THE MIDDLEBY CORPORATION
2,610,000 Shares
Common Stock
(Par Value $0.01 Per Share)
_________________
UNDERWRITING AGREEMENT
New York, New York
September ___,1997
SCHRODER & CO. INC.
BREAN MURRAY & CO., INC.
As Representatives of the several
Underwriters named in Schedule I hereto
c/o Schroder & Co. Inc.
Equitable Center
787 Seventh Avenue
New York, New York 10019-6016
Ladies & Gentlemen:
THE MIDDLEBY CORPORATION, a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters"), an aggregate of
2,000,000 shares of Common Stock, par value $0.01 per share (the "Common
Stock"), and the persons named in Schedule II hereto (the "Selling
Stockholders"), propose, subject to the terms and conditions stated herein, to
sell to the Underwriters an aggregate of 610,000 shares of Common Stock. The
2,610,000 shares of Common Stock to be sold by the Company and the Selling
Stockholders are herein referred to as the "Firm Securities." In addition, the
Company proposes to grant to the Underwriters an option to purchase up to an
additional 391,500 shares of Common Stock (the "Option Securities"), on the
terms and for the purposes set forth in Section 2 hereof. The Firm Securities
and the Option Securities are herein collectively referred to as the
"Securities." Except as may be expressly set forth below, any reference to you
in this Agreement shall be solely in your capacity as the Representatives.
-1-
1A. The Company and each of Messrs. William F. Whitman, Jr. and David P.
Riley (the "Principal Selling Stockholders"), jointly and severally, represent
and warrant to, and agree with, each of the Underwriters that:
(a) A registration statement on Form S-2 (File No. 333- ),
and as a part thereof a preliminary prospectus, in respect of the
Securities, has been filed with the Securities and Exchange Commission
(the "Commission") in the form heretofore delivered to you and, with
the exception of exhibits to the registration statement, also
delivered to you for each of the other Underwriters; if such
registration statement has not become effective, an amendment (the
"Final Amendment") to such registration statement, including a form of
final prospectus, necessary to permit such registration statement to
become effective, will promptly be filed by the Company with the
Commission; if such registration statement has become effective and
any post-effective amendment to such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, which amendment or amendments shall be in form acceptable
to you, the most recent such amendment has been declared effective by
the Commission; if such registration statement has become effective, a
final prospectus (the "Rule 430A Prospectus") relating to the
Securities containing information permitted to be omitted at the time
of effectiveness by Rule 430A of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"),
will promptly be filed by the Company pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Act (any preliminary
prospectus filed as part of such registration statement being herein
called a "Preliminary Prospectus," and the final prospectus relating
to the Securities in the form first filed pursuant to Rule 424(b)(1)
or (4) of the rules and regulations of the Commission under the Act
or, if no such filing is required, the form of final prospectus
included in the registration statement, being herein called the
"Prospectus"); "Registration Statement" means such registration
statement as amended at the time that it becomes or became effective,
or, if applicable, as amended at the time the most recent post-effective
amendment to such
-2-
registration statement filed with the Commission prior to the execution
and delivery of this Agreement became effective (the "Effective Date"),
including all exhibits thereto and all information deemed to be a part
thereof at such time pursuant to Rule 430A of the rules and regulations
of the Commission under the Act; any reference herein to any Preliminary
Prospectus or the Prospectus or the Registration Statement shall be deemed
to include any information incorporated by reference therein, as of the
date of such Preliminary Prospectus, the Prospectus or the
Registration Statement, as the case may be, and any reference to any
amendment or supplement to any Preliminary Prospectus, the Prospectus
or the Registration Statement shall be deemed to include any documents
filed after such date under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations of the
Commission thereunder and so incorporated by reference;
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations
of the Commission thereunder, and did not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through you expressly for use therein;
(c) On the Effective Date and the date the Prospectus is filed
with the Commission, and when any further amendment or supplements
thereto become effective or are filed with the Commission, as the case
may be, the Registration Statement, the Prospectus and such amendment
or supplements did and will conform in all material respects to the
requirements of the Act and the rules and regulations of the
-3-
Commission thereunder, and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter through you expressly for use therein;
(d) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and to conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction where the nature of the property owned or leased by
it, or the nature of the business conducted by it, makes such
qualification necessary (except where the failure to so qualify would
not have a material adverse effect on the condition, financial or
otherwise, or the business affairs or prospects of the Company and its
subsidiaries, taken as a whole); and each of the Company's
subsidiaries has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own
its properties and to conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under
-4-
the laws of each other jurisdiction where the nature of the property
owned or leased by it, or the nature of the business conducted by it,
makes such qualification necessary (except where the failure to so
qualify would not have a material adverse effect on the condition,
financial or otherwise, or the business affairs or prospects of the
Company and its subsidiaries, taken as a whole);
(f) All the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and, except as otherwise set forth in
the Prospectus, are owned by the Company free and clear of all liens,
encumbrances, equities, security interests, or claims; and, except as
otherwise set forth in the Prospectus, there are no outstanding
options, warrants or other rights calling for the issuance of, and
there are no commitments, plans or arrangements to issue, any shares
of capital stock of any subsidiary or any security convertible or
exchangeable or exercisable for capital stock of any subsidiary;
except for the shares of stock of each subsidiary owned by the Company
and as otherwise set forth in the Prospectus, neither the Company nor
any subsidiary owns, directly or indirectly, any shares of capital
stock of any corporation or has any equity interest in any firm,
partnership, joint venture, association or other entity;
(g) The Company has all requisite power and authority (corporate
and other) to execute, deliver and perform its obligations under this
Agreement; the execution, delivery and performance by the Company of
its obligations under this Agreement have been duly and validly
authorized by all requisite corporate action of the Company; and this
Agreement constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms;
(h) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus, any loss of or material dispute with any
of its ten largest customers or its ten largest suppliers of
-5-
products or services (measured by dollar volume during the Company's most
recent fiscal year) or any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute, work stoppage or work slowdown
or court or governmental action, order or decree, which loss or
interference is material to the Company and its subsidiaries, taken as
a whole; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been, and prior to the Time of Delivery (as defined in Section 4
hereof) there will not be, any change in the capital stock, other than
shares issued pursuant to exercise of employee or director stock
options that the Prospectus indicates are outstanding (the "Option
Shares"), pursuant to exercise of warrants that the Prospectus
indicates are outstanding, or pursuant to the terms of convertible or
exchangeable securities of the Company or its subsidiaries outstanding
on the date hereof and described in the Prospectus or short-term debt
or long-term debt of the Company or any of its subsidiaries that is
described in the Prospectus, or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(i) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title
to all personal property purported to be owned by them, in each case
free and clear of all liens, encumbrances and defects except those
that are described or contemplated by the Prospectus, or those that do
not materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the
Company and its subsidiaries; any real property and buildings held
under lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are
not material and do not interfere with the use made and proposed to be
made of such real property and
-6-
buildings by the Company and its subsidiaries; and the properties of the
Company and its subsidiaries, and their respective operations, are
insured to the extent insurance is customarily obtained by similar
businesses;
(j) The Company has an authorized, issued and outstanding
capitalization as set forth in the Registration Statement, and all the
issued shares of capital stock of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable, are
free of any preemptive rights, rights of first refusal or similar
rights, were issued and sold in compliance with the applicable federal
and state securities laws, are quoted on the Nasdaq National Market
System and conform in all material respects to the description thereof
in the Prospectus; except as described in the Prospectus, there are no
outstanding options, warrants or other rights calling for the issuance
of, and there are no commitments, plans or arrangements to issue, any
shares of capital stock of the Company or any security convertible or
exchangeable or exercisable for capital stock of the Company; except
for William F. Whitman, Jr., there are no holders of securities of the
Company who, by reason of the filing of the Registration Statement
have the right (and have not waived such right) to request the Company
to include in the Registration Statement securities owned by them;
(k) The Securities to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and non-assessable, and will
