering and
sale of the Securities other than any preliminary prospectus filed with
the Commission, the Basic Prospectus or the Prospectus; and
(g) to the extent that any statements or omissions in the
Registration Statement or the Prospectus are made in reliance upon and in
conformity with information relating to such entity furnished to the
Company in writing by it expressly for use therein, the Registration
Statement, as of the date of filing thereof and as of the applicable
effective date as to the Registration Statement and any amendment thereto,
did not and will not contain 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, and the Prospectus, as of
its date, as of the date of any amendment or supplement thereto and as
amended or supplemented at the Closing Date and the Additional Closing
Date, if applicable, did not and will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. For purposes of
this paragraph (g), the only written information furnished by Westinghouse
and, if Transferee is a party hereto, Transferee to the Company expressly
for use in the Registration Statement and the Basic Prospectus is the
information in
<PAGE> 17
-17-
the first sentence of the second paragraph under the caption "Management
Compensation and Changes" and the first paragraph and the last sentence of
the second paragraph under the caption "Principal and Selling Stockholder"
in the Basic Prospectus (it being understood and agreed that the reference
herein to the last sentence of the second paragraph should not be deemed
to be an indication of the ability of Westinghouse to establish new
service arrangements or its ability to minimize any incremental costs
thereof).
(h) If on the date hereof Westinghouse owns, directly or
indirectly (whether through Transferee or otherwise), more than 50% of the
then outstanding shares of Common Stock as indicated on the signature page
hereto, Westinghouse, as to itself, and each of Westinghouse and
Transferee, as to Transferee if Transferee is a party hereto, also
represents and warrants to each of the Underwriters and to the Company
that, other than statements or omissions in the Registration Statement or
the Prospectus related to information furnished by Westinghouse and, if
Transferee is a party hereto, Transferee referred to in the foregoing
paragraph (g), to the best knowledge of such entity, the Registration
Statement, as of the date of the original filing thereof and as of the
applicable effective date as to the Registration Statement and any
amendment thereto, did not and will not contain 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, and
the Prospectus, as of the date of the Prospectus Supplement, as of the
date of any amendment or supplement thereto and as amended or supplemented
at the Closing Date and the Additional Closing Date, if applicable, did
not and will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the foregoing
representations and warranties shall not apply to statements or omissions
in the Registration Statement or the Prospectus made in reliance upon and
in conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Representatives
expressly for use therein.
<PAGE> 18
-18-
6. Covenants of the Company. The Company covenants and agrees
with the several Underwriters and with Westinghouse and, if Transferee is a
party hereto, with Transferee as follows:
(a) to use its best efforts to cause any amendment to the
Registration Statement to become effective at the earliest possible time,
and to file the Prospectus Supplement and, if not previously so filed, the
Basic Prospectus with the Commission within the time period specified by
Rule 424(b) under the Securities Act;
(b) to deliver to each Representative and to Cahill Gordon &
Reindel, counsel for the Underwriters, a signed copy of the Registration
Statement (as originally filed) and each amendment thereto, in each case
including exhibits and all documents incorporated by reference therein,
and to each other Underwriter a conformed copy of the Registration
Statement (as originally filed) and each amendment thereto, in each case
without exhibits but including the documents incorporated by reference
therein and, during the period mentioned in paragraph (e) below, to each
of the Underwriters and to dealers effecting transactions in the Common
Stock as many copies of the Prospectus (including all amendments and
supplements thereto) and documents incorporated by reference therein as
the Underwriters and such dealers may reasonably request;
(c) prior to the termination of the public offering of the
Securities, before filing any Prospectus Supplement or any amendment or
supplement to the Registration Statement, the Basic Prospectus or the
Prospectus, to furnish to the Representatives and the Selling Stockholder
a copy of the proposed amendment or supplement for review and not to file
any such proposed Prospectus Supplement, amendment or supplement to which
the Representatives or the Selling Stockholder reasonably objects;
(d) to advise the Representatives and the Selling Stockholder
promptly, and to confirm such advice in writing, (i) when the Prospectus
Supplement shall have been filed pursuant to Rule 424(b) under the
Securities Act and (ii) prior to the termination of the public offering of
the Securities, (A) when any amendment to the Registration Statement shall
have become effective, (B) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for any additional information, (C) of the issuance by
<PAGE> 19
-19-
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any proceeding
for that purpose and (D) of the receipt by the Company of any notification
with respect to any suspension of the qualification of the Securities for
offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and to use its reasonable best efforts to
prevent the issuance of any such stop order or notification and, if
issued, to obtain as soon as practicable the withdrawal thereof;
(e) if, during such period of time after the first date of the
public offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law to
be delivered in connection with sales by an Underwriter or dealer, any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare and furnish, at
the expense of the Selling Stockholder, to the Underwriters and to the
dealers (whose names and addresses the Representatives will furnish to the
Company) to which Securities may have been sold by the Underwriters and to
any other dealers upon written request, such amendments or supplements to
the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law;
(f) to use its reasonable best efforts to register or qualify
the Securities for offer and sale under the securities or Blue Sky laws of
such jurisdictions as the Representatives shall reasonably request and to
continue such registration or qualification in effect so long as
reasonably required for distribution of the Securities; provided that the
Company shall not be required to qualify the Securities in any
jurisdiction where, as a result of such qualification, the Company would
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
<PAGE> 20
-20-
(g) to make generally available to its security holders and to
the Underwriters as soon as practicable an earning statement covering a
period of at least twelve months beginning with the first fiscal quarter
of the Company occurring after the effective date of the Registration
Statement (as such effective date is determined pursuant to Rule 158 of
the Commission), which shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 of the Commission promulgated thereunder;
(h) for a period of four years after the date hereof, to furnish
to the Representatives copies of all reports or other communications
(financial or other) furnished to holders of the Common Stock, and copies
of any reports and financial statements furnished to or filed with the
Commission, the National Association of Securities Dealers, Inc. (the
"NASD") or any national securities exchange;
(i) for the period of days set forth on Schedule I hereto as the
Lock-up Period, without the prior written consent of the Underwriter or
Representative, as the case may be, executing this Agreement on behalf of
the Underwriters, not to, directly or indirectly, offer, sell, contract to
sell or otherwise dispose of any shares of Common Stock or any securities
convertible into or exchangeable or exercisable for shares of Common Stock
(except for shares issuable upon the exercise of currently outstanding
options under the Company's 1981 Stock Option Plan or its 1991 Stock
Option Plan and the grant of options pursuant to the Company's 1991 Stock
Option Plan); and
(j) if, in connection with the purchase of the Securities, any
Underwriter could own 10% or more of the outstanding Common Stock
(including, but not limited to, after giving effect to any percentage of
Option Securities pursuant hereto) then, for a period of 90 days
following the date hereof or, if earlier, until no Underwriter
individually owns or could so own 10% or more of the outstanding Common
Stock, not to, directly or indirectly, take any action or omit to take
any action the effect of which act or omission would be to make the
provisions of Section 3-602 of the Maryland General Corporation
Law applicable to the Company.
