2,500,000 SHARES
THE TODD-AO CORPORATION
CLASS A COMMON STOCK
UNDERWRITING AGREEMENT
_____________, 1996
DEAN WITTER REYNOLDS INC.
BREAN MURRAY & CO., INC.
As Representatives of the
several Underwriters
c/o Dean Witter Reynolds Inc.
2 World Trade Center
65th Floor
New York, New York 10048
Dear Sirs:
1. INTRODUCTORY. The Todd-AO Corporation, a Delaware corporation (the
"Company") proposes to issue and sell, pursuant to the terms of this
Agreement, to the several Underwriters named in Schedule A hereto (the
"Underwriters" which term also shall include any underwriter substituted as
hereinafter provided in Section 11) an aggregate of 2,500,000 shares of Class
A Common Stock (the "Common Stock") of the Company. The aggregate of
2,500,000 shares so to be sold by the Company is herein called the "Firm
Stock". The Company also proposes to sell severally to the Underwriters, on
a pro rata basis, at the option of the Underwriters, an aggregate of not more
than 375,000 additional shares of Common Stock as provided in Section 4 of
this Agreement. The aggregate of 375,000 shares so proposed to be sold is
herein called the "Optional Stock". The Firm Stock and the Optional Stock
are collectively referred to herein as the "Stock". Dean Witter Reynolds
Inc. and Brean Murray & Co., Inc. are acting as representatives of the
several Underwriters and in such capacity are hereinafter referred to as the
"Representatives".
2. Before the purchase and public offering of the Stock by the several
Underwriters, the Company and the Representatives, acting on behalf of the
several Underwriters, shall enter into an agreement substantially in the form
of Exhibit A hereto (the "Pricing Agreement"). The Pricing Agreement may
take the form of an exchange of any standard
form of written telecommunication between the Company and the Representatives
and shall specify such applicable information as is indicated in Exhibit A
hereto. The offering of the Stock will be governed by this Agreement, as
supplemented by the Pricing Agreement. From and after the date of the
execution and delivery of the Pricing Agreement, this Agreement shall be
deemed to incorporate the Pricing Agreement.
3. (a) REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the several Underwriters, as of
the date hereof and as of the date of the Pricing Agreement (such later date
being hereinafter referred to as the "Representation Date"), that:
(i) A registration statement on Form S-1 (File No.
333-________) with respect to the Stock, a copy of which has
heretofore been delivered to you, has been carefully prepared by the
Company in conformity with the requirements of the Securities Act of
1933, as amended (the "Act"), and the published rules and regulations
(the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") under the Act, and has been filed with
the Commission under the Act; and the Company has so prepared and
proposes so to file prior to the effective date of such registration
statement an amendment to such registration statement including the
final form of prospectus (which may omit such information as permitted
by Rule 430A of the Rules and Regulations). Such registration
statement as amended and the prospectus constituting a part thereof
(including in each case the information, if any, deemed to be a part
thereof pursuant to Rule 430A(b) or Rule 434 of the Rules and
Regulations) are hereinafter referred to as the "Registration
Statement" and the "Prospectus," respectively, except that if any
revised prospectus shall be provided to the Underwriters by the
Company for use in connection with the offering of the Stock which
differs from the prospectus on file at the Commission at the time the
Registration Statement becomes effective (whether or not such
prospectus is required to be filed by the Company pursuant to Rule
424(b) of the Rules and Regulations), the term "Prospectus" shall
refer to such revised prospectus from and after the time it is first
provided to the Underwriters for such use. The box on the draft S-1
concerning delivery of the Prospectus pursuant to Rule 434 was not
checked. If the Company files a registration statement to register a
portion of the Securities and relies on Rule 462(b) for such
registration statement to become effective upon filing with the
Commission (the "Rule 462 Registration Statement"), then any reference
to "Registration
2
Statement" herein shall be deemed to be to both the registration
statement referred to above (No. 333-__________) and the Rule 462
Registration Statement, as each such registration statement may be
amended pursuant to the Act.
(ii) When the Registration Statement becomes effective and
as of the Representation Date, the Registration Statement and the
Prospectus will conform in all material respects to the requirements
of the Act and the Rules and Regulations. At the time the
Registration Statement becomes effective and at the Representation
Date, the Registration Statement will not include any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein
not misleading. The Prospectus, at the time the Registration
Statement becomes effective and as of the Representation Date (unless
the term "Prospectus" refers to a prospectus which has been provided
to the Underwriters by the Company for use in connection with the
offering of the Stock which differs from the prospectus on file at the
Commission at the time the Registration Statement becomes effective,
in which case at the time it is first provided to the Underwriters for
such use) and at the Closing Date (as hereinafter defined), will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that the foregoing representations,
warranties and agreements shall not apply to information contained in
or omitted from the Registration Statement or the Prospectus in
reliance upon, and in conformity with, written information furnished
to the Company by or on behalf of any Underwriter, directly or through
the Representatives, specifically for use in the preparation thereof.
(iii) Subsequent to the respective dates as of which
information is given in the Registration Statement and Prospectus,
(A) neither the Company nor any of its subsidiaries has incurred any
liabilities or obligations (indirect, direct or contingent) or entered
into any oral or written agreements or other transactions not in the
ordinary course of business that, singly or in the aggregate, could
reasonably be expected to be material to the Company and its
subsidiaries considered as a whole or that could reasonably be
expected to result in a material reduction in the earnings of the
Company and its subsidiaries considered as a whole, (B) neither the
3
Company nor any of its subsidiaries has sustained any loss or
interference with its business or properties from strike, fire, flood,
windstorm, accident or other calamity (whether or not covered by
insurance) that, singly or in the aggregate, could reasonably be
expected to be material to the Company and its subsidiaries considered
as a whole, (C) there has been no material change in the indebtedness
of the Company, no change in the capital stock of the Company and no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock, and (D) there has not been
any material adverse change, nor any development that could, singly or
in the aggregate, result in a material adverse change in the condition
(financial or other), business, prospects or results of operations of
the Company and its subsidiaries considered as a whole, whether or not
arising in the ordinary course of business.
(iv) The financial statements, together with the related
notes and schedules, set forth in the Prospectus and elsewhere in the
Registration Statement, fairly present, on the basis stated in the
Registration Statement, the financial position and the results of
operations and changes in financial position of the Company and its
consolidated subsidiaries at the respective dates or for the
respective periods therein specified. Such financial statements and
related notes and schedules have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
except as may be set forth in the Prospectus. The selected financial
data set forth in the Prospectus under the caption "Selected
Consolidated Financial Data" fairly presents, on the basis stated in
the Registration Statement, the information set forth therein. The
pro forma financial statements of the Company and the related notes
thereto included in the Registration Statement and the Prospectus have
been prepared in accordance with the Commission's rules and guidelines
with respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(v) Deloitte & Touche LLP, who have expressed their
opinions on the audited financial statements and related schedules
included in the Registration Statement, are independent public
accountants as required by the Act and the Rules and Regulations.
4
(vi) Gifford, Hillegass Ingwersen, P.C., who have expressed
their opinion on the audited financial statements of Editworks
Acquisition LLC ("Editworks"), are independent public accountants as
required by the Act and the Rules and Regulations.
(vii) The Company and each of its subsidiaries have been
duly organized and are validly existing and in good standing as
corporations under the laws of their respective jurisdictions of
organization, with power and authority (corporate and other) to own,
lease and operate their properties and to conduct their businesses as
described in the Registration Statement and Prospectus; the Company is
and each of its subsidiaries are in possession of and operating in
compliance with all franchises, grants, authorizations, licenses,
permits, easements, consents, certificates and orders required for the
conduct of its business, all of which are valid and in full force and
effect, and neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocation or
modification of any such franchise, grant, authorization, license,
permit, easement, consent, certificate or order which, singly or in
the aggregate, if the subject of an unfavorable decision, would result
in a materially adverse change in the condition (financial or
otherwise), business, prospects or results of operations of the
Company and its subsidiaries considered as a whole; and the Company is
and each of such subsidiaries are duly qualified to do business and in
good standing as foreign corporations in all other jurisdictions where
their ownership or leasing of properties or the conduct of their
businesses requires such qualification.