conform in all material respects to the description thereof in the
Prospectus and will be quoted on the Nasdaq National Market System as
of the Effective Date;
(l) The performance of this Agreement, the consummation of the
transactions herein contemplated, the issue and sale of the Securities
and the compliance by the Company with all the provisions of this
Agreement will not conflict with or result in a breach or violation of
any of the terms or
-7-
provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge, claim or encumbrance upon, any of the
property or assets of the Company or any of its subsidiaries pursuant to,
any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the provisions
of the Certificate of Incorporation or the By-laws (or similar corporate
constituent documents), in each case as amended to the date hereof, of
the Company or any of its subsidiaries or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their respective properties; and no consent, approval, authorization,
order, registration or qualification of or with any court or
governmental agency or body is required for the issue and sale of the
Securities or the consummation of the other transactions contemplated
by this Agreement, except the registration under the Act of the
Securities, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state or
foreign securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters;
(m) Except as set forth in the Prospectus, there is no legal or
governmental action, suit, proceeding or investigation pending to
which the Company or any of its subsidiaries or any of their
respective officers or directors is a party or of which the Company or
any of its subsidiaries or their respective properties is the subject,
other than actions, suits, proceedings or investigations incident to
the business conducted by the Company and its subsidiaries that will
not individually or in the aggregate have a material adverse effect on
the current or future financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole; to the best of the Company's knowledge, no such actions, suits,
proceedings or investigations are threatened or
-8-
contemplated by governmental authorities or threatened or contemplated by
others; neither the Company nor any of its subsidiaries is involved in any
labor dispute, work stoppage, or work slowdown, nor, to the Company's
knowledge, is any labor dispute, work stoppage, or work slowdown
threatened; and neither the Company nor any of its subsidiaries is
subject to any outstanding order, ruling, judgment, award or decree
that may have a material adverse effect upon the Company and its
subsidiaries, taken as a whole;
(n) The Company and its subsidiaries have such licenses, permits
and other approvals or authorizations of and from governmental or
regulatory authorities ("Permits") as are necessary under applicable
law to own their respective properties and to conduct their respective
businesses in the manner now being conducted and as described in the
Prospectus; and the Company and its subsidiaries have fulfilled and
performed all of their respective obligations with respect to such
Permits, and no event has occurred that allows, or after notice or
lapse of time or both would allow, revocation or termination thereof
or result in any other material impairment of the rights of the holder
of any such permits;
(o) Arthur Andersen LLP have certified certain financial
statements of the Company and its consolidated subsidiaries, have
delivered their report with respect to the audited consolidated
financial statements and schedules included in the Registration
Statement and the Prospectus, and are independent public accountants
as required by the Act and the rules and regulations of the Commission
thereunder;
(p) The consolidated financial statements and schedules of the
Company and its subsidiaries included or incorporated by reference in
the Registration Statement and the Prospectus present fairly the
financial condition, the results of operations and the cash flows of
the Company and its subsidiaries as of the dates and for the periods
therein specified in conformity with generally accepted accounting
principles consistently applied throughout the periods
-9-
involved, except as otherwise stated therein; and the other financial and
statistical information and data set forth in the Registration
Statement and the Prospectus is accurately presented and, to the
extent such information and data is derived from the financial
statements and books and records of the Company and its subsidiaries,
is prepared on a basis consistent with such financial statements and
the books and records of the Company and its subsidiaries; and no
other financial statements or schedules are required to be included in
the Registration Statement and the Prospectus;
(q) There are no statutes or governmental regulations, or any
contracts or other documents that are required to be described in or
filed as exhibits to the Registration Statement that are not described
therein or filed or incorporated by reference as exhibits thereto; and
all such contracts to which the Company or any subsidiary is a party
have been duly authorized, executed and delivered by the Company or
such subsidiary, constitute valid and binding agreements of the
Company or such subsidiary, have been performed or are being performed
in all material respects and are enforceable against the Company or
such subsidiary in accordance with the terms thereof;
(r) The Company and its subsidiaries own or possess adequate
patent rights or licenses or other rights to use patent rights,
inventions, trademarks, service marks, trade names, copyrights,
technology and know-how necessary to conduct the general business now
or proposed to be operated by them as described in the Prospectus;
neither the Company nor any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of others
with respect to any patent, patent rights, inventions, trademarks,
service marks, trade names, copyrights, technology or know-how that,
individually or in the aggregate, could materially adversely affect
the business, operations, financial condition, income or business
prospects of the Company and its subsidiaries, taken as a whole; and,
the discoveries, inventions, products or processes of the Company and
its subsidiaries referred to in the Prospectus do not, to the
Company's knowledge,
-10-
infringe or conflict with any patent or other right of any third party,
or any discovery, invention, product or process that is the subject of a
patent application filed by any third party, known to the Company;
(s) Neither the Company nor any of its subsidiaries are in
violation of any term or provision of its Certificate of Incorporation
or By-Laws (or similar corporate constituent documents), in each case
as amended to the date hereof, or any law, ordinance, administrative
or governmental rule or regulation applicable to the Company or any of
its subsidiaries, or of any decree of any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries;
(t) No default exists, and no event has occurred that with
notice or lapse of time, or both, would constitute a default in the
due performance and observance of any term, covenant or condition of
any indenture, mortgage, deed of trust, bank loan or credit agreement,
lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which any of them or their
respective properties is bound or may be affected in any material
adverse respect with regard to the property, business or operations of
the Company and its subsidiaries;
(u) The Company and its subsidiaries have timely filed all
necessary tax returns and notices and have paid all federal, state,
county, local and foreign taxes of any nature whatsoever for all tax
years through December 28, 1996, to the extent such taxes have become
due. The Company has no knowledge, or any reasonable grounds to know,
of any tax deficiencies that would have a material adverse effect on
the Company or any of its subsidiaries; the Company and its
subsidiaries have paid all taxes that have become due, whether
pursuant to any assessments or otherwise, and there is no further
liability (whether or not disclosed on such returns) or assessments
for any such taxes, and no interest or penalties accrued or accruing
with respect thereto, except as may be set forth or adequately
reserved for in the financial statements included or incorporated by
reference in the Registration
-11-
Statement; the amounts currently set up as provisions for taxes or
otherwise by the Company and its subsidiaries on their books and records
are sufficient for the payment of all their unpaid federal, state, county,
local and foreign taxes accrued through the dates as of which they speak,
and for which the Company and its subsidiaries may be liable in their own
right, or as a transferee of the assets of, or as successor to, any other
corporation, association, partnership, joint venture or other entity;
(v) The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit the preparation of financial
statements in conformity with generally accepted accounting principles
and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;
(w) Neither the Company nor any of its subsidiaries is in
violation of, nor has any of them received any outstanding notice of a
violation of, any foreign, federal, state, county or local law or
regulation relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants, antitrust or trade regulation matters, any federal or
state law relating to equal employment or discrimination in the
hiring, promotion or paying of employees or civil rights generally,
any applicable federal or state wages and hours laws, or any
provisions of the Employee Retirement Income Security Act of 1974, as
amended, or the rules and regulations promulgated thereunder, where
such violation would have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(x) None of the Company or its subsidiaries, or any of their
respective officers,
-12-
directors, employees or agents have used any corporate funds for any
unlawful contribution, payment, gift or entertainment or other unlawful
expense relating to political activity, or made any unlawful payment of
funds of the Company or any subsidiary or received or retained any
contribution, payment, gift or expenditure in violation of any law, rule
or regulation;
(y) None of the Company or its subsidiaries, or any of their
respective officers, directors, employees or agents have taken or will
take, directly or indirectly, any action designed to or that has
constituted or that might be reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities; and
(z) The conditions for use of Form S-2 as set forth in the
General Instructions thereto, have been satisfied.