7. Covenants of Westinghouse and Transferee. Each of
Westinghouse and, if Transferee is a party hereto, Transferee covenants and
agrees with the several Underwriters that for the period of days set forth on
Schedule I hereto as the Lock-up Period, without the prior written consent of
the Underwriter or Representative, as the case may be, executing this
<PAGE> 21
-21-
Agreement on behalf of the Underwriters, it will not, directly or indirectly,
offer, sell, contract to sell or otherwise dispose of any shares of Common Stock
or any securities convertible into or exchangeable or exercisable for shares of
Common Stock (except for the Securities).
8. Expenses. Westinghouse agrees with each Underwriter and with
the Company to pay all costs and expenses incident to the performance of the
obligations of the Company, Westinghouse and, if Transferee is a party hereto,
Transferee hereunder, including, without limiting the generality of the
foregoing, all costs and expenses (i) incident to the preparation, transfer,
execution and delivery of the Securities referred to in Section 3, (ii) incident
to the preparation, printing and filing under the Securities Act of the
Registration Statement, the Basic Prospectus, the Prospectus Supplement, the
Prospectus and any preliminary prospectus (including in each case all exhibits,
amendments and supplements thereto), (iii) incurred in connection with the
registration or qualification of the Securities under the laws of such
jurisdictions as the Representatives may designate (including reasonable fees of
counsel for the Underwriters and their disbursements related to such
registration or qualification), (iv) related to any filing with, and review by,
the NASD and (v) in connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, all other agreements relating
to underwriting and syndication arrangements, the Blue Sky Survey and the
furnishing to the Underwriters and dealers of copies of the Registration
Statement and the Prospectus, including mailing and shipping, as herein
provided.
9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder to purchase the Underwritten
Securities are subject to the performance by each of the Company, Westinghouse
and, if Transferee is a party hereto, Transferee of its obligations hereunder
and to the following additional conditions:
(a) If any post-effective amendment to the Registration Statement
shall not have been declared effective prior to the execution hereof, such
post- effective amendment shall have become effective not later than 5:00
P.M., New York City time, on the date hereof; no stop order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the
Commission; and any requests for additional information by the
<PAGE> 22
-22-
Commission shall have been complied with to the satisfaction of the
Representatives.
(b) The representations and warranties of the Company,
Westinghouse and, if Transferee is a party hereto, Transferee contained
herein shall be true and correct on and as of the Closing Date as if made
on and as of the Closing Date, and each of the Company, Westinghouse and,
if Transferee is a party hereto, Transferee shall have complied with all
agreements and all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date.
(c) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall not have
been any Material Adverse Change or any development involving a
Prospective Material Adverse Change, other than as set forth or
contemplated in the Registration Statement and the Prospectus, the effect
of which in the judgment of the Representatives makes it impracticable to
proceed with the public offering or the delivery of the Underwritten
Securities on the terms and in the manner contemplated in the Registration
Statement and the Prospectus.
(d) The Underwriters shall have received on and as of the Closing
Date a certificate of an executive officer of the Company reasonably
satisfactory to the Representatives to the effect set forth in subsections
(a) and (b) (insofar as subsection (b) pertains to the Company) of this
Section 9 and to the further effect that since the respective dates as of
which information is given in the Registration Statement and the
Prospectus there has not occurred any Material Adverse Change or any
development involving a Prospective Material Adverse Change, other than as
set forth or contemplated in the Registration Statement and the
Prospectus.
(e) The Underwriters shall have received on and as of the Closing
Date a certificate of an executive officer of each of Westinghouse and, if
Transferee is a party hereto, Transferee reasonably satisfactory to the
Representatives to the effect set forth in subsection (b) (insofar as
subsection (b) pertains to such entity) of this Section 9.
(f) The Underwriters shall have received on the Closing Date a
signed opinion of Ballard Spahr Andrews &
<PAGE> 23
-23-
Ingersoll, Maryland counsel for the Company, dated the Closing Date,
addressed to the Underwriters and satisfactory to Cahill Gordon & Reindel,
counsel for the Underwriters, to the effect that:
(i) the Company has been duly organized and is validly
existing under the laws of the State of Maryland, is in good
standing with the State Department of Assessments and Taxation of
Maryland and has the corporate power to own, lease and operate its
properties and to conduct its business substantially as described in
the Registration Statement and the Prospectus;
(ii) each of Fidelio U.S. and MSI has been duly organized and
is validly existing and in good standing under the laws of the State
of Delaware and has the corporate power and corporate authority to
own, lease and operate its properties and to conduct its business;
(iii) all of the issued and outstanding shares of Common Stock
(including the Securities) have been duly authorized by the Company,
are validly issued and are fully paid and nonassessable and are not
subject to any preemptive or, so far as is known to such counsel,
other similar rights other than those contained in the Charter;
(iv) (1) except for the items listed on Annex B attached
hereto and so far as is known to such counsel, all of the
outstanding shares of capital stock of the Subsidiaries owned by the
Company are owned free and clear of any mortgage, pledge, security
interest, lien, claim or other encumbrance or restriction on
transfer; (2) all of the outstanding capital stock of each of
Fidelio U.S. and MSI has been duly authorized and validly issued and
is fully paid and nonassessable; and (3) so far as is known to such
counsel, there are no outstanding (a) securities or obligations
convertible into or exchangeable for any shares of capital stock of
the Company, Fidelio U.S. or MSI, (b) rights, warrants or options to
acquire or purchase from the Company, Fidelio U.S. or MSI any shares
of capital stock of the Company, Fidelio U.S. or MSI (except for
outstanding options under the Company's 1991 Stock Option Plan and
1981
<PAGE> 24
-24-
Stock Option Plan as disclosed in the Proxy Statement or in the
Registration Statement and the Prospectus) or any such convertible
or exchangeable securities or obligations or (c) obligations or
understandings of the Company, Fidelio U.S. or MSI to issue or sell
any shares of capital stock of the Company, Fidelio U.S. or MSI, any
such convertible or exchangeable securities or obligations, or any
such rights, warrants or options, except as set forth on Annex B;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
and the consummation by the Company of the transactions contemplated
herein, do not and will not (a) result in any violation of any
provision of the Charter, the By-laws or the certificate of
incorporation or by-laws of Fidelio U.S. or MSI; (b) contravene any
provision of any applicable law, rule or regulation of the State of
Maryland, except such as would not have a Material Adverse Effect;
(c) contravene any judgment, order or decree known to such counsel
by which the Company or Fidelio U.S. or MSI is bound or by which
their properties or assets may be affected; or (d) require any
authorization, approval, consent or license of, or filing with, any
government, governmental instrumentality or court of the State of
Maryland or the State of Delaware, except such as may be required
under the securities or Blue Sky laws of the State of Maryland or
the State of Delaware;
(vii) the issued and outstanding stock of the Company is as
set forth on the signature page hereto; and
(viii) the statements under the caption "Description of Capital
Stock" in the Registration Statement and the Prospectus, insofar as
such statements constitute a summary of the legal matters or
documents referred to therein, fairly present in all material
respects the information required by the Securities Act with respect
to such legal matters or documents.
<PAGE> 25
-25-
In rendering such opinions, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and each of its Subsidiaries and
certificates or other written statements of officials of jurisdictions
having custody of documents respecting the corporate existence or good
standing of the Company, Fidelio U.S. and MSI.