(viii) The Company has authorized, issued and outstanding
capital stock as set forth under the heading "Capitalization" in the
Prospectus (except for subsequent issuances, if any, pursuant to
reservations or agreements referred to in the Prospectus); the issued
and outstanding shares of Common Stock of the Company, conform to the
description thereof in the Prospectus and have been duly authorized
and validly issued and are fully paid and nonassessable; the
stockholders of the Company have no preemptive rights with respect to
any shares of capital stock of the Company and all outstanding shares
of capital stock of each corporate subsidiary have been duly
authorized and validly issued, and are fully paid and nonassessable
and are owned directly by the Company or by another subsidiary of the
Company free and clear of any liens, encumbrances, equities or claims.
5
(ix) The Stock to be issued and sold by the Company to the
Underwriters hereunder has been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein and
in the Pricing Agreement, will be duly and validly issued and fully
paid and nonassessable and will conform to the description thereof in
the Prospectus.
(x) Except as disclosed in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any subsidiary is the subject, that are required to be disclosed in
the Registration Statement (other than as described therein), or
which, if determined adversely to the Company or any subsidiary, would
individually or in the aggregate result in a material adverse change
in the condition (financial or otherwise), business, prospects or
results of operations of the Company and its subsidiaries considered
as a whole or which might materially and adversely affect the
consummation of this Agreement; and to the best of the Company's
knowledge no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(xi) Neither the Company nor any of its subsidiaries is, or
with the giving of notice or passage of time or both would be, in
breach or violation of any of the terms or provisions of or in default
under (A) any statute, rule or regulation applicable to the Company or
any of its subsidiaries, (B) any indenture, contract, lease, mortgage,
deed of trust, note or other agreement or instrument to which the
Company or such subsidiary is a party or by which it may be bound,
(C) its certificate of incorporation, by-laws or other organizational
documents, and (D) any order, decree or judgment of any court or
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries. The performance of this Agreement and the
consummation of the transactions herein contemplated will not, with
the giving of notice or passage of time or both, result in a breach or
violation of any of the terms or provisions of or constitute a default
under (W) any statute, rule or regulation applicable to the Company or
any of its subsidiaries, (X) any indenture, contract, mortgage, lease,
deed of trust, note or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it is bound,
(Y) the Company's or any such subsidiary's certificate of
incorporation, by-laws or other organizational documents, or (Z) any
order, decree judgment of any
6
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their respective
properties.
(xii) No labor dispute with the employees of the Company
or any of its subsidiaries exists or is imminent; and the Company is
not aware of any existing or imminent labor disturbance by the
employees of any of its principal suppliers, manufacturers or
contractors which might be expected to result in any material adverse
change in the condition (financial or otherwise), or in the earnings,
affairs or business prospects of the Company and its subsidiaries
considered as a whole.
(xiii) No consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body is required for the issuance and sale of the Stock by
the Company or for the consummation by the Company of the transactions
contemplated by this Agreement, including, without limitation, the use
of the proceeds from the sale of the Stock to be sold by the Company
in the manner contemplated in the Prospectus under the caption "Use of
Proceeds," except such as may be required by the National Association
of Securities Dealers, Inc. (the "NASD") or under the Act or the
securities or Blue Sky laws of any jurisdiction in connection with the
purchase and distribution of the Stock by the Underwriters.
(xiv) This Agreement and the Pricing Agreement have been
duly authorized, executed and delivered by the Company.
(xv) The Company and its subsidiaries own or have obtained
valid licenses for all trademarks, trademark registrations, service
marks, service mark registrations, trade names and copyrights
described in the Prospectus as being owned, licensed or used by the
Company or any of its subsidiaries or that are necessary for the
conduct of their respective businesses as described in the Prospectus
(collectively, "Intellectual Property") and neither the Company nor
any of its subsidiaries is aware of any claim (or of any facts that
would form a reasonable basis for any claim) to the contrary or any
challenge by any third party to the rights of the Company or any of
its subsidiaries with respect to any such Intellectual Property or to
the validity or scope of any such Intellectual Property and neither
the Company nor any of its subsidiaries have any claim against a third
party with respect to the infringement by such
7
third party of any such Intellectual Property, which claims or
challenges, if adversely determined, could, singly or in the
aggregate, have a material adverse effect on the condition
(financial or otherwise), business prospects or results of
operations of the Company and its subsidiaries considered as a
whole. The Company has a good faith belief in the distinctiveness
and enforceability of all trademarks, service marks and trade
names comprising the Intellectual Property.
(xvi) The Company and its subsidiaries have such
certificates, permits, licenses, franchises, consents, approvals,
authorizations and clearances as are necessary to own, lease or
operate their respective properties and to conduct their respective
businesses in the manner described in the Prospectus ("Licenses") and
all such Licenses are valid and in full force and effect. The Company
and each of its subsidiaries are in compliance in all material
respects with their respective obligations under such Licenses and no
event has occurred that allows, or after notice or lapse of time or
both would allow, revocation, suspension or termination of any such
License or a material violation of any such laws or regulations. No
such License contains a burdensome restriction on the Company or any
of its subsidiaries that is not adequately disclosed in the
Registration Statement and the Prospectus.
(xvii) The Company is not an "investment company" or an
entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended.
(xviii) The Company and its subsidiaries have good and
marketable title to all properties (real and personal) owned by the
Company and its subsidiaries, free and clear of any mortgage, pledge,
lien, security interest, claim or encumbrance of any kind that may
materially interfere with the use of such properties or the conduct of
the business of the Company and its subsidiaries considered as a
whole; and all material properties held under lease or sublease by the
Company or its subsidiaries are held under valid, subsisting and
enforceable leases or subleases.
(xix) The Company and its subsidiaries maintain accurate
books and records reflecting their respective assets and maintain
internal accounting controls which provide reasonable assurance that
(A) transactions are executed with management's authorization,
(B) transactions are recorded as necessary to permit preparation of
financial statements
8
and to maintain accountability for assets, (C) access to assets is
permitted only in accordance with management's authorization and
(D) the reported accountability of assets is compared with
existing assets at reasonable intervals.
(xx) The Company has complied, and will continue to comply,
with all provisions of Section 517.075 of the Florida Statutes
(Chapter 92-198, Laws of Florida) and the rules thereunder.
(xxi) The Company and its subsidiaries carry or are
entitled to the benefits of insurance in such amounts and covering
such risks as is generally maintained by or on behalf of companies of
established repute engaged in the same of similar business, and all
such insurance is in full force and effect.
(xxii) The Company and its subsidiaries have filed all
federal, state, local and foreign tax returns required to be filed,
such returns are complete and accurate in all material respects, and
all taxes shown by such returns or otherwise assessed that are due or
payable have been paid, except such taxes as are being contested in
good faith and as to which adequate reserves have been provided. The
charges, accruals and reserves on the books of the Company and its
subsidiaries in respect of any tax liability for any year not finally
determined are adequate to meet any assessments or reassessments for
additional taxes; and there has been no tax deficiency asserted and,
to the best knowledge of the Company, no tax deficiency might be
asserted or threatened against the Company or any of its subsidiaries
that could, singly or in the aggregate, have a material adverse effect
on the financial (financial or otherwise), business, prospects or
results of operations of the Company and its subsidiaries considered
as a whole.