1B. Each Selling Stockholder, severally and not jointly, represents and
warrants to, and agrees with, each of the Underwriters that:
(a) Such Selling Stockholder has, and at the Time of Delivery
(as defined in Section 4 hereof) will have, good and valid title to
the Securities to be sold by such Selling Stockholder hereunder, free
and clear of any liens, encumbrances, equities, security interests,
claims and other restrictions of any nature whatsoever, and such
Selling Stockholder has the full legal, right, power and authority,
and any approval required by law, to enter into this Agreement and to
sell, assign, transfer and deliver the Securities being sold by such
Selling Stockholder hereunder and to make the representations,
warranties, covenants and agreements made by it in this Agreement; and
upon the delivery of and payment for such Securities as herein
provided, the Underwriters will acquire good and valid title thereto,
free and clear of all liens, encumbrances, equities, security
interests, claims and other restrictions of any nature whatsoever;
-13-
(b) Such Selling Stockholder has duly executed and delivered an
agreement and power of attorney (with respect to such Selling
Stockholder, the "Power-of-Attorney", in the form heretofore delivered
to the Representatives, appointing John J. Hastings as such
Selling Stockholder's attorney-in-fact (the "Attorney-in-Fact") with
authority to execute, deliver and perform this Agreement on behalf of
the Selling Stockholder and appointing the Company as custodian thereunder
(the "Custodian"). Certificates in negotiable form, endorsed in blank
or accompanied by blank stock powers duly executed, with signatures
appropriately guaranteed, representing the Securities to be sold by such
Selling Stockholder hereunder have been deposited with the Custodian
pursuant to the Power-of-Attorney for the purpose of delivery pursuant
to this Agreement. Such Selling Stockholder has all requisite power and
authority to execute, deliver and perform its obligations under the Power-
of-Attorney. The execution and delivery of the Power-of-Attorney have
been duly authorized by all necessary action of such Selling Stockholder;
the Power-of-Attorney has been duly executed and delivered by such Selling
Stockholder and, assuming due authorization, execution and delivery by
the Custodian, is the legal, valid, binding and enforceable instrument
of such Selling Stockholder. Such Selling Stockholder agrees that
each of the Securities represented by the certificates on deposit with
the Custodian is subject to the interests of the Underwriters, the
Company and the other Selling Stockholders hereunder, that the
arrangements made for such custody, the appointment of the Attorney-in-Fact
and the right, power and authority of the Attorney-in-Fact to
execute and deliver this Agreement and to carry out the terms of this
Agreement, are to that extent irrevocable and that the obligations of
such Selling Stockholder hereunder shall not be terminated, except as
provided in this Agreement or the Power-of-Attorney, by any act of
such Selling Stockholder, by operation of law or otherwise, whether by
the death or incapacity of such Selling Stockholder or by the
occurrence of any other event. If any Selling Stockholder should die
or become incapacitated or if any other event should
-14-
occur, before the delivery of the Securities hereunder, the certificates
for the Securities deposited with the Custodian shall be delivered by the
Custodian in accordance with the respective terms and conditions of
this Agreement as if such death, incapacity or other event had not
occurred, regardless of whether or not the Custodian or the Attorney-in-Fact
shall have received notice thereof. Neither the execution,
delivery or performance of the Power-of-Attorney, the consummation of
the transactions therein contemplated nor the compliance with the
terms thereof by such Selling Stockholder will conflict with, or
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, or result in the creation or imposition
of any lien, charge, claim or encumbrance on any property of the
Company or any of its subsidiaries under, any indenture, mortgage,
deed of trust, lease or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder's
property is bound, or any statute, ruling, judgment, decree, order to
regulation of any court or other governmental authority or any
arbitrator applicable to such Selling Stockholder.
(c) Neither the execution and delivery or performance of this
Agreement or the Power of Attorney or the consummation of the
transactions herein or therein contemplated nor the compliance with
the terms hereof or thereof by such Selling Stockholder will conflict
with, or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge, claim or encumbrance on
any property of the Company or any of its subsidiaries under, any
indenture, mortgage, deed of trust, lease or other agreement or
instrument to which such Selling Stockholder is a party or by which
such Selling Stockholder's property is bound, or the constituent
documents of such Selling Stockholder or any statute, ruling,
judgment, decree, order or regulation of any court or other
governmental authority or any arbitrator applicable to such Selling
Stockholder; and no consent, approval, authorization, order,
registration or qualification of or with any governmental authority,
except those as have been
-15-
obtained, those as may be required under state or foreign securities or
Blue Sky laws or by the by-laws and rules of the National Association of
Securities Dealers, Inc. and, if the Registration Statement filed with
respect to the Securities is not effective under the Act as of the time of
execution hereof, those as may be required (and shall be obtained as
provided in this Agreement) under the Act and the Exchange Act;
(d) Such Selling Stockholder will not, during the period of 120
days after the date hereof, except pursuant to this Agreement, offer,
sell, contract to sell or otherwise dispose of any capital stock of
the Company (or securities convertible into, or exchangeable for,
capital stock of the Company), directly or indirectly, without the
prior written consent of Schroder & Co. Inc.;
(e) Such Selling Stockholder has not taken, and will not take,
directly or indirectly, any action designed to cause or result in, or
that has constituted or that might reasonably be expected to
constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities or otherwise;
(f) The sale by such Selling Stockholder of Securities pursuant
hereto is not prompted by any adverse information concerning the
Company or its subsidiaries that is not set forth in the Registration
Statement or the Prospectus;
(g) Such Selling Stockholder is disposing of Securities for its
own account and is not selling such Securities, directly or
indirectly, for the benefit of the Company or the Underwriters. No
part of the proceeds of such sale to be received by such Selling
Stockholder will inure, either directly or indirectly, to the benefit
of the Company;
(h) All information furnished in writing to the Company or the
Underwriters by such Selling Stockholder for use in the preparation of
the Registration Statement and the Prospectus and other documents to
be filed with the National Association of Securities Dealers, Inc. or
state securities or Blue Sky
-16-
authorities is true and correct and does not contain an untrue statement
of material fact nor does it omit to state any material fact required to
be stated therein or necessary to make such information, in the light of
the circumstances under which it was made, not misleading;
(i) Such Selling Stockholder has reviewed the Prospectus and the
Registration Statement, and the information regarding such Selling
Stockholder set forth therein under the caption "Principal and Selling
Stockholders" is complete and accurate;
(j) At the Time of Delivery, all stock transfer or other taxes
(other than income taxes) that are required to be paid in connection
with the sale and transfer of the Securities to be sold by such
Selling Stockholder to the Underwriters hereunder will have been fully
paid or provided for by such Selling Stockholder and all laws imposing
such taxes will have been fully complied with;
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the Underwriters an aggregate of 2,000,000 Firm
Securities, each Selling Stockholder agrees to sell to the Underwriters the
number of Firm Securities set forth on Schedule II opposite the name of such
Selling Stockholder and each of the Underwriters agrees to purchase from the
Company and the Selling Stockholders, at a purchase price of $____________ per
share, the respective aggregate number of Firm Securities determined in the
manner set forth below. The obligation of each Underwriter to the Company and
each of the Selling Stockholders, respectively, shall be to purchase that
portion of the number of shares of Common Stock to be sold by the Company or
such Selling Stockholder pursuant to this Agreement as the number of Firm
Securities set forth opposite the name of such Underwriter on Schedule I bears
to the total number of Firm Securities to be purchased by the Underwriters
pursuant to this Agreement, in each case adjusted by you in order that no
Underwriter shall be obligated to purchase Firm Securities other than in 100
share amounts. In making this Agreement, each Underwriter is contracting
severally and not jointly.
In addition, subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to the Underwriters, as required (for the sole
purpose of covering over-allotments in the sale of the Firm Securities), up to
391,500 Option Securities at the purchase price per share of the Firm Securities
being sold by the Company as stated in the preceding paragraph. The right to
purchase the Option Securities may be exercised by you giving 48 hours prior
written or telephonic notice
-17-
(subsequently confirmed in writing) to the Company of your determination to
purchase all or a portion of the Option Securities. Such notice may be given
at any time within a period of 30 days following the date of this Agreement.
Option Securities shall be purchased severally for the account of each
Underwriter in proportion to the number of Firm Securities set forth opposite
the name of such Underwriter in Schedule I hereto. No Option Securities
shall be delivered to or for the accounts of the Underwriters unless the Firm
Securities shall be simultaneously delivered or shall theretofore have been
delivered as herein provided. The respective purchase obligations of each
Underwriter shall be adjusted by you in order that no Underwriter shall be
obligated to purchase Option Securities other than in 100 share amounts. The
Underwriters may cancel any purchase of Option Securities at any time prior
to the Option Securities Delivery Date (as defined in Section 4 hereof) by
giving written notice of such cancellation to the Company.
3. The Underwriters propose to offer the Securities for sale upon the
terms and conditions set forth in the Prospectus.