(g) The Underwriters shall have received on the Closing Date a
signed opinion of Chadbourne & Parke, counsel for the Company, dated the
Closing Date, addressed to the Underwriters and satisfactory to Cahill
Gordon & Reindel, counsel for the Underwriters, to the effect that:
(i) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
and the consummation by the Company of the transactions contemplated
herein, do not and will not (a) conflict with, or result in a breach
or violation of, any terms or provisions of or constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or give rise to any right to accelerate
the maturity or require the prepayment of any indebtedness or any
right of termination under, or result in the creation or imposition
of any lien, charge or encumbrance upon any properties or assets of
the Company, Fidelio U.S. and MSI pursuant to the terms of, any
document filed as an exhibit to the Registration Statement or to any
document incorporated by reference therein or any other material
agreement known to such counsel to which the Company, Fidelio U.S.
or MSI is a party or by which any of their properties or assets may
be subject; (b) contravene any provision of any applicable law, rule
or regulation (the "Applicable Laws") (subject to obtaining such
approvals as may be required under the securities or Blue Sky laws
of the various states and other jurisdictions of the United States
of America), except such as would not have a Material Adverse
Effect; (c) contravene any judgment, order or decree known to such
counsel by which the Company, Fidelio U.S. or MSI is bound or by
which their properties or assets may be affected; or (d) require any
authorization, approval, consent or license of, or filing with, any
government, governmental
<PAGE> 26
-26-
instrumentality or court, domestic or foreign, except such as have
been obtained and are in full force and effect under the Securities
Act or as may be required under the securities or Blue Sky laws of
the various states and other jurisdictions of the United States;
(ii) except as described in the Registration Statement and the
Prospectus, to such counsel's knowledge, there is no (A)
investigation, action, suit or proceeding before or by any
government, governmental instrumentality or court now pending or
threatened against or affecting the Company, Fidelio U.S. or MSI or
any of their respective properties or assets that is required by the
Securities Act to be described in the Registration Statement or the
Prospectus and is not so described or (B) contract or other document
that is required by the Securities Act to be described in or
referred to in the Registration Statement or the Prospectus, or to
be filed as an exhibit to the Registration Statement, that is not
described, referred to or filed as required;
(iii) to such counsel's knowledge, neither the filing of the
Registration Statement nor the offer or sale of the Securities to
the Underwriters in the manner contemplated in this Agreement gives
rise to any rights for or relating to the registration under the
Securities Act of any other securities of the Company, Fidelio U.S.
or MSI;
(iv) the Registration Statement and the Prospectus and all
amendments and supplements thereto (except for the financial
statements, schedules and other financial and statistical data
included or incorporated by reference in the Registration Statement
and the Prospectus, as to which counsel need not express an opinion)
comply as to form in all material respects with the requirements of
the Securities Act, and each document filed pursuant to the Exchange
Act and incorporated by reference in the Registration Statement and
the Prospectus (except for the financial statements, schedules and
other financial and statistical data included therein, as to which
counsel need not express an opinion) complied as to form in all
material respects with the requirements of the Exchange Act when
filed with the Commission;
<PAGE> 27
-27-
(v) the Company is not an "investment company" as such term
is defined in the Investment Company Act of 1940, as amended, or a
holding company under the Public Utility Holding Company Act of
1935; and
(vi) each of the Company, Fidelio U.S. and MSI is qualified
to do business and is in good standing as a foreign corporation
under the laws of each jurisdiction of the United States in which
its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or to be in
good standing, individually or in the aggregate, would not have a
Material Adverse Effect.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of the laws of the State of Maryland, to the
extent such counsel deems proper and to the extent specified in such
opinion, if at all, upon the opinion of Ballard Spahr Andrews & Ingersoll
rendered pursuant to paragraph (f) of this Section 9; and (B) as to
matters of fact, to the extent such counsel deems proper, on certificates
of responsible officers of the Company and each of its Subsidiaries and
certificates or other written statements of officials of jurisdictions
having custody of documents respecting the corporate existence or good
standing of the Company, Fidelio U.S. and MSI. The opinion of such
counsel for the Company shall state that the opinion of any such other
counsel is in form satisfactory to such counsel and, in such counsel's
opinion, the Underwriters and they are justified in relying thereon.
Such counsel shall also state that it has been advised by the
Commission that the Registration Statement became effective under the
Securities Act; that any required filings of the Prospectus pursuant to
Rule 424(b) have been made in the manner and within the time period
required by Rule 424(b); and that, to its knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted, are pending or
threatened under the Securities Act.
Such counsel shall also state that, although such counsel does not
assume any responsibility for the accuracy, completeness or fairness of
the statements contained
<PAGE> 28
-28-
in the Registration Statement or the Prospectus, no facts have come to
such counsel's attention which would lead such counsel to believe that the
Registration Statement (including the documents incorporated by reference
therein), at the time it became effective, contained any untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading
or that the Prospectus (including the documents incorporated by reference
therein), as of the date of the Prospectus Supplement and as of the
Closing Date, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading (but such counsel need not comment with
respect to the financial statements, schedules and other financial and
statistical data included or incorporated by reference in the Registration
Statement and the Prospectus).
(h) The Underwriters shall have received on the Closing Date
signed opinions (in form and substance satisfactory to Cahill Gordon &
Reindel, counsel for the Underwriters), as to such matters as the
Representatives may reasonably request involving the Subsidiaries marked
with an asterisk on Annex A hereto, of additional counsel reasonably
acceptable to Cahill Gordon & Reindel, counsel for the Underwriters,
familiar with the applicable laws.
(i) The Underwriters shall have received on the Closing Date a
signed opinion of Louis J. Briskman, Esq., General Counsel of
Westinghouse, or other counsel reasonably acceptable to the Underwriters,
dated the Closing Date, addressed to the Underwriters and satisfactory to
Cahill Gordon & Reindel, counsel for the Underwriters, to the effect that:
(i) each of Westinghouse and, if Transferee is a party
hereto, Transferee has been duly organized and is validly existing
and in good standing under the laws of its jurisdiction of
incorporation;
(ii) this Agreement has been duly authorized, executed and
delivered by each of the entities comprising the Selling
Stockholder, and each of Westinghouse and, if Transferee is a party
hereto, Transferee has the corporate power and authority to
<PAGE> 29
-29-
sell, transfer and deliver the Underwritten Securities in the manner
provided in this Agreement; and
(iii) the execution and delivery by each of Westinghouse and,
if Transferee is a party hereto, Transferee of, and the performance
by it of its obligations under, this Agreement, and the consummation
by it of the transactions contemplated herein, do not and will not
(a) result in any violation of any provision of its articles of
incorporation or by-laws; (b) conflict with, or result in a breach
or violation of, any terms or provisions of, or constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or give rise to any right to accelerate
the maturity or require the prepayment of any indebtedness under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any of its properties or assets pursuant to the
terms of, any material agreement known to such counsel to which it
is a party or by which any of its properties or assets may be
subject; (c) contravene any Applicable Laws (subject to obtaining
such approvals as may be required under the securities or Blue Sky
laws of the various states and other jurisdictions of the United
States of America); (d) contravene any judgment, order or decree
known to such counsel by which such entity is bound or by which its
properties or assets may be affected; or (e) require any
authorization, approval, consent or license of, or filing with, any
government, governmental instrumentality or court, domestic or
foreign, except such as have been obtained and are in full force and
effect under the Securities Act or as may be required under the
securities or Blue Sky laws of the various states and other
jurisdictions of the United States.