(xxiii) Each "employee benefit plan" within the meaning of
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), in which employees of the Company or any of its
subsidiaries are eligible to participate is in compliance in all
material respects with the applicable provisions of ERISA and the
Internal Revenue Code of 1986, as amended. Neither the Company nor
any of its subsidiaries has any liability under Title IV of ERISA,
nor does the Company or any of its subsidiaries expect that any such
liability will be incurred, that could singly or in the aggregate,
have a material adverse effect on the condition (financial or
otherwise), business, prospects or results of
9
operations of the Company and its subsidiaries considered as a whole.
(xxiv) No transaction has occurred between or among the
Company, its subsidiaries and any of their respective officers,
directors or affiliates or, the best of the Company's knowledge, any
affiliate of any such officer or director, that is required to be
described in the Registration Statement that is not so described.
(xxv) Except as otherwise disclosed in the Registration
Statement or Prospectus, there are no contracts, agreements or
understandings between the Company or its subsidiaries and any third
party (whether acting in an individual, fiduciary or other capacity)
granting such third party the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such third party or to require the
Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act.
(xxvi) There are no statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
registration Statement that are not described or filed as required.
The contracts so described in the Registration Statement and the
Prospectus are in full force and effect and neither the Company or any
of its subsidiaries nor, to the best knowledge of the Company, any
other party is in breach of or default under any such contracts.
(xxvii) The properties, assets and operations of the
Company and its subsidiaries are in compliance with all applicable
federal, state, local and foreign laws, rules and regulations orders,
decrees, judgments, permits and licenses relating to public and worker
health and safety and to the protection and clean-up of the natural
environment and activities or conditions related thereto, including,
without limitation, those relating to the generation, handling,
disposal, transportation or release of hazardous materials
(collectively, "Environmental Laws"), except to the extent that
failure to comply could not, singly or in the aggregate, have a
material adverse effect on the condition (financial or otherwise),
business, prospects or results of operations of the Company and its
10
subsidiaries considered as a whole. With respect to such properties,
assets and operations, including any previously owned, leased or
operated properties, assets or operations, there are no past, present
or, to the best knowledge of the Company, reasonably anticipated
future events, conditions, circumstances, activities, practices,
incidents, actions or plans of the Company or any of its subsidiaries
that may interfere with or prevent compliance or continued compliance
in all material respects with applicable Environmental Laws. Neither
the Company nor any of its subsidiaries is the subject of any federal,
state, local or foreign investigation and neither the Company nor any
of its subsidiaries has received any notice or claim (or is aware of
any facts that would form a reasonable basis for any claim), nor
entered into any negotiations or agreements, with any third party
relating to any liability or remedial action or potential liability or
remedial action under Environmental Laws, nor are there any pending,
reasonably anticipated or, to the best knowledge of the Company,
threatened actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or their properties, assets, or
operations, in connection with any such Environmental Laws. The term
"hazardous materials" shall mean those substances that are regulated
by or form the basis for liability under any applicable Environmental
Laws.
(b) Any certificate signed by an officer of the Company and
delivered to the Representatives or counsel for the Underwriters shall be
deemed a representation and warranty of the Company to each Underwriter as
to the matters covered thereby.
4. PURCHASE BY, AND SALE AND DELIVERY TO, UNDERWRITERS; CLOSING DATE.
(a) On the basis of the representations, warranties, covenants
and agreements herein contained, and subject to the terms and conditions
herein set forth, the Company agrees to sell to the Underwriters the Firm
Stock; and subject to the terms and conditions herein set forth, the
Underwriters agree, severally and not jointly, to purchase from the
Company, at the price per share set forth in the Pricing Agreement, the
number of shares of Firm Stock set forth opposite their names in Schedule A
(except as otherwise provided in the Pricing Agreement), subject to
adjustment in accordance with Section 11 hereof.
(b) If the Company has elected not to rely upon Rule 430A under
the Rules and Regulations, the initial public offering price and the
purchase price per share to be paid by the several Underwriters for the
Firm Stock each
11
have been determined and set forth in the Pricing Agreement, dated the
date hereof, and an amendment to the Registration Statement and the
Prospectus will be filed before the Registration Statement becomes
effective.
If the Company has elected to rely upon Rule 430A under the Rules
and Regulations, the purchase price per share to be paid by the several
Underwriters for the Firm Stock shall be an amount equal to the initial
public offering price, less an amount per share to be determined by
agreement between the Representatives and the Company. The initial public
offering price per share of the Firm Stock shall be a fixed price to be
determined by agreement between the Representatives and the Company. The
initial public offering price per share of the Firm Stock shall not be
higher than the last "asked" quotation for the Common Stock immediately
prior to determination of the initial public offering price, as reported by
the National Association of Securities Dealers Automated Quotation System.
The initial public offering price and the purchase price, when so
determined, shall be set forth in the Pricing Agreement. In the event that
such prices have not been agreed upon and the Pricing Agreement has not
been executed and delivered by all parties thereto by the close of business
on the fourteenth business day following the date of this Agreement, this
Agreement shall terminate forthwith, without liability of any party to any
other party, unless otherwise agreed to by the Company and the
Representatives.
(c) The Company will deliver the Firm Stock to the
Representatives for the respective accounts of the several Underwriters (in
the form of definitive certificates, issued in such names and in such
denominations as the Representatives may direct by notice in writing to the
Company given at or prior to 12:00 Noon, New York Time, on the business day
preceding the Closing Date or, if no such direction is received, in the
names of the respective Underwriters in the amount set forth opposite each
Underwriter's name on Schedule A hereto), against payment of the purchase
price therefor by certified or official bank check or checks in New York
Clearing House or similar next day funds, payable to the order of the
Company, all at the offices of Greenberg Glusker Fields Claman & Machtinger
LLP, 1900 Avenue of the Stars, Los Angeles, California. The time and date
of delivery and closing shall be at 10:00 A.M., New York Time, on the third
full business day after the Registration Statement becomes effective (or,
if the Company has elected to rely upon Rule 430A, the third full business
day after execution of the Pricing Agreement); PROVIDED, HOWEVER, that such
date and time may be accelerated or extended by agreement among the Company
and the Representatives or postponed pursuant to the provisions of Section
13 hereof. The time and date of such payment and delivery
12
are herein referred to as the "Closing Date". The Company shall make the
certificates for the Stock available to the Representatives for
examination on behalf of the Underwriters not later than 3:00 P.M.,
New York Time, on the business day preceding the Closing Date.
(d) (i) In addition, for the purpose of covering any
over-allotments in connection with the distribution and sale of the Firm
Stock as contemplated by the Prospectus, the Company hereby grants the
Underwriters an option to purchase, severally and not jointly, up to
375,000 shares in the aggregate of the Optional Stock. The purchase price
per share to be paid for the Optional Stock shall be the same price per
share as for the Firm Stock, less the amount of any dividend declared by
the Company and payable on any Optional Stock and as to which the record
date has occurred after the date of the Pricing Agreement. The option
granted hereby may be exercised as to all or any part of the Optional Stock
at any time not more than 30 days subsequent to the effective date of this
Agreement. No Optional Stock shall be sold and delivered unless the Firm
Stock previously has been, or simultaneously is, sold and delivered. The
right to purchase the Optional Stock or any portion thereof may be
surrendered and terminated at any time upon notice by the Representatives
to the Company.
(ii) The option granted hereby may be exercised by the
Representatives on behalf of the Underwriters by giving written notice to
the Company setting forth the number of shares of the Optional Stock to be
purchased by them and the date and time for delivery of and payment for the
Optional Stock. Such date and time for delivery of and payment for the
Optional Stock (which may be the Closing Date) is herein called the "Option
Closing Date" and shall not be later than seven business days after written
notice is given. Optional Stock shall be purchased for the account of each
Underwriter in the same proportion as the number of shares of Firm Stock
set forth opposite such Underwriter's name in Schedule A hereto bears to
the total number of shares of Firm Stock (subject to adjustment by the
Representatives to eliminate odd lots). Upon exercise of the option by the
Representatives, the Company agrees to sell to the Underwriters the number
of shares of Optional Stock set forth in the written notice of exercise and
the Underwriters agree, severally and not jointly, subject to the terms and
conditions herein set forth, to purchase such shares of Optional Stock.