4. Certificates in definitive form for the Firm Securities to be purchased
by each Underwriter hereunder shall be delivered by or on behalf of the Company
and the Selling Stockholders to you for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the purchase price therefor at
the election of the Company and the Selling Stockholders by (i) wire transfer or
(ii) certified or official bank check or checks, payable in New York Clearing
House funds, to the order of the Company, for the purchase price of the Firm
Securities being sold by the Company, and to the order of the Attorney-in-Fact
for the purchase price of the Firm Securities being sold by the Selling
Stockholders, at the office of Schroder & Co. Inc., Equitable Center,
787 Seventh Avenue, New York, New York, at 9:30 A.M., New York City time, on
________ __, 1997, or at such other time, date and place as you and the Company
may agree upon in writing, such time and date being herein called the "Time of
Delivery."
Certificates in definitive form for the Option Securities to be purchased
by each Underwriter hereunder shall be delivered by or on behalf of the Company
to you for the account of such Underwriter, against payment by such Underwriter
or on its behalf of the purchase price thereof at the election of the Company
and the Selling Stockholders by (i) wire transfer or (ii) certified or official
bank check or checks, payable in New York Clearing House funds, to the order of
the Company, for the purchase price of the Option Securities, in New York, New
York, at such time and on such date (not earlier than the Time of Delivery nor
later than ten business days after giving of the notice delivered by you to the
Company with reference thereto) and in such denominations and registered in such
names as shall be specified in the notice delivered by you to the Company with
respect to the purchase of such Option Securities. The date and time of such
delivery and payment are herein sometimes referred to as the "Option Securities
Delivery Date." The obligations of the Underwriters shall be subject, in their
discretion, to the condition that there shall be delivered to the Underwriters
on the Option Securities Delivery Date opinions and
-18-
certificates, dated such Option Securities Delivery Date, referring to the
Option Securities, instead of the Firm Securities, but otherwise to the same
effect as those required to be delivered at the Time of Delivery pursuant to
Section 7(d), 7(e), 7(f), 7(g) and 7(j).
Certificates for the Firm Securities and the Option Securities to be
delivered as aforesaid will be in good delivery form, and in such denominations
and registered in such names as you may request not less than 48 hours prior to
the Time of Delivery and the Option Securities Delivery Date, respectively.
Such certificates will be made available for checking and packaging in New York,
New York, at least 24 hours prior to the Time of Delivery and Option Securities
Delivery Date.
5. (a) The Company covenants and agrees with each of the Underwriters:
(i) If the Registration Statement has not become effective, to
file promptly the Final Amendment with the Commission and use its best
efforts to cause the Registration Statement to become effective; if
the Registration Statement has become effective, to file promptly the
Rule 430A Prospectus with the Commission; to make no further amendment
or any supplement to the Registration Statement or Prospectus that
shall be disapproved by you after reasonable notice thereof; to advise
you, promptly after it receives notice thereof of the time when the
Registration Statement, or any amendment thereto, or any amended
Registration Statement has become effective or any supplement to the
Prospectus or any amended Prospectus has been filed, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, of
the suspension of the qualification of the Securities for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and in the event of the
issuance of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or the Prospectus or suspending
any such qualification, to use promptly its best efforts to obtain
withdrawal of such order;
-19-
(ii) Promptly from time to time, to take such action as you may
request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
(iii) To furnish each of the Representatives and counsel for the
Underwriters, without charge, signed copies of the registration
statement originally filed with respect to the Securities and each
amendment thereto (in each case including all exhibits thereto) and to
each other Underwriter, without charge, a conformed copy of such
registration statement and each amendment thereto (in each case
without exhibits thereto) and, so long as a prospectus relating to the
Securities is required to be delivered under the Act, as many copies
of each Preliminary Prospectus, the Prospectus and all amendments or
supplements thereto as you may from time to time reasonably request.
If at any time when the delivery of a prospectus is required to be
delivered under the Act an event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply
with the Act, the Company will forthwith prepare and, subject to the
provisions of Section 5(a)(i) hereof, file with the Commission an
appropriate supplement or amendment thereto, and will furnish to each
Underwriter and to any dealer in securities, without charge, as many
copies as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus or make an appropriate
filing under Section 13, 14 or 15(d) of the Exchange Act that will
correct such statement or omission or effect such
-20-
compliance in accordance with the requirements of Section 10 of the Act;
(iv) To make generally available to its stockholders as soon as
practicable, but in any event not later than 45 days after the close
of the period covered thereby, an earnings statement in form complying
with the provisions of Section 11(a) of the Act (including, at the
option of the Company, Rule 158) covering a period of 12 consecutive
months beginning not later than the first day of the Company's fiscal
quarter next following the Effective Date;
(v) To file promptly all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act
subsequent to the Effective Date and during any period when the
Prospectus is required to be delivered;
(vi) For a period of five years from and after the Effective
Date, to furnish to its stockholders after the end of each fiscal year
an annual report (including a consolidated balance sheet and
statements of income, cash flow and stockholders' equity of the
Company and its subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of the
first three quarters of each fiscal year (beginning with the fiscal
quarter ending after the Effective Date), consolidated summary
financial information of the Company and its subsidiaries for such
quarter in reasonable detail;
(vii) During a period of five years from and after the Effective
Date, to furnish to you copies of all reports or other communications
(financial or other) furnished to its stockholders, and deliver to you
(i) 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 on which any class of securities of the Company is
listed; and (ii) such additional information concerning the business
and financial condition of the Company as you may from time to time
reasonably request;
-21-
(viii) To apply the net proceeds from the sale of the Securities
in the manner set forth in the Prospectus under the caption "Use of
Proceeds";
(ix) That it will not, and will cause its subsidiaries,
officers, directors, employees, agents and affiliates not to, take,
directly or indirectly, any action designed to cause or result in, or
that might reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of any of the Securities;
(x) That prior to the Time of Delivery there will not be any
change in the capital stock or material change in the short-term debt
or long-term debt of the Company or any of its subsidiaries, or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company or any of its subsidiaries, otherwise than
as set forth or contemplated in the Prospectus;
(xi) That it will not, during the period of 120 days after the
date hereof (other than pursuant to this Agreement), offer, sell,
contract to sell or otherwise dispose of any capital stock of the
Company (or securities convertible into, or exchangeable for, capital
stock of the Company), directly or indirectly, without the prior
written consent of Schroder & Co. Inc., except for the issuance of
Option Shares, grants of stock options under the Company's Amended and
Restated 1989 Stock Incentive Plan, issuance of shares of common stock
in connection with the establishment of Middleby Japan Corporation,
pursuant to exercise of warrants that the Prospectus indicates are
outstanding, or pursuant to the terms of convertible or exchangeable
securities of the Company or its subsidiaries outstanding on the date
hereof and described in the Prospectus;
(xii) That it has caused the Securities to be included for
quotation on the Nasdaq National Market System as of the Effective
Date; and
-22-
(xiii) To file with the Commission such reports on Form SR as
may be required pursuant to Rule 463 under the Act.
(b) Each Selling Stockholder, severally and not jointly, covenants and
agrees with each of the Underwriters that:
(i) Such Selling Stockholder will not, during the period of 120
days after the date hereof, except pursuant to this Agreement, offer,
sell, contract to sell or otherwise dispose of any capital stock of
the Company (or securities convertible into, or exchangeable for,
capital stock of the Company), directly or indirectly, without the
prior written consent of Schroder & Co. Inc.;
(ii) Such Selling Stockholder will not, directly or indirectly,
take any action designed to cause or result in, or that has
constituted or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of any of the Securities;
(iii) As soon as any Selling Stockholder is advised thereof,
such Selling Stockholder will advise the Representatives and confirm
such advice in writing, (i) of receipt by such Selling Stockholder or
by any representative or agent of such Selling Stockholder, of any
communication from the Commission relating to the Registration
Statement, the Prospectus or any Preliminary Prospectus, or any notice
or order of the Commission relating to the Company or any of the
Selling Stockholders in connection with the transactions contemplated
by this Agreement and (ii) of the happening of any event that makes or
may make any statement made in the Registration Statement, the
Prospectus or any Preliminary Prospectus untrue or that requires the
making of any change in the Registration Statement, Prospectus or
Preliminary Prospectus, as the case may be, in order to make such
statement, in light of the circumstances in which it was made, not
misleading; and
-23-
(iv) Such Selling Stockholder will deliver to the
Representatives prior to the Time of Delivery a properly completed and
executed United States Treasury Department Form W-9.