(j) The Underwriters shall have received on the Closing Date a
signed opinion of Cravath, Swaine & Moore, counsel for the Selling
Stockholder, dated the Closing Date, addressed to the Underwriters and
satisfactory to Cahill Gordon & Reindel, counsel for the Underwriters, to
the effect that upon delivery of the certificates for the Underwritten
Securities to the Underwriters endorsed to them or in blank and payment
therefor by the Underwriters in accordance with the terms of this
Agreement, each Underwriter will acquire beneficial ownership of the
<PAGE> 30
-30-
Underwritten Securities being purchased by it free of any adverse claim
within the meaning of Section 8-302 of the UCC, assuming that such
Underwriter is acting in good faith and has no notice of any adverse
claim. Such counsel may state that, although each Underwriter will
acquire beneficial ownership of the Underwritten Securities being
purchased by it as described in the immediately preceding sentence, such
Underwriter will not acquire record title to such Underwritten Securities
until such Underwritten Securities are registered in the share records of
the Company in the name of such Underwriter (or a nominee thereof).
(k) At the time this Agreement is executed and also on the Closing
Date, Price Waterhouse LLP shall have furnished to the Underwriters
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to the Representatives, containing statements and
information of the type customarily included in accountants' "comfort
letters" to underwriters with respect to certain financial information
relating to the Company and the Subsidiaries contained in the Registration
Statement and the Prospectus or incorporated by reference therein; such
letters shall also be addressed and delivered to the Selling Stockholder.
(l) The Underwriters shall have received on the Closing Date an
opinion of Cahill Gordon & Reindel, counsel for the Underwriters, with
respect to the Registration Statement, the Prospectus and other related
matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters.
(m) The Securities shall continue to be qualified for quotation
on the Nasdaq National Market.
(n) On or prior to the Closing Date, the Company shall have
furnished to the Representatives such further certificates and documents
as the Representatives shall reasonably request.
The several obligations of the Underwriters to purchase Option
Securities hereunder are subject to satisfaction of the conditions set forth in
paragraphs (a) through (g) and (i) through (n) above on and as of the Additional
Closing Date,
<PAGE> 31
-31-
except that the certificates called for by paragraphs (d) and (e), the
opinions called for by paragraphs (f), (g), (i), (j) and (l) and the letter
called for by paragraph (k) shall be dated the Additional Closing Date and any
reference to Underwritten Securities shall be deemed to be a reference to
Option Securities.
10. Indemnification and Contribution. The Company and, if on the
date hereof Westinghouse owns, directly or indirectly (whether through
Transferee or otherwise), more than 50% of the then outstanding shares of Common
Stock as indicated on the signature page hereto, Westinghouse agrees, jointly
and severally, to indemnify and hold harmless each Underwriter, its officers and
directors, and each person, if any, who controls such Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, the reasonable legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto to the Underwriters) or any preliminary prospectus, 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, except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use therein; provided that the foregoing
indemnity with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) from whom the person asserting any such losses, claims, damages or
liabilities purchased Securities if such untrue statement or omission or alleged
untrue statement or omission made in such preliminary prospectus is eliminated
or remedied in the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto to the Underwriters) and,
if required by law to be furnished, a copy of the Prospectus (as so amended or
supplemented) shall not have been furnished to such person at or prior to the
written confirmation of the sale of such Securities to such person.
<PAGE> 32
-32-
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement, each person who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act and Westinghouse to the
same extent as the foregoing indemnity from the Company and Westinghouse to each
Underwriter, but only with reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement, the Prospectus,
any amendment or supplement thereto, or any preliminary prospectus. For
purposes of this Section 10, the only written information furnished by the
Underwriters to the Company expressly for use in the Registration Statement and
the Prospectus is the information referred to on Schedule I hereto under the
heading "Information Provided by the Underwriters."
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify in writing the person or persons against whom such indemnity may be
sought (each an "Indemnifying Person"), and such Indemnifying Person, upon
request of the Indemnified Person, shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses incurred by such counsel related to such
proceeding. In any such proceeding, any Indemnified Person shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) such Indemnifying Person and
such Indemnified Person shall have mutually agreed to the contrary, (ii) such
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to such Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include both an
Indemnifying Person and an Indemnified Person and representation of each such
party by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that an Indemnifying Person
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (a) the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Underwriters, their officers and
directors and all persons, if any, who control any Underwriter
<PAGE> 33
-33-
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, (b) the reasonable fees and expenses of more than one separate
firm (in addition to any local counsel) for the Company, its directors, its
officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either such Section and (c) the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for the Selling Stockholder, and that all such fees and expenses
shall be reimbursed as they are incurred. Any such separate firm for the
Underwriters and such control persons of the Underwriters shall be designated in
writing by the Underwriter or Representative, as the case may be, executing this
Agreement on behalf of the Underwriters; any such separate firm for the Company,
its directors, its officers who sign the Registration Statement and such control
persons of the Company (other than Westinghouse and, if Transferee is a party
hereto, Transferee) shall be designated in writing by the Company; and any such
separate firm for Westinghouse shall be designated in writing by Westinghouse.
No Indemnifying Person shall be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, such Indemnifying Person agrees to
indemnify each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for reasonable fees and expenses incurred by
counsel as contemplated by the third sentence of this paragraph, such
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement; provided, however, that such Indemnified Person shall not have the
right to enter into such settlement if there is a good faith dispute between
such Indemnified Person and such Indemnifying Person regarding such Indemnifying
Person's obligation to reimburse such Indemnified Person for such fees and
expenses of counsel. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such
<PAGE> 34
-34-
Indemnified Person from all liability on claims that are the subject matter of
such proceeding.
If the indemnification provided for in the first, second and third
paragraphs of this Section 10 is unavailable to an Indemnified Person in respect
of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and Westinghouse in the aggregate on the one
hand and the Underwriters on the other hand 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 Westinghouse in the aggregate on the one hand and the
Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and Westinghouse in the aggregate on the one hand and the Underwriters
on the other hand shall be deemed to be in the same respective proportions as
the net proceeds from the offering (before deducting expenses) received by the
Selling Stockholder and the total underwriting discounts received by the
Underwriters, in each case as set forth on the cover of the Prospectus, bear to
the aggregate public offering price of the Securities. The relative fault of
the Company and Westinghouse in the aggregate on the one hand and the
Underwriters on the other hand 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, Westinghouse or Transferee or by the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
Each of the Company, Westinghouse and the Underwriters agrees that
it would not be just and equitable if contribution pursuant to this Section 10
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or
<PAGE> 35
-35-
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses incurred by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 10, in no event shall an Underwriter 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 that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 10 are several in proportion to the respective number of shares of
Common Stock constituting Underwritten Securities set forth opposite their names
in Schedule I hereto, and not joint.