(iii) The Company will deliver the Optional Stock to the
Representatives for the respective accounts of the several Underwriters (in
the form of definitive certificates, issued in such names and in such
denominations as the Representatives may direct by notice in writing to
13
the Company given at or prior to 12:00 Noon, New York Time, on the
business day preceding the Option Closing Date or, if no such direction
is received, in the names of the respective Underwriters), against
payment of the purchase price therefor by certified or official bank
check or checks in New York Clearing House or similar next day funds,
payable to the order of the Company, all at the offices of Greenberg
Glusker Fields Claman & Machtinger LLP, 1900 Avenue of the Stars,
Los Angeles, California. The Company shall make the certificates for
the Optional Stock available to the Representatives for examination on
behalf of the Underwriters not later than 3:00 P.M., New York Time,
on the business day preceding the Option Closing Date.
(e) It is understood that Dean Witter Reynolds Inc. or Brean
Murray & Co., Inc., individually and not as Representatives of the several
Underwriters, may (but shall not be obligated to) make payment to the
Company on behalf of any Underwriter or Underwriters, for the Stock to be
purchased by such Underwriter or Underwriters. Any such payment by Dean
Witter Reynolds Inc. or Brean Murray & Co., Inc. shall not relieve such
Underwriter or Underwriters from any of its or their other obligations
hereunder.
(f) After the Registration Statement becomes effective, the
several Underwriters propose to make an initial public offering of the
Stock at the initial public offering price. The Representatives shall
promptly advise the Company of the making of the initial public offering.
5. COVENANTS AND AGREEMENTS OF THE COMPANY. The Company covenants
and agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement to become effective under the Act, will advise the
Representatives promptly as to the time at which the Registration Statement
becomes effective, will advise the Representatives promptly of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the institution of any proceedings for that
purpose, and will use its best efforts to prevent the issuance of any such
stop order and to obtain as soon as possible the lifting thereof, if
issued. The Company will provide the Underwriters with copies of the form
of Prospectus, in such number as the Underwriters may reasonably request,
and file or transmit for filing with the Commission such Prospectus in
accordance with Rule 424(b) of the Rules and Regulations by the close of
business in New York on the business day immediately succeeding the date of
the Pricing Agreement.
(b) The Company will advise the Representatives promptly of any
request by the Commission for any amendment
14
of or supplement to the Registration Statement or the Prospectus or for
additional information, and will not at any time file any amendment to
the Registration Statement or supplement to the Prospectus which shall
not previously have been submitted to the Representatives a reasonable
time prior to the proposed filings thereof or to which the Representatives
shall reasonably object in writing or which is not in compliance with
the Act and the Rules and Regulations.
(c) The Company will prepare and file with the Commission,
promptly upon the request of the Representatives, any amendments or
supplements to the Registration Statement or the Prospectus (including any
revised prospectus which the Company proposes for use by the Underwriters
in connection with the offering of the Stock which differs from the
prospectus on file at the Commission at the time the Registration Statement
becomes effective, whether or not such revised prospectus is required to be
filed pursuant to Rule 424 of the Rules and Regulations or any term sheet
prepared in reliance on Rule 434 of the Rules and Regulations) which in the
opinion of the Representatives may be necessary to enable the several
Underwriters to continue the distribution of the Stock and will use its
best efforts to cause the same to become effective as promptly as possible.
(d) If at any time after the effective date of the Registration
Statement when a prospectus relating to the Stock is required to be
delivered under the Act any event relating to or affecting the Company or
any of its subsidiaries occurs or has occurred as a result of which the
Prospectus would include an untrue statement of a material fact, or omit to
state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
if it is necessary, at any time to amend the Prospectus to comply with the
Act, the Company will promptly notify the Representatives thereof and will
prepare an amended or supplemented prospectus (in form and substance
satisfactory to counsel to the Underwriters) which will correct such
statement or omission; and, in case any Underwriter is required to deliver
a prospectus relating to the Stock nine months or more after the effective
date of the Registration Statement, the Company upon the request of the
Representatives and at the expense of such Underwriter will prepare
promptly such prospectus or prospectuses as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Act.
(e) The Company will deliver to the Representatives, at or
before the Closing Date, signed copies of the Registration Statement and
all amendments thereto including
15
all financial statements and exhibits thereto, and will deliver to the
Representatives such number of copies of the Registration Statement,
including such financial statements but without exhibits, and of all
amendments thereto, as the Representatives may reasonably request.
The Company will deliver or mail to or upon the order of the
Representatives on the date of the initial public offering, and
thereafter from time to time during the period when delivery of a
prospectus relating to the Stock is required under the Act, as many copies
of the Prospectus, in final form or as thereafter amended or supplemented
as the Representatives may reasonably request; PROVIDED, HOWEVER, that the
expense of the preparation and delivery of any prospectus required for use
nine months or more after the effective date of the Registration Statement
shall be borne by the Underwriters required to deliver such prospectus.
(f) The Company will make generally available to its security
holders as soon as practicable, but in any event not later than 60 days
after the close of the period covered thereby, an earnings statement (in
form complying with the provisions of Rule 158 under the Act) which will
be in reasonable detail (but which need not be audited) and which will
comply with Section 11(a) of the Act, covering a period of at least twelve
months beginning not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in Rule 158) of the
Registration Statement.
(g) The Company will cooperate with the Representatives to
enable the Stock to be qualified for sale under the securities laws of such
jurisdictions as the Representatives may designate and at the request of
the Representatives will make such applications and furnish such
information as may be required of it as the issuer of the Stock for that
purpose; provided, however, that the Company shall not be required to
qualify to do business or to file a general consent to service of process
in any such jurisdiction. The Company will, from time to time, prepare and
file such statements and reports as are or may be required of it as the
issuer of the Stock to continue such qualifications in effect for so long a
period as the Representatives may reasonably request for the distribution
of the Stock.
(h) The Company will furnish to its shareholders annual reports
containing financial statements certified by independent public accountants
and shall also furnish quarterly summary financial information in
reasonable detail which may be unaudited. During the period of five years
from the date hereof, the Company will deliver to the Representatives and,
upon request, to each of the other Underwriters, copies of each annual
report of the Company
16
and each other report furnished by the Company to its shareholders; and
will deliver to the Representatives, as soon as they are available,
copies of any other reports (financial or other) which the Company shall
publish or otherwise make available to any of its security holders as
such, and as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange or the NASD.
(i) The Company will file with the Nasdaq National Market all
documents and notices required by the Nasdaq National Market of companies
that have issued securities that are traded in the over-the-counter market
and quotations for which are reported by Nasdaq National Market.
(j) The Company will use the net proceeds received by it from
the sale of the Stock in the manner specified in the Prospectus under "Use
of Proceeds".
(k) During a period of 180 days from the date of the Pricing
Agreement, the Company will not, without prior written consent of Dean
Witter Reynolds Inc., directly or indirectly, sell, offer to sell, grant
any option for the sale of, or otherwise dispose of or enter into any
agreement to sell, any Common Stock or any security convertible into Common
Stock (except for Common Stock issued pursuant to reservations, agreements
or employee benefit plans disclosed in the Registration Statement).
(l) At the time this Agreement is executed, the Company shall
have furnished to the Representatives a letter from each officer and
director of the Company and _________ addressed to the Representatives, in
which each such person agrees that, during a period of 180 days from the
date of the Pricing Agreement, such person will not, without the prior
written consent of Dean Witter Reynolds Inc., directly or indirectly, (i)
sell, offer to sell, grant any option for the sale of, or otherwise dispose
of or transfer, any shares of Common Stock beneficially owned by such
person or any securities convertible into or exchangeable or exercisable
for such Common Stock, whether now owned or hereafter acquired by such
person or with respect to which has or hereafter acquires the power of
disposition, or file any registration statement under the Act with respect
to any of the foregoing or (ii) enter into any swap or any other agreement
or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction is to be settled by delivery of Common
Stock or other securities, in cash or otherwise.