6. The Company covenants and agrees with the Underwriters that the Company
will pay or cause to be paid: (i) the fees, disbursements and expenses of
counsel and accountants for the Company and the Selling Stockholders, and all
other expenses, in connection with the preparation, printing and filing of the
Registration Statement and the Prospectus and amendments and supplements thereto
and the furnishing of copies thereof, including charges for mailing, air freight
and delivery and counting and packaging thereof and of any Preliminary
Prospectus and related offering documents to the Underwriters and dealers;
(ii) the cost of printing this Agreement, the Agreement Among Underwriters, the
Selling Agreement, communications with the Underwriters and selling group and
the Preliminary and Supplemental Blue Sky Memoranda and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under securities laws as provided in Section 5(a) hereof,
including filing and registration fees and the fees, disbursements and expenses
of counsel for the Underwriters in connection with such qualification and in
connection with Blue Sky surveys or similar advice with respect to sales;
(iv) the filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (v) all fees and expenses in connection with quotation of the
Securities on the Nasdaq National Market System; and (vi) all other costs and
expenses incident to the performance of their obligations hereunder that are not
otherwise specifically provided for in this Section 6, including the fees of the
Company's Transfer Agent and Registrar, the cost of any stock issue or transfer
taxes on sale of the Securities to the Underwriters, the cost of the Company's
personnel and other internal costs, the cost of printing and engraving the
certificates representing the Securities and all expenses and taxes incident to
the sale and delivery of the Securities to be sold by the Company and the
Selling Stockholders to the Underwriters hereunder.
Each Selling Stockholder will pay any transfer taxes incident to the
transfer to the Underwriters of the Securities being sold by such Selling
Stockholder.
It is understood, however, that, except as provided in this Section,
Section 8 and Section 11 hereof, the Underwriters will pay all their own costs
and expenses, including the fees of their counsel, stock transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters hereunder shall be subject, in
their discretion, to the condition that all representations and warranties and
-24-
other statements of the Company and the Selling Stockholders herein are, at and
as of the Time of Delivery, true and correct, the condition that the Company and
the Selling Stockholders shall have performed all its and their obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Registration Statement shall have become effective, and you shall
have received notice thereof not later than 10:00 P.M., New York City time, on
the date of execution of this Agreement, or at such other time as you and the
Company may agree; if required, the Prospectus shall have been filed with the
Commission in the manner and within the time period required by Rule 424(b); no
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction.
(b) All corporate proceedings and related legal and other matters in
connection with the organization of the Company and the registration,
authorization, issue, sale and delivery of the Securities shall have been
reasonably satisfactory to Thompson Hine & Flory LLP, counsel to the
Underwriters, and Thompson Hine & Flory LLP shall have been timely furnished
with such papers and information as they may reasonably have requested to enable
them to pass upon the matters referred to in this subsection.
(c) You shall not have advised the Company or any Selling Stockholder that
the Registration Statement or Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact or omits to state a fact that in
your judgment is in either case material and in the case of an omission is
required to be stated therein or is necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(d) D'Ancona & Pflaum, counsel to the Company, shall have furnished to you
its written opinion, dated the Time of Delivery, in form and substance
satisfactory to you and to Thompson Hine & Flory LLP, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and to conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction identified in such opinion, which, to such
-25-
counsel's knowledge, are the only jurisdictions where the nature of
the property owned or leased by it, or the nature of the business
conducted by it, makes such qualification necessary (except where the
failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the business affairs or
prospects of the Company and its subsidiaries, taken as a whole);
(ii) Based solely upon certificates of public officials, each of
the Company's subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and to conduct its business as described
in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction identified in such opinion,
which, to such counsel's knowledge, are the only jurisdictions where
the nature of the property owned or leased by it, or the nature of the
business conducted by it, makes such qualification necessary (except
where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the business
affairs or prospects of the Company and its subsidiaries, taken as a
whole);
(iii) All the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and are validly
issued and outstanding, are fully paid and non-assessable and, except
as otherwise set forth in the Prospectus, are owned by the Company of
record and, to the best knowledge of such counsel, (A) beneficially
and (B) free and clear of all liens, encumbrances, equities, security
interests or claims of any nature whatsoever; and neither the Company
nor any of its subsidiaries has granted any outstanding options,
warrants or commitments with respect to any shares of its capital
stock, whether issued or unissued, except as otherwise described in
the Prospectus;
(iv) The Company has an authorized capitalization as set forth
in the Registration Statement, and all the issued shares of capital
stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable, are free of any preemptive
rights, and were issued and sold in compliance with all applicable
federal and state securities laws; except as described in the
-26-
Prospectus, to the knowledge of such counsel, there are no outstanding
options, warrants or other rights calling for the issuance of, and
there are no commitments, plans or arrangements to issue, any shares
of capital stock of the Company; the Securities being sold by the
Company have been duly and validly authorized and, when duly
countersigned by the Company's Transfer Agent and Registrar and
issued, delivered and paid for in accordance with the provisions of
the Registration Statement and this Agreement, will be duly and
validly issued, fully paid and non-assessable; the Securities conform
to the description thereof in the Prospectus; the Securities to be
sold by the Company have been duly authorized for quotation on the
Nasdaq National Market System, as of the Effective Date, and the
Securities to be sold by the Selling Stockholders are quoted on the
Nasdaq National Market System; and the certificates for the Securities
are in valid and legal form;
(v) To the best of such counsel's knowledge, except as set forth
in the Prospectus, there are no legal or governmental proceedings
pending or threatened to which the Company or any of its subsidiaries
or any of their respective officers or directors is a party or of
which any property of the Company or any of its subsidiaries is the
subject that, if resolved against the Company or any of its
subsidiaries or any of their respective officers or directors,
individually or in the aggregate, is of a character required to be
disclosed in the Prospectus that has not been properly disclosed
therein;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement
of the Company enforceable in accordance with its terms, except as
enforceability of the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors
rights generally and except as enforceability of those provisions
relating to indemnity may be limited by the federal securities laws
and principles of public policy;
-27-
(vii) The Company has full corporate power and authority to
execute, deliver and perform this Agreement, and the execution,
delivery and performance of this Agreement, the consummation of the
transactions herein contemplated and the issue and sale of the
Securities and the compliance by the Company with all the provisions
of this Agreement will not conflict with, or result in a breach of any
of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge, claim or
encumbrance upon, any of the property or assets of the Company or any
of its subsidiaries pursuant to, the terms of any indenture, mortgage,
deed of trust, loan agreement or other material agreement or
instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation or the By-Laws (or similar corporate constituent
documents), in each case as amended, of the Company or any of its
subsidiaries, or any statute 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 subsidiaries or any of
their properties;
(viii) No consent, approval, authorization, order, registration
or qualification of or with any court or any regulatory authority or
other governmental body is required for the issue and sale of the
Securities or the consummation of the other transactions contemplated
by this Agreement, except those as have been obtained under the Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters;
(ix) Neither the Company nor any of its subsidiaries is currently
in violation of its Certificate of Incorporation or By-Laws (or
similar corporate constituent documents) or, to the best of such
counsel's knowledge, in default under, any indenture, mortgage, deed
-28-
of trust, lease, bank loan or credit agreement or any other agreement
or instrument of which such counsel has knowledge to which the Company
or any of its subsidiaries is a party or by which any of them or any
of their property may be bound or affected (in any respect that is
material in light of the financial condition of the Company and its
subsidiaries, taken as a whole);
(x) There are no preemptive or other rights to subscribe for or
to purchase, nor any restriction upon the voting or transfer of, any
Securities pursuant to the Company's Certificate of Incorporation or
By-Laws, in each case as amended to the date hereof, or, to the best
of such counsel's knowledge, any agreement or other instrument, except
as described in the Prospectus; and, except for William F. Whitman,
Jr., no holders of securities of the Company have rights to the
registration thereof under the Registration Statement or, if any such
holders have such rights, such holders have waived such rights;
(xi) To the extent summarized therein, all contracts and
agreements summarized in the Registration Statement and the Prospectus
are fairly summarized therein, conform in all material respects to the
descriptions thereof contained therein, and, to the extent such
contracts or agreements or any other material agreements are required
under the Act or the rules and regulations thereunder to be filed or
incorporated by reference therein, as exhibits to the Registration
Statement, they are so filed or incorporated by reference; and such
counsel does not know of any contracts or other documents required to
be summarized or disclosed in the Prospectus or to be so filed or
incorporated by reference as an exhibit to the Registration statement,
which have not been so summarized or disclosed, or so filed or
incorporated by reference;
(xii) All descriptions in the Prospectus of statutes,
regulations or legal or governmental proceedings are fair summaries
-29-
thereof and fairly present the information required to be shown with
respect to such matters;
(xiii) Nothing has come to such counsel's attention to give such
counsel reason to believe that any of the representations and
warranties of the Company contained in this Agreement or in any
certificate or document contemplated under this Agreement to be
delivered are not true or correct or that any of the covenants and
agreements herein contained to be performed on the part of the Company
or any of the conditions herein contained, or set forth in the
Registration Statement and the Prospectus, to be fulfilled or complied
with by the Company have not been or will not be duly and timely
performed, fulfilled or complied with;
(xiv) The Registration Statement has become effective under the
Act, the Prospectus has been filed in accordance with Rule 424(b) of
the rules and regulations of the Commission under the Act, including
the applicable time periods set forth therein, or such filing is not
required and, to the best knowledge of such counsel, 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 threatened under the Act, and the Registration Statement,
the Prospectus and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements of the Act and the rules and
regulations thereunder; and the documents incorporated by reference in
the Prospectus comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder; it being understood with respect to all of the
foregoing that such counsel need express no opinion as to the
financial statements and schedules or other financial data contained
or incorporated by reference in the Registration Statement or the
Prospectus; and
(xv) The conditions for use of Form S-2 set forth in the General
Instructions thereto have been satisfied.