The indemnity and contribution agreements contained in this Section
10 are in addition to any liability which any Indemnifying Person may otherwise
have to any other Indemnifying Person or any Indemnified Person, including
pursuant to the Stock Unit Purchase Agreement between the Company and
Westinghouse, dated as of October 30, 1986, as amended by that certain letter
agreement dated May 2, 1995 between the Company and Westinghouse (which
agreement, as so amended, shall not be deemed or considered amended or
superseded by this Section 10). The Company and Westinghouse agree that any
indemnity or contribution payments made by Westinghouse to any Indemnified
Person pursuant to this Section 10 will be treated by the Company and
Westinghouse as liabilities of Westinghouse that are subject to the Company's
indemnification contained in Section 7.04 of such Stock Unit Purchase Agreement
(subject to the limitation contained in the proviso to the first paragraph of
clause (d) thereof), and any indemnity or contribution payments made by the
Company to any Indemnified Person pursuant to this Section 10 will be treated by
Westinghouse and the Company as liabilities of the Company that are subject to
Westinghouse's indemnification contained in Section 7.04 of such Stock Unit
Purchase Agreement (subject to the limitation contained therein with respect to
written information furnished to the Company by Westinghouse and, if Transferee
is a party hereto, Transferee).
<PAGE> 36
-36-
The indemnity and contribution agreements contained in this Section
10 and the representations and warranties of the Company, Westinghouse and, if
Transferee is a party hereto, Transferee as set forth in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf of the
Company, Westinghouse or Transferee or the officers or directors or any other
person controlling the Company, Westinghouse or Transferee and (iii) acceptance
of and payment for any of the Securities.
11. Termination of This Agreement. Notwithstanding anything
herein contained, this Agreement (or the obligations of the several Underwriters
with respect to the Option Securities) may be terminated in the absolute
discretion of the Representatives, by notice given to the Company and
Westinghouse, if after the execution and delivery of this Agreement and prior to
the Closing Date (or, in the case of the Option Securities, prior to the
Additional Closing Date) (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, either the New York Stock
Exchange or the Nasdaq National Market, (ii) trading of any securities of the
Company shall have been suspended or materially limited on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by Federal or New York State
authorities, or (iv) there shall have occurred an outbreak of hostilities or an
escalation of hostilities or any change in financial markets or any calamity or
crisis that, in the reasonable judgment of the Representatives, is material and
adverse and which, in the reasonable judgment of the Representatives, makes it
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
12. Reimbursement upon Occurrence of Certain Events. If this
Agreement shall be terminated by the Representatives because of any failure or
refusal on the part of the Company, Westinghouse or Transferee (if it is a party
hereto) to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason any of the Company, Westinghouse or Transferee
(if it is a party hereto) shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
Westinghouse agrees to reimburse the Underwriters for all out-of-pocket
expenses (including the fees and expenses of their
<PAGE> 37
-37-
counsel) incurred by the Underwriters in connection with this Agreement or the
offering contemplated hereunder.
13. Effectiveness of This Agreement; Additional Obligations of the
Underwriters. This Agreement shall become effective upon the later of (x) the
execution and delivery hereof by the parties hereto and (y) release of
notification by the Commission of the effectiveness of the most recent post-
effective amendment to the Registration Statement filed prior to the Closing
Date.
If, on the Closing Date or the Additional Closing Date, as the case
may be, any one or more of the Underwriters shall fail or refuse to purchase the
Securities which it or they have agreed to purchase hereunder on such date, and
the aggregate number of Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the number of Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the number of Underwritten
Securities set forth opposite their respective names in Schedule I hereto bears
to the aggregate number of Underwritten Securities set forth opposite the names
of all such nondefaulting Underwriters, or in such other proportions as the
Representatives may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Securities that any
Underwriter has agreed to purchase pursuant to Section 1 be increased pursuant
to this Section 13 by an amount in excess of one-ninth of the number of shares
of Common Stock constituting Securities which such Underwriter is obligated to
purchase hereunder without the written consent of such Underwriter. If, on the
Closing Date or the Additional Closing Date, as the case may be, any Underwriter
or Underwriters shall fail or refuse to purchase Securities which it or they
have agreed to purchase hereunder on such date, and the aggregate number of
Securities with respect to which such default occurs is more than one-tenth of
the aggregate number of Securities to be purchased on such date, and
arrangements satisfactory to the Representatives and the Selling Stockholder for
the purchase of such Securities are not made within 36 hours after such default,
this Agreement (or the obligations of the several Underwriters to purchase the
Option Securities, as the case may be) shall terminate without liability on the
part of any non-defaulting Underwriter, the Company or the Selling Stockholder.
In any such case the Representatives, the Company or the Selling Stockholder
shall have
<PAGE> 38
-38-
the right to postpone the Closing Date (or, in the case of the Option
Securities, the Additional Closing Date), but in no event for longer than seven
days, in order that the required changes, if any, in the Registration Statement
and in the Prospectus or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
14. Notice. Any action by the Underwriters or the Representatives
hereunder may be taken by the Representatives jointly or by the Underwriter or
Representative, as the case may be, executing this Agreement acting alone on
behalf of the Underwriters or the Representatives, as the case may be, and any
such action taken by the Representatives jointly or by such Underwriter or
Representative alone shall be binding upon the Underwriters and the
Representatives. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
given to the Representatives at the address set forth on Schedule I hereto.
Notices to the Company shall be given to it at 12000 Baltimore Avenue,
Beltsville, Maryland 20705-1291, Attention: President (facsimile (301)
210-3334). Notices to Westinghouse or the Selling Stockholder shall be given to
it at Westinghouse Building, Gateway Center, Pittsburgh, Pennsylvania 15222,
Attention: Louis J. Briskman, Esq., General Counsel (facsimile (412) 642-5224).
15. Miscellaneous. This Agreement shall inure to the benefit
of and be binding upon the Underwriters, the Company, Westinghouse and, if
Transferee is a party hereto, Transferee and any controlling person referred to
herein and their respective successors, heirs and legal representatives. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters, the Company,
Westinghouse and, if Transferee is a party hereto, Transferee and their
respective successors, heirs and legal representatives and the controlling
persons and officers and directors referred to in Section 10 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
<PAGE> 39
-39-
16. Counterparts; Applicable Law. This Agreement may be signed in
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the conflicts of laws provisions thereof.
<PAGE> 40
If the foregoing is in accordance with your understanding, please
sign and return six counterparts hereof.
Very truly yours,
MICROS SYSTEMS, INC.
By:
----------------------------------------
Name:
Title:
WESTINGHOUSE ELECTRIC CORPORATION
By:
----------------------------------------
Name:
Title:
WESTINGHOUSE HOLDINGS CORPORATION
By:
----------------------------------------
Name:
Title:
Number of shares of Common Stock
owned by the Selling
Stockholder:
------------------
Number of shares of Common Stock
outstanding:
------------------
<PAGE> 41
Accepted: , 199
--------- -
[NAME(S) OF UNDERWRITER(S) OR REPRESENTATIVE(S)]
[For (itself) (themselves) and
as the Representative(s) of the
several Underwriters named in
Schedule I hereto.]
[By: (NAME OF LEAD MANAGING UNDERWRITER)]
By:
---------------------------------------------
Name:
Title:
<PAGE> 42
SCHEDULE I
<TABLE>
<CAPTION>
Number of Shares of
Common Stock Constituting
Underwritten Securities
Underwriter(1) To Be Purchased
- -------------- -------------------------
<S> <C>
_________
Total Number of
Underwritten Securities.................. _________
</TABLE>
Total Number of Option Securities, if any....