17
6. PAYMENT OF EXPENSES.
(a) The Company will pay (directly or by reimbursement) all
expenses incident to the performance of the obligations of the Company
under this Agreement, including but not limited to all expenses and taxes
incident to delivery of the Stock to the Representatives, all expenses
incident to the registration of the Stock under the Act and the printing of
copies of the Registration Statement, each Preliminary Prospectus, the
Prospectus, any amendments or supplements thereto, the "Blue Sky"
memorandum, the Agreement Among Underwriters, Underwriters' Questionnaire
and this Agreement and furnishing the same to the Underwriters and dealers
except as otherwise provided in Section 5, the fees and disbursements of
the Company's counsel and accountants, all filing and printing fees and
expenses (including legal fees and disbursements of counsel for the
Underwriters) incurred in connection with qualification of the Stock for
sale under the laws of such jurisdictions as the Representatives may
designate, all fees and expenses (including legal fees and disbursements
of counsel for the Underwriters) paid or incurred in connection with
filings made with the National Association of Securities Dealers, Inc. (the
"NASD"), the fees and expenses incurred in connection with the listing of
the Stock on the Nasdaq National Market, the costs of preparing stock
certificates, the costs and fees of any registrar or transfer agent and all
other costs and expenses incident to the performance of their obligations
hereunder which are not otherwise specifically provided for in this
Section.
(b) If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 9, Section 10 or Section 13
hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the fees and disbursements of O'Melveny &
Myers LLP, counsel for the Underwriters.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) (i) The Company agrees to indemnify and hold harmless each
Underwriter, each employee, officer, partner, director and agent of the
Underwriter, and each person, if any, who controls such Underwriter within
the meaning of the Act, against any losses, claims, damages, liabilities or
expenses (including the reasonable cost of investigating and defending
against any claims therefor and counsel fees incurred in connection
therewith), joint or several, as incurred, which may be based upon the Act,
or any other federal or state statute or at common law, arising out of any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), including the
information deemed to
18
be part of the Registration Statement pursuant to Rule 430A(b) of the
Rules and Regulations, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact contained
in the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, unless such statement or
omission was made in reliance upon, and in conformity with, written
information furnished to the Company by such Underwriter, directly
or through the Representatives, specifically for use in the preparation
thereof; PROVIDED that the Company shall not be liable with respect to any
claims made against any Underwriter or any such employee, officer, partner,
director or agent or any such controlling person under this subsection
unless such Underwriter or employee, officer, partner, director or agent or
controlling person shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Underwriter or employee, officer, partner, director or agent or controlling
person (such notification by an Underwriter shall suffice as notification
on behalf of its officers, partners, directors, employees, agents and
controlling persons), but failure to notify the Company of any such claim
shall not relieve it from any liability which it may have to such
Underwriter or employee, officer, partner, director or agent or controlling
person otherwise than on account of the indemnity agreement contained in
this Section 7(a).
(ii) The Company shall be entitled to participate at its own
expense in the defense, or, if it so elects, to assume the defense for
misstatements or omissions in a Preliminary Prospectus of any suit brought
to enforce any such liability, but, if the Company elects to assume the
defense, such defense shall be conducted by counsel chosen by it and
reasonably satisfactory to such Underwriter or indemnified person, as the
case may be. In the event the Company elects to assume the defense of any
such suit and retain such counsel, the Underwriter or Underwriters or other
indemnified person or persons, defendant or defendants in the suit, may
retain additional counsel but shall bear the fees and expenses of such
counsel unless (i) the Company shall have specifically authorized the
retaining of such counsel or (ii) the parties to such suit include such
Underwriter or Underwriters other indemnified or person or persons, and
such Underwriter or Underwriters or other indemnified person or persons
have been advised by counsel that one or more legal defenses may be
available to it or
19
them which may not be available to the Company, in which case the
Company shall not be entitled to assume the defense of such suit
notwithstanding its obligation to bear the fees and expenses of such
counsel. The Company will not, without the prior written consent of each
Underwriter, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action, suit or proceeding in respect
of which indemnification may be sought hereunder (whether or not such
Underwriter or other indemnified party is a party to such claim, action,
suit or proceeding), unless such settlement, compromise or consent (i)
includes an unconditional release of such Underwriter and each such other
indemnified person or persons from all liability arising out of such claim,
action, suit or proceeding and (ii) does not include a statement as to or
as admission of fault, culpability or a failure to act by or on behalf of
any indemnified party. The Company agrees that a breach of the preceding
sentence shall cause irreparable harm to the Underwriters and that the
Underwriters shall be entitled to injunctive relief from any appropriate
court ordering specific performance of said provision. This indemnity
agreement will be in addition to any liability which the Company might
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who have
signed the Registration Statement, each of its employees, officers,
directors and agents and each person, if any, who controls the Company
within the meaning of the Act against any losses, claims, damages,
liabilities or expenses (including the reasonable cost of investigating and
defending against any claims therefor and counsel fees incurred in
connection therewith), joint or several, as incurred, which may be based
upon the Act, or any other statute or at common law, arising out of any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant to
Rule 430A(b) of the Rules and Regulations, if applicable, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but only insofar
as any such statement or omission was made in reliance upon, and in
conformity with, written information furnished to the Company by such
Underwriter, directly or through the Representatives, specifically for use
in the preparation
20
thereof; PROVIDED, HOWEVER, that in no case is such Underwriter to be
liable with respect to any claims made against the Company or any person
against whom the action is brought unless the Company or such person
shall have notified such Underwriter in writing within a reasonable
time after the summons or other first legal process giving information
of the nature of the claim shall have been served upon the Company or
such person, but failure to notify such Underwriter of such claim shall
not relieve it from any liability which it may have to the Company or
such person otherwise than on account of its indemnity agreement
contained in this Section 7(c). Such Underwriter shall be entitled to
participate at its own expense in the defense, or, if it so elects, to
assume the defense of any suit brought to enforce any such liability, but,
if such Underwriter elects to assume the defense, such defense shall be
conducted by counsel chosen by it and reasonably satisfactory to the
Company or such person, as the case may be. In the event that any
Underwriter elects to assume the defense of any such suit and retain such
counsel, the Company, said employees, agents, officers and directors
and any other Underwriter or Underwriters or employee or employees or agent
or agents or controlling person or persons, defendant or defendants in the
suit, shall bear the fees and expenses of any additional counsel retained
by them, respectively. The Underwriter against whom indemnity may be
sought shall not be liable to indemnify any person for any settlement of
any such claim effected without such Underwriter's consent. This indemnity
agreement will be in addition to any liability which such Underwriter might
otherwise have.
(c) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages,
liabilities or expenses (or actions in respect thereof) referred to herein,
then each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (or actions in respect thereof), as incurred, in
such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Stock. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then
each indemnifying party shall contribute to such amount paid or payable by
such indemnified party, as incurred, in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses (or actions in
21
respect thereof), as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution 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 which does not take
account of the equitable considerations referred to above. The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or expenses (or actions in respect thereof)
referred to above shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the shares of the Stock underwritten by it and distributed to
the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute are several in proportion to their
respective underwriting obligations and not joint.
8. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The
respective indemnities, covenants, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by them respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter, the Company or any of its officers or directors or
any controlling person, and shall survive delivery of and payment for the Stock.