-30-
Such counsel shall also state that nothing has come to such counsel's
attention that would lead such counsel to believe that either the Registration
Statement or any amendment or supplement thereto, at the time such Registration
Statement or amendment or supplement became effective and as of the Time of
Delivery, or the Prospectus or any amendment or supplement thereto, as of its
date and as of the Time of Delivery, contains or contained any untrue statement
of material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In rendering its opinion set forth in Section 7(d) above, such counsel may
rely, to the extent deemed advisable by such counsel, (a) as to factual matters,
upon certificates of public officials and officers of the Company, and (b) as to
the laws of any jurisdiction other than the United States and jurisdictions in
which they are admitted, on opinions of counsel (PROVIDED, HOWEVER, that you
shall have received a copy of each of such opinions which shall be dated the
Time of Delivery, addressed to you or otherwise authorizing you to rely thereon,
and D'Ancona & Pflaum in its opinion to you delivered pursuant to this
subsection, shall state that such counsel are satisfactory to them and that
D'Ancona & Pflaum has no reason to believe that the Underwriters and they are
not justified to so rely);
(e) With respect to each of the Selling Stockholders, D'Ancona & Pflaum,
counsel for the Selling Stockholders shall have furnished to you its written
opinion, dated the Time of Delivery, in form and substance satisfactory to you
and to Thompson Hine & Flory LLP to the effect that:
(i) each Selling Stockholder has full legal right, power and
authority to enter into this Agreement and the Power-of-Attorney and
to sell, transfer and deliver the Securities being sold by such
Selling Stockholder hereunder in the manner provided in this Agreement
and to perform its obligations under the Power-of-Attorney; the
execution and delivery of this Agreement and the Power-of-Attorney
have been duly authorized by all necessary action of each Selling
Stockholder; this Agreement and the Power-of-Attorney have been duly
executed and delivered by each Selling Stockholder; assuming due
authorization, execution and delivery by the Custodian, the
Power-of-Attorney is the legal, valid and binding agreement of each
Selling Stockholder, enforceable in accordance with its terms, except as
enforcement of the same may be limited by bankruptcy, insolvency,
-31-
reorganization, moratorium or other similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles
of equity (regardless of whether enforcement is sought in a proceeding in
equity or at law);
(ii) upon delivery of and payment for the Securities being sold
by each Selling Stockholder, the Underwriters will receive good and
valid title to such Securities, free and clear of all liens,
encumbrances, equities, security interests, claims or other defects;
(iii) the sale of the Securities to the Underwriters by the
Selling Stockholders pursuant to this Agreement, the compliance by the
Selling Stockholders with the other provisions of this Agreement and
the Power-of-Attorney and the consummation of the other transactions
herein contemplated do not (i) conflict with, or result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge, claim or encumbrance on any property of any Selling
Stockholder under, any indenture, mortgage, deed of trust, lease or
other agreement or instrument to which any Selling Stockholder is a
party or by which any Selling Stockholder or any of the Selling
Stockholders' property is bound or any statute or any judgment,
decree, order, rule or regulation of any court or other governmental
authority or any arbitrator applicable to any Selling Stockholder, or
(ii) require the consent, approval, authorization, order, registration
or qualification of or with any governmental authority, except such as
have been obtained and such as may be required under state or foreign
securities or Blue Sky laws; and
(iv) there are no transfer or other taxes (other than income
taxes) known to such counsel payable in connection with the sale and
delivery of the Securities by the Selling Stockholders to the
Underwriters or all such taxes have been fully paid in connection with
such sale and delivery.
Such counsel shall also state that nothing has come to such counsel's
attention that would lead such counsel to believe that either the Registration
Statement or any amendment or supplement thereto, at the time such Registration
Statement or amendment or supplement became effective and as of the Time of
-32-
Delivery, or the Prospectus or any amendment or supplement thereto, as of its
date and as of the Time of Delivery, contains or contained any untrue statement
of material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In rendering its opinion set forth in Section 7(e) above, such counsel may
rely, to the extent deemed advisable by such counsel, as to factual matters,
upon certificates of public officials and the Selling Stockholders.
(f) Thompson Hine & Flory LLP, counsel to the Underwriters, shall have
furnished to you its written opinion or opinions, dated the Time of Delivery, in
form and substance satisfactory to you, with respect to the incorporation of the
Company, the validity of the Securities, the Registration Statement, the
Prospectus and other related matters as you may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters.
(g) With respect to the letter of Arthur Andersen LLP delivered to you
concurrently with the execution of this Agreement (the "initial letter"), the
Company shall have furnished to you a letter (as used in this paragraph, the
"bring-down letter") of Arthur Andersen LLP, addressed to you and dated the Time
of Delivery (i) confirming that they are independent public accountants with
respect to the Company and its subsidiaries within the meaning of the Act and
the applicable rules and regulations thereunder, (ii) stating, as of the date of
the bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five days
prior to the date of the bring-down letter), the conclusions and findings of
Arthur Andersen LLP with respect to the financial information and other matters
covered by the initial letter, and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(h) Neither the Company nor any of its subsidiaries shall have sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any loss of or material dispute
with any of its ten largest customers or its ten largest suppliers of products
or services (measured by dollar volume during the Company's most recent fiscal
year) or any loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute, work stoppage or work slowdown or court or governmental action, order
or decree; and since the respective dates as of which information is given in
the Prospectus, there shall not have been any change in the capital stock (other
than shares issued pursuant to the exercise of Option Shares, pursuant to the
exercise of warrants that the Prospectus indicates are outstanding, or pursuant
to the terms of convertible or exchangeable securities of the Company or its
subsidiaries outstanding on the date hereof and described in the Prospectus) or
short-term debt or long-term debt of the Company or any of its subsidiaries that
is described in the Prospectus nor any change or any development involving a
prospective change, in or affecting the general affairs, management, financial
-33-
position, stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case is in your judgment so material and adverse as
to make it impracticable or inadvisable to proceed with the public offering or
the delivery of the Securities on the terms and in the manner contemplated in
the Prospectus.
(i) Between the date hereof and the Time of Delivery, there shall have
been no declaration of war by the Government of the United States; at the Time
of Delivery, there shall not have occurred any material adverse change in the
financial or securities markets in the United States or in political, financial
or economic conditions in the United States or any outbreak or material
escalation of hostilities or other calamity or crisis, the effect of which is
such as to make it, in the judgment of the Representatives, impracticable to
market the Securities or to enforce contracts for the resale of Securities and
no event shall have occurred resulting in (i) trading in securities generally on
the New York Stock Exchange or in the Common Stock on the principal securities
exchange or market in which the Common Stock is listed or quoted being suspended
or limited or minimum or maximum prices being generally established on such
exchange or market, or (ii) additional material governmental restrictions, not
in force on the date of this Agreement, being imposed upon trading in securities
generally by the New York Stock Exchange or in the Common Stock on the principal
securities exchange or market in which the Common Stock is listed or quoted or
by order of the Commission or any court or other governmental authority, or
(iii) a general banking moratorium being declared by either federal or New York
authorities.