Purchase Price per share: $_________
Period for Exercise of Option to Purchase
Option Securities: _______ days following the date
of the Prospectus Supplement
Lock-up Period: _______ days following the date
of the Prospectus Supplement
Closing Date: ________________, 199_
Information Provided by the Underwriters:
_________________________
(1) An asterisk (*) indicates a Representative. The notice address for the
Underwriters is as follows:
<PAGE> 43
ANNEX A
SUBSIDIARIES
<TABLE>
<CAPTION>
Percentage Owned
by Immediate
Parent Entity
----------------
<S> <C>
MICROS Canada Inc. (Ontario) 100%
MICROS Foreign Sales Corporation (Barbados) 100%
MICROS of Delaware, Inc. 100%
MICROS of South Florida, Inc. (Maryland) 100%
MICROS POS Pty. Limited (Australia) 100%
*MICROS Systems (U.K.) Ltd. (United Kingdom) 100%
*MICROS Systems Hispania S.L. (Spain) 99.9%
MSI Delaware, Inc. (Delaware) 100%
*MICROS System Holding GmbH (Germany) 100%
*MICROS Systems Deutschland (Germany) 100%
*MICROS Systems Services GmbH (Germany) 100%
*Fidelio Software Corporation (Delaware) 90%
*Fidelio Software U.K. Limited (England and Wales) 80%
*MICROS System AG (Ltd.) (Switzerland) 60%
*Fidelio France S.A. (France) 51%
(direct)
12.67%
(indirect)
Marblehead Systems International, Inc. (Delaware) 50%
Merchants Information Systems, Inc. (Maryland) 49%
(direct)
24.48%
(indirect)
</TABLE>
[As of May 2, 1995 - to be updated prior to execution]
<PAGE> 44
ANNEX B
[THIS ANNEX B, FILED AS AN ATTACHMENT TO THE FORM OF PROPOSED UNDERWRITING
AGREEMENT PROVIDED AS EXHIBIT 1 IN AMENDMENT NO. 4 TO THE REGISTRATION
STATEMENT ON FORM S-3 OF MICROS SYSTEMS, INC. (REGISTRATION NO. 33-88768) (THE
"REGISTRATION STATEMENT"), IS DATED AS OF MAY 2, 1995. THIS ANNEX B IS SUBJECT
TO REVIEW, AMENDMENT AND COMPLETION UPON THE DATE ON WHICH SOME OR ALL OF THE
SECURITIES TO WHICH THE REGISTRATION STATEMENT RELATES ARE SOLD BY THE SELLING
STOCKHOLDER (AS DEFINED IN THE REGISTRATION STATEMENT).]
MICROS Canada Inc.:
1. The Articles of Incorporation require transfers of
stock of MICROS Canada Inc. to be approved by the directors of the corporation
or to be approved by the holders of at least 51% of the outstanding common
shares of MICROS Canada Inc.
2. A Management Agreement, dated February 12, 1993,
among David Quinn and others (referred to therein as the "Management Group"),
the Company and MICROS Canada Inc., provides that the Management Group would
earn shares of common stock of MICROS Canada Inc. (referred to as "Performance
Shares" therein) based upon the realization of certain goals relating to the
sales and income of MICROS Canada Inc. The Management Agreement further
provides that within 60 days following the occurrence of a Triggering Event (as
defined in the Management Agreement), the Management Group may request the
Company to redeem the Performance Shares for cash or, if the Company agrees,
for stock of the Company. An officer of MICROS Canada Inc. and an officer of
the Company have certified that the sales and income of MICROS Canada Inc. have
never been at a level which would require MICROS Canada Inc. to issue
Performance Shares pursuant to the Management Agreement, that no Performance
Shares have ever been issued by MICROS Canada Inc. and that, other than David
Quinn, there are no other parties entitled to Performance Shares pursuant to
this Management Agreement.
MICROS Foreign Sales Corporation:
1. The Articles of Incorporation provide that no shares
of MICROS Foreign Sales Corporation may be transferred without the approval of
the directors of MICROS Foreign Sales Corporation or a committee of such
directors. The Articles of Association also provide that the directors may, in
their absolute discretion and without assigning any
<PAGE> 45
reason therefor, decline to register any transfer of any share.
MICROS of Delaware, Inc.:
1. A Subscription Agreement, dated February 5, 1993,
between MICROS of Delaware, Inc. and the Company, provides that stock of MICROS
of Delaware, Inc. purchased by the Company pursuant to this Subscription
Agreement may not be offered, sold, pledged or otherwise disposed of, except
pursuant to (i) an effective registration statement under the Securities Act of
1933 (the "1933 Act") or (ii) an opinion of counsel satisfactory to MICROS of
Delaware, Inc. that such registration and qualification are not required.
MICROS of South Florida, Inc.:
1. A Management Agreement, dated April 1993, among
Thomas S. Williams and others (referred to therein as the "Management Group"),
the Company and MICROS of South Florida, Inc., provides that the Management
Group would earn shares of common stock of MICROS of South Florida, Inc.
(referred to as "Performance Shares" therein) based upon the realization of
certain goals relating to the sales and income of MICROS of South Florida, Inc.
The Management Agreement further provides that within 60 days following the
occurrence of a Triggering Event (as defined in the Management Agreement), the
Management Group may request the Company to redeem the Performance Shares for
cash or, if the Company agrees, for stock of the Company. An officer of MICROS
of South Florida, Inc. and an officer of the Company have certified that the
sales and income of MICROS of South Florida, Inc. have never been at a level
which would require MICROS of South Florida, Inc. to issue Performance Shares
pursuant to the Management Agreement, that no Performance Shares have ever been
issued by MICROS of South Florida, Inc. and that, other than Thomas S. Williams
and Read Kirkpatrick, there are no other parties entitled to Performance Shares
pursuant to this Management Agreement.
2. A Management Agreement, dated April 1993, among Read
Kirkpatrick and others (referred to therein as the "Management Group"), the
Company and MICROS of South Florida, Inc., provides that the Management Group
would earn shares of common stock of MICROS of South Florida, Inc. (referred to
as "Performance Shares" therein) based upon the realization of certain goals
relating to the sales and income of MICROS of South Florida, Inc. The
Management Agreement further provides that within 60 days following the
occurrence of a Triggering Event (as defined in the Management Agreement), the
Management Group may request the
2
<PAGE> 46
Company to redeem the Performance Shares for cash or, if the Company agrees, for
stock of the Company. An officer of MICROS of South Florida, Inc. and an
officer of the Company have certified that the sales and income of MICROS of
South Florida, Inc. have never been at a level which would require MICROS of
South Florida, Inc. to issue Performance Shares pursuant to the Management
Agreement, that no Performance Shares have ever been issued by MICROS of South
Florida, Inc. and that, other than Thomas S. Williams and Read Kirkpatrick,
there are no other parties entitled to Performance Shares pursuant to this
Management Agreement.
MICROS POS PTY. LIMITED:
1. The Articles of Association provide that the
directors of MICROS POS PTY. LIMITED may decline to register any transfer of
shares of MICROS POS PTY. LIMITED to any person of whom they do not approve and
shall not be called upon to assign any reason for such refusal.