22
9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the several Underwriters hereunder shall be subject to the
accuracy, at and (except as otherwise stated herein) as of the date hereof, the
Representation Date and the Closing Date or the Option Closing Date, as the case
may be, of the representations and warranties made herein by the Company, to the
accuracy of the statements of the Company's officers or directors in any
certificate furnished pursuant to the provisions hereof, to compliance at and as
of such Closing Date by the Company with its covenants and agreements herein
contained and other provisions hereof to be satisfied at or prior to such
Closing Date, and to the following additional conditions:
(a) The Registration Statement shall become effective not later
than 3:00 P.M., New York City time, on the date hereof or, with the consent
of the Representatives, at a later time and date, not later, however, than
5:30 P.M., New York City time on the first business day following the date
hereof, or at such later date as may be approved by a majority in interest
of the Underwriters, and at such Closing Date (i) no stop order suspending
the effectiveness thereof shall have been issued and no proceedings for
that purpose shall have been initiated or, to the knowledge of the Company
or the Representatives, threatened by the Commission, and any request for
additional information on the part of the Commission (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been
complied with to the reasonable satisfaction of the Representatives, and
(ii) there shall not have come to the attention of the Representatives any
facts that would cause them to believe that the Prospectus, at the time it
was required to be delivered to a purchaser of the Stock, contained any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If the Company
has elected to rely upon Rule 430A of the Rules and Regulations, the price
of the Stock and any price related information previously omitted from the
effective Registration Statement pursuant to Rule 430A shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) of the
Rules and Regulations within the prescribed time period, and before the
Closing Date the Company shall have provided evidence satisfactory to the
Representatives of such timely filing, or a post-effective amendment
providing such information shall have been promptly filed and declared
effective in accordance with the requirements of Rule 430A of the Rules and
Regulations.
(b) At the time of execution of this Agreement, the
Representatives shall have received from Deloitte & Touche LLP a letter,
dated the date of such execution, in
23
form and substance previously approved by the Representatives, and to
the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the Rules and Regulations.
(ii) In their opinion, the financial statements and
supporting schedule(s) examined by them and included in the
Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the Act and the related
published Rules and Regulations thereunder and, if applicable, they
have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the unaudited
consolidated interim financial statements, selected financial data,
pro forma financial information, prospective financial statements
and/or condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been
furnished to the Representatives;
(iii) The unaudited selected financial information
with respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years included
in the Prospectus agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial
statements for the five such fiscal years;
(iv) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in
the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of
income, consolidated
24
balance sheets and consolidated statements of cash flows
included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Act and the related published rules and regulations
thereunder, or are not in conformity with generally
accepted accounting principles applied on a basis substantially
consistent with the basis for the audited consolidated statements
of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
in the Prospectus;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with the
basis for the audited financial statements included in the
Prospectus;
(D) any unaudited pro forma consolidated condensed
financial statements included in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than three days
prior to the date of such letter, there has been any change in
the consolidated capital stock of the Company (other than
issuances of capital stock upon exercise of options and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included in
the Prospectus)
25
or any increase in the consolidated long-term debt of the
Company and consolidated subsidiaries, any decrease in the
consolidated net current assets, net assets or other items
specified by the Representatives, or any change in any other
items specified by the Representatives, in each case as compared
with amounts shown in the latest balance sheet included in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(F) for the period from the date of the latest
financial statements included in the Prospectus to the specified
date referred to in Clause (E) there was any decrease in
consolidated revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified
by the Representatives, or any increases in any items specified
by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period
of corresponding length specified by the Representatives, except
in each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(v) In addition to the examination referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (iii) and (iv) above, they have carried out certain
specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records
of the Company and its subsidiaries, which appear in the Prospectus or
in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
(vi) On the basis of a reading of the unaudited consolidated
condensed pro forma financial statements included in the Registration
Statement and the Prospectus, carrying out certain specified
procedures and inquiries of certain officials of the Company and its
consolidated subsidiaries who have
26
responsibility for financial and accounting matters, and proving
the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the unaudited consolidated
condensed pro forma financial statements, nothing came to their
attention that caused them to believe that the unaudited
consolidated condensed pro forma financial statements do not
comply as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that the
pro forma adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
(c) The Representatives shall have received from Deloitte &
Touche LLP a letter, dated the Closing Date, to the effect that such
accountants reaffirm, as of such Closing Date, and as through made on such
Closing Date, the statements made in the letter furnished by such
accountants pursuant to paragraph (b) of this Section 9, except that the
specified date will be a date not more than three business days prior to
the Closing Date.
(d) At the time of execution of this Agreement, the
Representatives shall have received from Gifford, Hillegass & Ingwersen,
P.C. a letter, dated the date of such execution, in form and substance
previously approved by the Representatives, and to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the Rules and Regulations.
(ii) In their opinion, the financial statements examined by
them and included in the Registration Statement comply as to form in
all material respects with the applicable accounting requirements of
the Act and the related published Rules and Regulations thereunder
and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the unaudited consolidated interim financial
statements, selected financial data, pro forma financial information,
prospective financial statements and/or condensed financial statements
derived from audited financial statements of Editworks for the periods
specified in such letter, as indicated in their reports thereon,
copies of which have been furnished to the Representatives;
(iii) On the basis of limited procedures, not constituting
an examination in accordance with generally accepted auditing
standards, consisting of a
27
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim
financial statements of Editworks, inspection of the minute books
of Editworks since the date of the latest audited financial
statements included in the Prospectus, inquiries of officials of
Editworks responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to believe
that:
(A) the unaudited condensed statements of income,
balance sheet and statements of cash flows included in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the related
published rules and regulations thereunder, or are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with the basis for the
audited statements of income, balance sheets and statements of
cash flows included in the Prospectus;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree with
the corresponding items in the unaudited financial statements
from which such data and items were derived, and any such
unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited financial statements included in the
Prospectus;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with the
basis for the audited financial statements included in the
Prospectus; and
(iv) In addition to the examination referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (iii) and (iv) above, they have carried out certain
specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts,
28
percentages and financial information specified by the
Representatives which are derived from the general accounting records
of Editworks, which appear in the Prospectus or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in
agreement.
(e) The Representatives shall have received from Gifford,
Hillegass & Ingwersen, P.C. a letter, dated the Closing Date, to the effect
that such accountants reaffirm, as of such Closing Date, and as through
made on such Closing Date, the statements made in the letter furnished by
such accountants pursuant to paragraph (d) of this Section 9, except that
the specified date will be a date not more than three business days prior
to the Closing Date.
(f) The Representatives shall have received from Greenberg
Glusker Fields Claman & Machtinger LLP, counsel for the Company, an
opinion, dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of Delaware
and has power and authority (corporate and other) to own or lease its
properties and conduct its business as described in the Prospectus;
the Company is in possession of and is operating in compliance with
all franchises, grants, authorizations, licenses, permits, easements,
consents, certificates and orders required for the conduct of its
business, all of which are valid and in full force and effect; and the
Company is duly qualified as a foreign corporation in good standing in
all other jurisdictions where its ownership or leasing of properties
or the conduct of its business requires such qualification.
(ii) The Company has an authorized and outstanding capital
stock as set forth under the heading "Capitalization" in the
Prospectus; all outstanding shares of Common Stock (including the
Stock) conform to the description thereof in the Prospectus and have
been duly authorized and validly issued and are fully paid and
nonassessable, and the stockholders of the Company have no preemptive
rights with respect to any shares of capital stock of the Company.
(iii) To the best of such counsel's knowledge, there are
no legal or governmental proceedings pending other than those set
forth under "Business -- Legal
29
Proceedings" in the Prospectus to which the Company or any of
its subsidiaries is a party or of which any property of the
Company or any subsidiary is the subject, which individually or
in the aggregate are material; and to the best of such counsel's
knowledge no such proceedings are threatened by governmental
authorities or others.