(j) The Company and the Selling Stockholders shall have furnished or
caused to be furnished to you at the Time of Delivery certificates signed by the
chief executive officer and the chief financial officer, on behalf of the
Company, and by each Selling Stockholder or the Attorney-in-Fact on behalf of
each Selling Stockholder, satisfactory to you as to such matters as you may
reasonably request and as to (i) the accuracy of its and their respective
representations and warranties herein at and as of the Time of Delivery and (ii)
the performance by the Company and each Selling Stockholder of all their
respective obligations hereunder to be performed at or prior to the Time of
Delivery; the Company and the Selling Stockholders shall have furnished or
caused to be furnished to you at the Time of Delivery certificates signed by the
chief executive officer and the chief financial officer, on behalf of the
Company, and by each Selling Stockholder as to (i) the fact that they have
carefully examined the Registration Statement and Prospectus and, (a) as of the
Effective Date, the statements contained or incorporated by reference in the
Registration Statement and the Prospectus were true and correct and neither the
Registration Statement nor the Prospectus omitted to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading and
-34-
(b) since the Effective Date, no event has occurred that is required by the Act
or the rules and regulations of the Commission thereunder to be set forth in an
amendment of, or a supplement to, the Prospectus that has not been set forth in
such an amendment or supplement; and (ii) the matters set forth in subsection
(a) of this Section 7.
(k) Each director, executive officer, Selling Stockholder and five percent
stockholder of the Company shall have delivered to you an agreement not to
offer, sell, contract to sell or otherwise dispose of any shares of capital
stock of the Company (or securities convertible into, or exchangeable for,
capital stock of the Company), directly or indirectly, for a period of 120 days
after the date of this Agreement, without the prior written consent of Schroder
& Co. Inc.
(l) The Company shall have delivered to you evidence that the Securities
to be sold by the Company have been authorized for quotation on the Nasdaq
National Market System as of the Effective Date.
8. (a) The Company and each Principal Selling Stockholder, jointly and
severally, will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of a material fact
contained or incorporated by reference in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or in any Blue Sky application or other document executed by the
Company specifically for that purpose or based upon information furnished by the
Company filed in any state or other jurisdiction in order to qualify any or all
of the Securities under the securities laws thereof or filed with the Commission
or any securities association or securities exchange (each, an "Application"),
or the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements made or incorporated by
reference therein, in the light of the circumstances under which they were made,
not misleading, or (ii) any untrue statement or alleged untrue statement made by
the Company and the Principal Selling Stockholders in Section 1A of this
Agreement, or (iii) the employment by the Company of any device, scheme or
artifice to defraud, or the engaging by the Company in any act, practice or
course of business that operates or would operate as a fraud or deceit, or any
conspiracy with respect thereto, in which the Company shall participate, in
connection with the issuance and sale of any of the Securities, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating, preparing to defend,
defending or appearing as a third-party witness in connection with any such
action or claim; PROVIDED, HOWEVER, that the Company and the Principal Selling
Stockholders shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
-35-
statement or alleged untrue statement or omission or alleged omission relating
to an Underwriter made in any Preliminary Prospectus, the Registration
Statement, the Prospectus or such amendment or supplement or any Application in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through you expressly for use therein.
(b) Each Selling Stockholder, severally and not jointly, will indemnify
and hold harmless each Underwriter, the Company and the other Selling
Stockholders against any losses, claims, damages or liabilities to which such
Underwriter, the Company or such Selling Stockholder may become subject under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained or
incorporated by reference in the Preliminary Prospectus, the Registration
Statement, or the Prospectus, or any amendment or supplement thereto, or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements made or incorporated by
reference therein, in the light of the circumstances under which they were made,
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in the Preliminary Prospectus, the Registration Statement, the Prospectus
or such amendment or supplement in reliance upon and in conformity with
information furnished to such Underwriter or the Company by such Selling
Stockholder expressly for use therein, or (ii) any untrue statement or alleged
untrue statement made by such Selling Stockholder in Section 1B of this
Agreement, and will reimburse such Underwriter, the Company or such Selling
Stockholder for any legal or other expenses reasonably incurred by such
Underwriter, the Company or such Selling Stockholder in connection with
investigating, preparing to defend, defending or appearing as a third-party
witness in connection with any such action or claim.
(c) In addition to any obligations of the Company and each of the Selling
Stockholders under Section 8(a) and 8(b), the Company and each of the Selling
Stockholders agree that they shall perform their indemnification obligations
under Section 8(a) and Section 8(b) (as modified by the last paragraph of this
Section 8(c)) with respect to counsel fees and expenses and other expenses
reasonably incurred by making payments within 45 days to the Underwriter in the
amount of the statements of the Underwriter's counsel or other statements that
shall be forwarded by the Underwriter, and that it shall make such payments
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the obligation to reimburse the Underwriters for such expenses
and the possibility that such payments might later be held to have been improper
by a court until such time as a court orders the return of such payments.
The indemnity agreement in Section 8(a) and Section 8(b) shall be in
addition to any liability that the Company or any of the Selling Stockholders
may otherwise have and shall extend upon the same terms and conditions to each
person, if any, who controls any Underwriter within the meaning of the Act or
the Exchange Act.
-36-
(d) Each Underwriter will indemnify and hold harmless the Company and the
Selling Stockholders against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or any Application, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, the
Registration Statement, the Prospectus or such amendment or supplement or any
Application in reliance upon and in conformity with written information
furnished to the Company or such Selling Stockholder by such Underwriter
relating to such Underwriter through you expressly for use therein, and will
reimburse the Company or such Selling Stockholder for any legal or other
expenses reasonably incurred by the Company or such Selling Stockholder in
connection with investigating or defending any such action or claim.
The indemnity agreement in this Section 8(d) shall be in addition to any
liability that the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company
or of any Selling Stockholder and to each person, if any, who controls the
Company or any Selling Stockholder within the meaning of the Act or the Exchange
Act.
(e) Promptly after receipt by an indemnified party under Section 8(a),
8(b) or 8(d) of notice of the commencement of any action (including any
governmental investigation), such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability that it may have to any indemnified party under Section 8(a), 8(b) or
8(d) except to the extent it was unaware of such action and has been prejudiced
in any material respect by such failure or from any liability that it may have
to any indemnified party otherwise than under such Section 8(a), 8(b) or 8(d).
In case any such action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. If, however, (i) the indemnifying party has authorized
-37-
the employment of counsel for the indemnified party at the expense of the
indemnifying party or (ii) an indemnified party shall have reasonably concluded
that representation of such indemnified party and the indemnifying party by the
same counsel would be inappropriate under applicable standards of professional
conduct due to actual or potential differing interests between them and the
indemnified party so notifies the indemnifying party, then the indemnified party
shall be entitled to employ counsel different than counsel for the indemnifying
party at the expense of the indemnifying party, and the indemnifying party shall
not have the right to assume the defense of such indemnified party. In no event
shall the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to local counsel) for all indemnified parties in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same set of allegations or circumstances. The
counsel with respect to which fees and expenses shall be so reimbursed shall be
designated in writing by Schroder & Co. Inc. in the case of parties indemnified
pursuant to Section 8(a) and Section 8(b) and by the Company in the case of
parties indemnified pursuant to Section 8(d).
If at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel as
contemplated by Section 8(c), the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party, without the prior
written consent of the indemnified party, shall effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(f) In order to provide for just and equitable contribution under the Act
in any case in which (i) any Underwriter (or any person who controls any
Underwriter within the meaning of the Act or the Exchange Act) makes claim for
indemnification pursuant to Section 8(a) or Section 8(b) hereof, but is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that Section 8(a) or Section 8(b) provides for
indemnification in such case or (ii) contribution under the Act may be required
-38-
on the part of any Underwriter or any such controlling person in circumstances
for which indemnification is provided under Section 8(d), then, and in each such
case, each indemnifying party shall contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject as an indemnifying party
hereunder (after contribution from others) in such proportion as is appropriate
to reflect the relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other from the offering
of the Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under Section 8(e) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Selling
Stockholders on the one hand and the Underwriters on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Securities purchased under this Agreement (before deducting expenses)
received by the Company and the Selling Stockholders bear to the total
underwriting discounts and commissions received by the Underwriters with respect
to the Securities purchased under this Agreement, 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 Selling
Stockholders on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, each of the Selling
Stockholders and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this Section 8(f) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to above in this Section 8(f). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
Section 8(f) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 8(f),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of a fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this Section 8(f) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(g) Promptly after receipt by any party to this Agreement of notice of the
commencement of any action, suit or proceeding, such party will, if a claim for
contribution in respect thereof is to be made against another party (the
"contributing party"), notify the contributing party of the commencement
-39-
thereof; but the omission so to notify the contributing party will not relieve
it from any liability that it may have to any other party for contribution under
the Act except to the extent it was unaware of such action and has been
prejudiced in any material respect by such failure or from any liability that it
may have to any other party other than for contribution under the Act. In case
any such action, suit or proceeding is brought against any party, and such party
notifies a contributing party of the commencement thereof, the contributing
party will be entitled to participate therein with the notifying party and any
other contributing party similarly notified.