2. The Articles of Association of MICROS POS PTY.
LIMITED provide the following:
"89. (a) The Company shall have a first and paramount
lien upon every share (whether fully paid or not) for
all moneys whether presently payable or not or
payable at a fixed time with interest and expenses
owing to the Company in respect of that share but the
Directors may at any time declare any share to be
wholly or in part exempt from the provisions of this
Article.
"(b) The Company shall have a first and paramount
lien for unpaid calls and installments upon the
specific shares in respect of which such moneys are
due and unpaid. Such lien shall extend to all
dividends from time to time declared in respect of
such shares. If the Company shall register a
transfer of any share upon which it has a claim
without first giving to the transferee a notice of
the claim that share shall be freed and discharged
from the lien.
"90. Whenever any law imposes a liability or possible
liability upon the Company to make any payment whether in
respect of dividends or in respect of the member's ownership
of shares in the Company in consequence of his death
non-payment of income tax or other tax or estate Probate death
or
3
<PAGE> 47
succession duties the Company in every such case shall be
fully indemnified by the member or his executor or
administrator from all liabilities and shall have a lien for
all moneys and liabilities due or chargeable in respect of any
such law together with interest at the rate of 10% per annum
to the same extent as for other moneys payable at a fixed time
in respect of the member's shares. The provisions of this
Article shall not prejudice any right or remedy conferred on
the Company as between the Company and every such member his
executors administrators or estate.
"91. The Company may sell in such manner as the Directors
think fit any shares on which the Company has a lien but no
sale shall be made unless some sum in respect of which the
lien exists is presently payable nor until the expiration of
14 days after a notice in writing stating and demanding
payment of such part of the amount in respect of which the
lien exists as is presently payable has been given to the
registered holder for the time being of the share or the
persons entitled thereto by reason of his death or bankruptcy.
* * *
"94. The Directors may from time to time make calls upon
the members in respect of any money unpaid on their shares
(whether on account of the nominal value of the shares or by
way of premium) and not by the conditions of allotment thereof
made payable at fixed times and each member shall pay the
amount called on his shares to the Company at the times
specified by the Directors. A call may be revoked or
postponed as the Directors may determine."
MICROS Systems (U.K.) Ltd.:
1. Section 3 of the Articles of Association of MICROS
Systems (U.K.) Ltd. states "The lien conferred by Clause 8 in [Table A in the
Schedule to the Companies (Tables A to F) Regulations 1985 as amended by the
Companies (Tables A to F) (Amendment) Regulations 1985 ("Table A")] shall
attach also to fully paid-up shares, and the Company shall also have a first
and paramount lien on all shares, whether fully paid or not, standing
registered in the name of any person indebted or under liability to the
Company, whether he shall be the sole registered holder thereof or
4
<PAGE> 48
shall be one of two or more joint holders, for all monies presently payable by
him or his estate to the Company. Clause 8 in Table A shall be modified
accordingly."
2. The Articles of Association provide that the
directors of MICROS Systems (U.K.) Ltd. may, in their absolute discretion and
without assigning any reason therefor, decline to register the transfer of a
share, whether or not such share is fully paid.
MSI Delaware, Inc.:
1. A Subscription Agreement, dated February 5, 1993,
between MSI Delaware, Inc. and the Company, provides that stock of MSI
Delaware, Inc. may not be offered, sold, pledged or otherwise disposed of,
except pursuant to (i) an effective registration statement under the Securities
Act of 1933 (the "1933 Act") or (ii) an opinion of counsel satisfactory to MSI
Delaware, Inc. that such registration and qualification are not required.
MICROS Systems Deutschland:
1. The Articles of Association require that a
quotaholder who desires to transfer his or her shares in MICROS Systems
Deutschland must obtain the written consent of the other quotaholders of MICROS
Systems Deutschland prior to such transfer. The Articles of Association
provide an exception from this consent requirement if a transfer is made (i) to
another existing quotaholder of MICROS Systems Deutschland or (ii) to a related
party of the transferring quotaholder.
MICROS Systems Services GmbH:
1. Article 6.1 of the Articles Association of MICROS
Systems Services GmbH provides that a quota in MICROS Systems Services GmbH may
not be transferred or made subject to a lien or any similar third-party
interest without the prior written consent of a majority of quotaholders who
hold greater than a 50% interest in the share capital of MICROS Systems
Services GmbH. Such consent is not required if the parties to the quota
transfer are either other quotaholders of MICROS Systems Services GmbH or
related companies, as defined in the German Stock Corporation Statute
(Aktiengesetz). Article 6.2 of the Articles of Association of MICROS Systems
Services GmbH provides that (i) a transfer of a quota in MICROS Systems
Services GmbH and (ii) an encumbrance of a lien or a similar third-party
interest upon a quota to the benefit of a non-quotaholder or an unrelated party
must be approved by a majority of votes cast at a duly
5
<PAGE> 49
convened quotaholders' meeting. Article 6.3 of the Articles of Association of
MICROS Systems Services GmbH provides for a preemption right in the case of an
increase in the number of outstanding quotas in MICROS Systems Services GmbH.
Fidelio Software U.K. Limited:
1. Section 6 of the Articles of Association states "In
regulation 8 of Table A, the words '(not being a fully paid share)' shall be
omitted. The Company shall have a first and paramount lien on all shares
standing registered in the name of any person (whether he be the sole
registered holder thereof or one of two or more joint holders) for all monies
presently payable by him or his estate to the Company."
2. The Articles of Association provide that the
directors of Fidelio Software U.K. Limited may, in their sole discretion and
without assigning any reason therefor, decline to register the transfer of any
share of Fidelio Software U.K. Limited, whether or not such share is fully
paid.
MICROS Systems AG (Ltd.):
1. A draft version of the Articles of Association
apparently provides that any transfer of shares of stock of MICROS Systems AG
(Ltd.) requires the approval of the board of directors of MICROS Systems AG
(Ltd.).
2. A Joint Venture Contract between the Company and Host
AG, Zurich requires that a shareholder of MICROS Systems AG (Ltd.) obtain the
consent of the other shareholders prior to the transfer of stock of MICROS
Systems AG (Ltd.). The draft version of the Articles of Association also
requires that any transfer of shares of MICROS Systems AG (Ltd.) must be
certified by the Board of Directors.
Fidelio France S.A.:
1. The Articles of Association of Fidelio France S.A.
provide for a right of first refusal to the non- transferring shareholders
regarding transfer of stock of Fidelio France S.A.
2. The By-laws of Fidelio France S.A. provide for a
right of first refusal to the non-transferring shareholders prior to transfer
of stock of Fidelio France S.A. The By-laws of Fidelio France S.A. also
provide that the transfer of shares of Fidelio France S.A. to a non-
6
<PAGE> 50
shareholder third party is subject to the approval of the board of directors of
Fidelio France S.A. In the event that the board of directors rejects a
proposed transfer, the shareholder shall notify the board of directors of his
intention to abandon or pursue the proposed transfer. If the transferor does
not abandon his desire to sell the said shares, the board of directors shall be
under the obligation to ensure that these shares are acquired by an authorized
transferee or by the shareholders or by Fidelio France S.A., which shall then
reduce its capital within a period of three months. If the board of directors
fails to do so within this three- month period, the board of directors shall be
deemed to have approved the transfer in accordance with the transferor's
initial request for approval.