(iv) This Agreement and the Pricing Agreement have been duly
authorized, executed and delivered by the Company; and the performance
of this Agreement and the Pricing Agreement and the consummation of
the transactions herein and therein contemplated will not result in a
breach or violation of any of the terms or provisions of or constitute
a default under any statute, contract, indenture, mortgage, deed of
trust, loan agreement, note, lease or other agreement or instrument
known to such counsel to which the Company is a party or by which it
is bound, the Company's Certificate of Incorporation or By-laws, or
any order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or
any of its properties.
(v) No consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
by the Company of the transactions contemplated by this Agreement and
the Pricing Agreement, except such as may be required under the Act or
as may be required under the securities or Blue Sky laws of any
jurisdiction or by the NASD in connection with the purchase and
distribution of the Stock by the Underwriters.
(vi) The Registration Statement has become effective under
the Act and, to the best knowledge of such counsel, no stop order
suspending the effectiveness thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act.
(vii) The Common Stock has been approved for listing on
the Nasdaq National Market.
(viii) The Registration Statement and the Prospectus
(other than the financial statements and supporting schedules included
therein, as to which no opinions need be rendered), and each amendment
or supplement thereto, as of their respective effective or issue dates
and as of the Closing Date complied as to form in all material
respects with the requirements of the Act and the Rules and
Regulations.
30
(ix) The descriptions in the Registration Statement and
Prospectus of contracts and other documents are accurate in all
material respects and such descriptions fairly present in all material
respects the information required to be shown; and such counsel does
not know of any legal or governmental proceedings or of any contracts
or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement or Prospectus which are not described and filed
as required.
(x) The Company is not, and will not be as a result of the
consummation of the transactions contemplated by this Agreement, an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
(xi) Nothing has come to such counsel's attention that would
lead such counsel to believe that the Registration Statement, at the
time it became effective or at the Representation Date, contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the Representation
Date (unless the term "Prospectus" refers to a prospectus which has
been provided to the Underwriters by the Company for use in connection
with the offering of the Stock which differs from the prospectus on
file at the Commission at the time the Registration Statement became
effective, in which case at the time it was first provided to the
Underwriters for such use) or at the Closing Date, included any untrue
statement of a material fact or omitted to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(xii) Todd-AO Productions, Inc., Todd-AO Studios East,
Inc., Todd-AO East, Todd-AO Digital Images, Todd-AO Video Services,
Todd-AO Studios West, Todd-AO Europe Holdings Ltd., Editworks and
Chrysalis/Todd-AO Europe Ltd., [OTHERS] subsidiaries of the Company
(the "Subsidiaries"), have each been duly incorporated, are validly
existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation and have power and authority
(corporate and other) to own their respective properties and conduct
their respective businesses as described in the Prospectus, and each
of such Subsidiaries are duly qualified as foreign corporations
31
in good standing and in all other jurisdictions where their ownership
or leasing of properties or the conduct of their businesses requires
such qualification.
(xiii) All outstanding shares of capital stock of the
Subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable, and are owned by the Company free and clear of
any liens, encumbrances, equities and claims.
(g) The Representatives shall have received from O'Melveny &
Myers LLP, counsel for the Underwriters, their opinion or opinions dated
the Closing Date with respect to the validity of the Stock, the
Registration Statement, the Prospectus and such other related matters as
the Representatives may require. In giving such opinion, such counsel may
rely, as to all matters governed by the laws of jurisdictions other than
the laws of the States of California and New York and the General
Corporation Law of the State of Delaware and the federal law of the United
States, upon opinions of counsel satisfactory to the Representatives. The
Company shall have furnished to such counsel such documents as they may
request for the purpose of enabling them to pass upon such matters.
(h) The Representatives shall have received a certificate, dated
such Closing Date, of the Chief Executive Officer or the President and the
chief financial or accounting officer of the Company to the effect that:
(i) no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act; (ii) subsequent to
the respective dates as of which information is given in the Prospectus,
neither the Company nor any of its subsidiaries has incurred any
liabilities or obligations, direct or contingent, nor entered into any
transactions, not in the ordinary course of business, which in either case
are material to the Company and its subsidiaries considered as a whole,
whether or not arising in the ordinary course of business, and there has
not been any material adverse change in the condition (financial or
otherwise), business, prospects or results of operations of the Company and
its subsidiaries considered as a whole, or any change in the capital stock
or long-term debt of the Company and its subsidiaries considered as a
whole; (iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or before the
Closing Date; (iv) the representations and warranties of the Company in
this Agreement are true and correct at and as of the Closing Date; and (v)
between the execution of this Agreement and the Closing Date, the business
and operations conducted by the Company and its subsidiaries have not
32
sustained a loss by strike, fire, flood, accident or other calamity
(whether or not insured) of such a character as to interfere materially
with the conduct of the business and operations of the Company and its
subsidiaries considered as a whole. As used in this Section 9(h), the term
"Prospectus" means the Prospectus in the form first used to confirm sales
of Stock.
(i) The Company shall have furnished to the Representatives such
additional certificates as the Representatives may have reasonably
requested as to the accuracy, at and as of the Closing Date, of the
representations and warranties made herein by them as to compliance at and
as of the Closing Date by it with their covenants and agreements herein
contained and other provisions hereof to be satisfied at or prior to the
Closing Date and as to other conditions to the obligations of the
Underwriters hereunder.
(j) The Stock shall have been approved for listing on Nasdaq
National Market.
(k) In the event the Underwriters exercise the option granted in
Section 4(e) hereof to purchase all or any portion of the Optional Shares,
the representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall be
true and correct as of the Option Closing Date, and you shall have
received:
(i) Letters from Deloitte & Touche LLP and Gifford,
Hillegass & Ingwersen, P.C., in form and substance satisfactory to you
and dated the Option Closing Date, substantially the same in scope and
substance as the letters furnished to you pursuant to Section 9(b) and
9(d), except that the specified date in the letter furnished pursuant
to this subsection (m) shall be a date not more than five days prior
to the Option Closing Date.
(ii) A certificate, dated the Option Closing Date, of the
Chief Executive Officer or President and the chief financial or
accounting officer of the Company confirming that the certificate
delivered at the Closing Date pursuant to subsection (i) remains true
as of the Option Closing Date.
(iii) The opinion of Greenberg Glusker Fields Claman &
Machtinger LLP, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, dated the Option Closing
Date, relating to the Optional Stock and otherwise to the same effect
as the opinion required by subsection (f).
33
(iv) The opinion of O'Melveny & Myers LLP, counsel for the
Underwriters, dated the Option Closing Date, relating to the Optional
Stock and otherwise to the same effect as the opinion required by
subsection (g).
If any of the conditions hereinabove provided for in this Section shall
not have been satisfied when and as required by this Agreement, this
Agreement may be terminated by the Representatives by notifying the Company
of such termination in writing or by telegram at or prior to the Closing
Date, but the Representatives shall be entitled to waive any of such
conditions.
10. TERMINATION. This Agreement may be terminated by the
Representatives by notice to the Company if at or prior to the Closing Date
or the Option Closing Date, as the case may be, (i) trading in securities on
the New York or American Stock Exchanges shall have been suspended or minimum
or maximum prices shall have been established on either such exchange, or a
banking moratorium shall have been declared by New York or United States
authorities; (ii) there shall have been any adverse change in the financial
markets in the United States, Japan or Europe or any outbreak or escalation
of hostilities between the United States and any foreign power, or of any
other insurrection or armed conflict involving the United States that, in the
judgment of the Representatives, makes it impracticable or inadvisable to
offer, sell or deliver the Firm Stock or the Optional Stock as applicable, on
the terms contemplated by the Prospectus or this Agreement; (iii) there shall
have been since the execution of this Agreement or since the respective dates
as of which information is given in the Prospectus any material adverse
change in the condition (financial or otherwise), or business, prospects or
results of operations of the Company and its subsidiaries considered as a
whole; (iv) there shall have been any development involving the business or
properties or securities of the Company or any of its subsidiaries or the
transactions contemplated by this Agreement, which, in the judgment of the
Representatives, makes it impracticable or inadvisable to offer, sell or
deliver the Firm Stock or Option Stock, as applicable, on the terms
contemplated by the Prospectus or this Agreement or (v) if there shall be any
litigation, pending or threatened, which, in the judgment of the
Representatives, makes it impracticable or inadvisable to offer or deliver
the Firm Stock or the Optional Stock, as applicable, on the terms
contemplated by the Prospectus or this Agreement. As used in this Section
10, the term "Prospectus" means the Prospectus in the form first used to
confirm sales of Stock.