9. (a) If any Underwriter shall default in its obligation to purchase the
Firm Securities that it has agreed to purchase hereunder, you may in your
discretion arrange for you or another party or other parties to purchase such
Firm Securities on the terms contained herein. If the aggregate number of Firm
Securities as to which Underwriters default is more than one-eleventh of the
aggregate number of all the Firm Securities and within 36 hours after such
default by any Underwriter you do not arrange for the purchase of such Firm
Securities, then the Company and the Selling Stockholders shall be entitled to a
further period of 36 hours within which to procure another party or other
parties satisfactory to you to purchase such Firm Securities on such terms. In
the event that, within the respective prescribed periods, you notify the Company
and the Selling Stockholders that you have so arranged for the purchase of such
Firm Securities, or the Company and the Selling Stockholders notify you that
they have so arranged for the purchase of such Firm Securities, you or the
Company shall have the right to postpone the Time of Delivery for a period of
not more than seven days, in order to 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 to file promptly any
amendments to the Registration Statement or the Prospectus that in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Firm Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Securities of such defaulting Underwriter or Underwriters by you or the
Company and the Selling Stockholders or both as provided in subsection (a)
above, the aggregate number of such Firm Securities that remain unpurchased does
not exceed one-eleventh of the aggregate number of all the Firm Securities, then
the Company and the Selling Stockholders shall have the right to require each
non-defaulting Underwriter to purchase the number of the Firm Securities that
such Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Firm Securities that such Underwriter agreed to purchase hereunder) of the
Firm Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing shall relieve a defaulting
Underwriter from liability for its default.
-40-
(c) If, after giving effect to any arrangements for the purchase of the
Firm Securities of a defaulting Underwriter or Underwriters by you or the
Company and the Selling Stockholders as provided in subsection (a) above, the
aggregate number of such Firm Securities which remain unpurchased exceeds
one-eleventh of the aggregate number of all the Firm Securities, or if the
Company and the Selling Stockholders shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase
Firm Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate without liability on the part of any
non-defaulting Underwriter, the Company or any Selling Stockholder, except
for the expenses to be borne by the Company and the Selling Stockholders and
the Underwriters as provided in Section 6 hereof and the indemnity agreement
in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, each of the Selling Stockholders and the
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or an officer or director or controlling person of
the Company, or any of the Selling Stockholders, or any controlling person of
any of the Selling Stockholders, and shall survive delivery of and payment for
the Securities.
11. This Agreement shall become effective (a) if the Registration
Statement has not heretofore become effective, at the earlier of 12:00 Noon, New
York City time, on the first full business day after the Registration Statement
becomes effective, or at such time after the Registration Statement becomes
effective as you may authorize the sale of the Securities to the public by
Underwriters or other securities dealers, or (b) if the Registration Statement
has heretofore become effective, at the earlier of 24 hours after the filing of
the Prospectus with the Commission or at such time as you may authorize the sale
of the Securities to the public by Underwriters or securities dealers, unless,
prior to any such time you shall have received notice from the Company that it
elects that this Agreement shall not become effective, or you, or through you
such of the Underwriters as have agreed to purchase in the aggregate fifty
percent or more of the Firm Securities hereunder, shall have given notice to the
Company that you or such Underwriters elect that this Agreement shall not become
effective; PROVIDED, HOWEVER, that the provisions of this Section and Section 6
and Section 8 hereof shall at all times be effective.
If this Agreement shall be terminated pursuant to Section 9 hereof, or if
this Agreement, by election of you or the Underwriters, shall not become
effective pursuant to the provisions of this Section, the Company and the
Selling Stockholders shall not then be under any liability to any Underwriter
except as provided in Section 6 and Section 8 hereof, but if this Agreement
becomes effective and is not so terminated but the Securities are not delivered
by or on behalf of the Company or any of the Selling Stockholders as provided
-41-
herein because the Company or any of the Selling Stockholders has been unable
for any reason beyond its control and not due to any default by it to comply
with the terms and conditions hereof, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Securities, but the Company and the Selling Stockholders shall then be under no
further liability to any Underwriter except as provided in Section 6 and
Section 8 hereof.
12. The statements set forth in the last paragraph on the front cover page
of the Preliminary Prospectus or Prospectus, the paragraph on the inside front
cover of the Preliminary Prospectus or Prospectus containing language relating
to stabilization and the second and last paragraphs under the caption
"Underwriting" in the Preliminary Prospectus or Prospectus constitute the only
information furnished by any Underwriter through the Representatives to the
Company for purposes of Sections 1A(b), 1A(c) and 8 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Schroder & Co. Inc. on behalf of you as the
Representatives, and in all dealings with the Selling Stockholders hereunder,
you and the Company shall be entitled to act and rely upon any statement,
request, notice or agreement furnished in writing by or on behalf of such
Selling Stockholder or made or given by the Attorney-in-Fact for such Selling
Stockholder.
All statements, requests, notices and agreements hereunder, unless
otherwise specified in this Agreement, shall be in writing and, if to the
Underwriters, shall be delivered or sent by mail, telex or facsimile
transmission (subsequently confirmed by delivery or by letter sent by mail) to
you as the Representatives in care of Schroder & Co. Inc., Equitable Center, 787
Seventh Avenue, New York, New York 10019, Attention: Syndicate Department; and
if to the Company or the Selling Stockholders, shall be delivered or sent by
letter sent by mail, telex or facsimile transmission (subsequently confirmed by
delivery or by letter sent by mail) to the address of the Company set forth in
the Registration Statement, Attention: _______________; PROVIDED, HOWEVER, that
any notice to any Underwriter pursuant to Section 8(d) hereof shall be delivered
or sent by mail, telex or facsimile transmission (subsequently confirmed by
delivery or by letter sent by mail) to such Underwriter at its address set forth
in its Underwriters' Questionnaire, or telex constituting such Questionnaire,
which address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect at the time of
receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and each of the Selling Stockholders and, to
the extent provided in Section 8 and Section 10 hereof, the officers and
-42-
directors of the Company and each person who controls the Company, any Selling
Stockholder or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
16. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES
THEREOF.
17. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument. If the foregoing is in accordance with your understanding, please
sign and return to us two counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters, the
Company and each of the Selling Stockholders. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement Among Underwriters, manually or
facsimile executed counterparts of which, to the extent practicable and upon
request, shall be submitted to the Company for examination, but without warranty
on your part as to the authority of the signers thereof.
Very truly yours,
THE MIDDLEBY CORPORATION
By: ___________________________
Name:
Title:
SELLING STOCKHOLDERS
By: ____________________________
As Attorney-in-Fact for each of
the Selling Stockholders listed in
Schedule II
-43-
Accepted as of the date hereof:
SCHRODER & CO. INC.
BREAN MURRAY & CO., INC.
as Representatives of the several Underwriters
By: SCHRODER & CO. INC.
By: ____________________________________
Managing Director
-44-
SCHEDULE I
UNDERWRITER NUMBER OF FIRM SECURITIES
----------- --------------------------
Schroder & Co. Inc.
Brean Murray & Co., Inc.
Total
-----------
2,610,000
-----------
-----------
SCHEDULE II
NUMBER OF FIRM
SELLING STOCKHOLDER SECURITIES TO BE SOLD
------------------- ---------------------
William F. Whitman, Jr. 300,000
David P. Riley 210,000
Laura B.Whitman 100,000
Total
-------
610,000
-------
-------