Marblehead Systems International, Inc.:
1. A Shareholders' Agreement, dated February 22, 1994,
between Fidelio Software Corporation and Joseph A. Marko provides a right of
first refusal to non-transferring shareholders prior to a transfer of stock.
Merchants Information Systems, Inc.:
1. A Shareholders' Agreement, dated July 30, 1993,
between the Company and Merchants Systems, Inc., a Washington State
corporation, provides a right of first refusal to the non-transferring
shareholders prior to a transfer of stock of Merchants Information Systems,
Inc.
7
<PAGE> 1
MICROS Systems, Inc.
12000 Baltimore Avenue
Beltsville, Maryland 20705-1291
(301) 210-6000
May 2, 1995
Westinghouse Electric Corporation
11 Stanwix Street
2016 Westinghouse Building
Gateway Center
Pittsburgh, Pennsylvania 15222
Re: Stock Unit Purchase Agreement dated as of October
30, 1986 (the "Purchase Agreement") between MICROS
Systems, Inc. ("MICROS") and Westinghouse Electric
Corporation ("Westinghouse")
Pursuant to the Purchase Agreement, MICROS has prepared and
filed with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (Registration No. 33-88768), as amended to
date (the "Registration Statement"), relating to 4,849,123 shares of Common
Stock, par value $.025 per share (the "Common Stock"), of MICROS owned by
Westinghouse (the "Securities"). Any reference to "this Agreement" in the
Purchase Agreement shall refer to the Purchase Agreement as amended by this
letter agreement. In the event of any inconsistency between this letter
agreement and the Purchase Agreement, the provisions of this letter agreement
shall govern.
<PAGE> 2
Westinghouse has requested that MICROS further amend, and
MICROS hereby agrees to so amend and supplement, the Registration Statement to
permit Westinghouse to offer and sell the Securities on a delayed basis
pursuant to Rule 415 promulgated by the Commission under the Securities Act of
1933, as amended (the "Securities Act").
MICROS and Westinghouse hereby mutually agree to amend and
supplement the Purchase Agreement as follows:
(a) The proviso contained in Paragraph 7.05(a) of the
Purchase Agreement with respect to a shelf registration shall not apply, and
all references to a "registration" or "registration statement" in the Purchase
Agreement shall include a shelf registration provided for by this letter
agreement (a "Shelf Registration").
(b) Westinghouse may transfer any or all of the
Securities to a wholly-owned U.S. subsidiary of Westinghouse ("Transferee").
Any reference to "Westinghouse" in this letter agreement and in Paragraph 7
(other than in Paragraph 7.04(c) and the second reference to "Westinghouse" in
the second paragraph of Paragraph 7.04(d)) and Paragraph 8 (other than in the
second paragraph of Paragraph 8.06 and in Paragraph 8.07) of the Purchase
Agreement shall include Transferee.
(c) MICROS agrees to use its best efforts (i) to keep the
Shelf Registration effective until the earlier of (A)
2
<PAGE> 3
three (3) years after the Shelf Registration is first declared effective and
(B) such time as Westinghouse has sold all of the Securities, (ii) to promptly
notify Westinghouse if it becomes aware that the prospectus contained in the
Shelf Registration (the "Basic Prospectus") contains an untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, (iii) to supplement or amend the Shelf Registration as
necessary so that the Basic Prospectus will not contain an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading and to provide Westinghouse with such Basic Prospectus, as
amended or supplemented, (iv) to file the Basic Prospectus and all prospectus
supplements with the Commission within the time period specified by Rule 424(b)
under the Securities Act and (v) to execute and deliver, and to perform its
obligations under, any and all agreements, instruments and documents, as
reasonably requested by Westinghouse (including, without limitation,
underwriting agreements, placement agreements, purchase agreements and any
similar agreements) and to do any and all acts and things which are not
detrimental to the interests of the Company and its
3
<PAGE> 4
shareholders and are necessary or advisable in connection with the sale of the
Securities under the Shelf Registration.
(d) Westinghouse may not sell any Securities for a period
of ten (10) days if MICROS (i) notifies Westinghouse that MICROS has reasonably
determined that there is a legitimate corporate reason to delay any sale of the
Securities and (ii) delivers a certificate signed by its President and Chief
Executive Officer and either its Executive Vice President and Chief Operating
Officer or its Vice President, Finance and Administration/ Chief Financial
Officer certifying that in the good faith judgment of such officers, it would
be seriously detrimental to MICROS or its shareholders for such sale to
proceed; provided, however, that the Company will not so commence such ten (10)
day period during the period following the execution and delivery of an
agreement by Westinghouse for a firm commitment underwriting of Securities or
a similar agreement until the closing of the sale of Securities thereunder.
(e) The Chief Financial Officer, the Vice President and
Treasurer or any Assistant Treasurer of Westinghouse (or any agent of any such
officers) shall give the President and Chief Executive Officer, the Executive
Vice President and Chief Operating Officer or the Vice President, Finance and
Administration/ Chief Financial Officer of MICROS prior written or oral notice
of any sale or other distribution of
4
<PAGE> 5
the Securities. Upon receipt of such notice, such officer of MICROS (i) shall
immediately notify Westinghouse whether any prospectus relating to the
Securities required under the Securities Act to be delivered to purchasers
contains an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading and (ii) shall as soon as practicable thereafter prepare a
supplement or amendment to such prospectus so that such prospectus, as
supplemented or amended, will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that nothing in this paragraph (e) shall prevent MICROS from exercising its
rights under paragraph (d) above.
(f) MICROS and Westinghouse confirm that (i) the
indemnification provided for in Paragraph 7.04(d) of the Purchase Agreement
shall also apply to a Shelf Registration and (ii) MICROS's indemnification
provided for in the first paragraph of Paragraph 7.04(d) of the Purchase
Agreement shall also apply to Transferee.
5
<PAGE> 6
(g) Westinghouse confirms that it will pay the expenses
incurred in connection with a Shelf Registration as a registration pursuant to
Paragraph 7.01 of the Purchase Agreement in accordance with Paragraph 7.04(c)
of the Purchase Agreement.
(h) For as long as Westinghouse directly or indirectly
owns at least eighteen percent (18%) of the then issued and outstanding shares
of Common Stock, Westinghouse shall use its best efforts to provide a quorum at
any duly convened meeting of the stockholders of MICROS.
Very truly yours,
MICROS SYSTEMS, INC.
By: Ronald J. Kolson
----------------------------
Name: Ronald J. Kolson
Title: Executive Vice
President and Chief
Operating Officer
Acknowledged and Agreed:
WESTINGHOUSE ELECTRIC CORPORATION
By: Claudia E. Morf
-----------------------------------
Name: Claudia E. Morf
Title: Vice President and Treasurer
6
<PAGE> 1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 (Registration No.
33-88768) of our report dated August 17, 1994 appearing on page 22 of the MICROS
Systems, Inc. Annual Report on Form 10-K for the year ended June 30, 1994. We
also consent to the reference to us under the heading "Experts" in such
Prospectus.
/S/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Baltimore, Maryland
May 1, 1995