11. REIMBURSEMENT OF UNDERWRITERS. Notwithstanding any other
provisions hereof, if this Agreement shall be terminated by the Representatives
under Section 9, Section 10 or Section 13, the Company will bear and pay the
expenses specified
34
in Section 6 hereof and, in addition to their obligations pursuant to Section
7, hereof, the Company will reimburse the reasonable out-of-pocket expenses
of the several Underwriters (including reasonable fees and disbursements of
counsel for the Underwriters) incurred in connection with this Agreement and
the proposed purchase of the Stock, and promptly upon demand the Company will
pay such amounts to you as Representatives. In addition, the provisions of
Section 7 shall survive any such termination.
12. DEFAULT BY UNDERWRITERS. If any Underwriter or Underwriters shall
default in its or their obligations to purchase shares of Firm Stock
hereunder on the Closing Date and the aggregate number of shares of Firm
Stock which such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares which the
Underwriters are obligated to purchase at the Closing Date, the other
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the shares of Stock which such defaulting
Underwriter or Underwriters agreed but failed to purchase. If any
Underwriter or Underwriters shall so default and the aggregate number of
shares of Stock with respect to which such default or defaults occur is more
than 10% of the total number of shares underwritten and arrangements
satisfactory to the Representatives and the Company for the purchase of such
shares of Firm Stock by other persons are not made within 48 hours after such
default, this Agreement shall terminate.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or part of the shares of Firm Stock of a
defaulting Underwriter or Underwriters as provided in this Section 12, (i)
the Company shall have the right to postpone the Closing Date for a period of
not more than five full business days, in order that the Company may effect
whatever changes may thereby be made necessary in the Registration Statement
or the Prospectus, or in any other documents or arrangements, and the Company
agrees promptly to file any amendments to the Registration Statement or
supplements to the Prospectus which may thereby be made necessary, and (ii)
the respective numbers of shares of Firm Stock to be purchased by the
remaining Underwriters or substituted underwriters shall be taken as the
basis of their underwriting obligation for all purposes of this Agreement.
Nothing herein contained shall relieve any defaulting Underwriter of its
liability to the Company or the Underwriters for damages occasioned by its
default hereunder. Any termination of this Agreement pursuant to this
Section 12 shall be without liability on the part of any non-defaulting
Underwriter or the Company, except for expenses to be paid or reimbursed
pursuant to Section 6 and except for the provisions of Section 7.
35
13. DEFAULT BY THE COMPANY. If the Company shall fail at the Closing
Date to sell and deliver the number of shares of Stock which it is obligated
to sell hereunder, then this Agreement shall terminate without any liability
on the part of any non-defaulting party. No action taken pursuant to this
Section shall relieve the Company so defaulting from liability, if any, in
respect of such default.
14. NOTICES. All communications hereunder shall be in writing and, if
sent to the Underwriters shall be mailed, delivered or telegraphed and
confirmed to you, as their Representatives c/o Dean Witter Reynolds Inc. at
Two World Trade Center, 65th Floor, Corporate Finance, New York, New York
10048, Attn: Samuel H. Wolcott, III, except that notices given to an
Underwriter pursuant to Section 7 hereof shall be sent to such Underwriter at
the address provided to the Representatives or, if sent to the Company, shall
be mailed, delivered or telegraphed and confirmed c/o The Todd-AO Corporation
at 900 North Seward Street, Hollywood, California 90038,
ATTN:_______________.
15. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the several Underwriters, the Company and their respective
successors and legal representatives. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person other than the
persons mentioned in the preceding sentence any legal or equitable right,
remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof
being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person; except that the
representations, warranties, covenants, agreements and indemnities of the
Company contained in this Agreement shall also be for the benefit of the
person or persons, if any, who control any Underwriter or Underwriters within
the meaning of Section 15 of the Act, and the indemnities of the several
Underwriters shall also be for the benefit of each director of the Company,
each of its officers who has signed the Registration Statement and the person
or persons, if any, who control the Company within the meaning of Section 15
of the Act.
16. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS. The Company hereby consents to personal
jurisdiction in the State of New York and voluntarily submits to the
jurisdiction of the courts of such state, including the federal district
courts located in such state, in any proceeding with respect to this
Agreement.
17. COUNTERPARTS. This Agreement may be executed by one or more
parties hereto in any number of counterparts each of which shall be deemed to
be an original, but all such
36
counterparts shall together constitute one and the same instrument.
18. AUTHORITY OF THE REPRESENTATIVES. In connection with this
Agreement, the Representatives will act for and on behalf of the several
Underwriters, and any action taken under this Agreement by the
Representatives jointly or by Dean Witter Reynolds Inc., as representatives
of the several Underwriters, will be binding on all the Underwriters.
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose,
whereupon this letter and your acceptance shall constitute a binding
agreement between us.
Very truly yours,
THE TODD-AO CORPORATION
By
------------------------------------
Accepted and delivered,
as of the date first above written:
DEAN WITTER REYNOLDS INC.
BREAN MURRAY & CO., INC.
Acting on their own behalf and
as Representatives of the several
Underwriters referred to in the
foregoing Agreement.
BY: DEAN WITTER REYNOLDS INC.
By:
------------------------------
Authorized Signature
BY: BREAN MURRAY & CO., INC.
By:
-----------------------------
Authorized Signature
37
SCHEDULE A
Number of
Shares of
Name of Stock to be
Underwriter Purchased
----------- -----------
------------
Total
------------
------------
38
EXHIBIT A
2,500,000 Shares
THE TODD-AO CORPORATION
Class A Common Stock
PRICING AGREEMENT
_________ __, 1996
DEAN WITTER REYNOLDS INC.
BREAN MURRAY & CO., INC.
As Representatives of the several Underwriters
c/o Dean Witter Reynolds Inc.
2 World Trade Center
65th Floor
New York, New York 10048
Dear Sirs:
Reference is made to the Underwriting Agreement, dated __________ __,
1996 (the "Underwriting Agreement"), relating to the purchase by the several
Underwriters named in Schedule A thereto, for whom Dean Witter Reynolds Inc.
and Brean Murray & Co., Inc. are acting as representatives (the
"Representatives"), of the above shares of Class A Common Stock (the "Common
Stock") of The Todd-AO Corporation (the "Company").
Pursuant to Section 4 of the Underwriting Agreement, the Company agrees
with each underwriter as follows:
1. The initial public offering price per share for the Stock,
determined as provided in Section 4, shall be $_______________.
2. The purchase price per share for the Stock to be paid by the
several Underwriters shall be $_______________.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along
with all counterparts, will become a binding agreement between the
Underwriters and the Company in accordance with its terms.
Very truly yours,
THE TODD-AO CORPORATION
By:
-----------------------------------
Accepted and delivered,
as of the date first above written:
DEAN WITTER REYNOLDS INC.
BREAN MURRAY & CO., INC.
Acting on their own behalf and as
Representatives of the several
Underwriters referred to in the
foregoing Agreement.
BY: DEAN WITTER REYNOLDS INC.
By
-------------------------------
Authorized Signature
BY: BREAN MURRAY & CO., INC.
By:
------------------------------
Authorized Signature
40