Draft 10/24/96
PERIPHONICS CORPORATION
1,100,000 Shares Common Stock1
UNDERWRITING AGREEMENT
_________, 199_
William Blair & Company, L.L.C.
Dain Bosworth Incorporated
As Representatives of the Several
Underwriters Named in Schedule A
222 West Adams Street
Chicago, Illinois 60606
Ladies and Gentlemen:
SECTION 1. Introductory. Periphonics Corporation ("Company"), a
Delaware corporation, has an authorized capital stock consisting of 1,000,000
shares, $.01 par value, of Preferred Stock ("Preferred Stock"), none of which
were outstanding as of______________, 1996, and 15,000,000 shares, $.01 par
value, of Common Stock ("Common Stock"), of which ___________ shares were
outstanding as of such date. Certain stockholders of the Company, acting
severally and not jointly (collectively referred to as the "Selling
Stockholders" and named in Schedule B) propose to sell 1,100,000 shares of the
Company's issued and outstanding Common Stock hereinafter refereed to as the
"Firm Shares" to the several underwriters named in Schedule A as it may be
amended by the Pricing Agreement hereinafter defined ("Underwriters"), who are
acting severally and not jointly. In addition, the Selling Stockholders propose
to grant to the Underwriters an option to purchase up to 165,000 additional
shares of Common Stock ("Option Shares") as provided in Section 5 hereof. The
Firm Shares and, to the extent such option is exercised, the Option Shares are
hereinafter collectively referred to as the "Shares."
You have advised the Selling Stockholders that the Underwriters propose
to make a public offering of their respective portions of the Shares as soon as
you deem advisable after the registration statement hereinafter referred to
becomes effective, if it has not yet become effective, and the Pricing Agreement
hereinafter defined has been executed and delivered.
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1 Plus an option to acquire up to 165,000 additional shares to
cover overallotments.
Prior to the purchase and public offering of the Shares by the several
Underwriters, the Company, the Selling Stockholders and the Representatives,
acting on behalf of the several Underwriters, shall enter into an agreement
substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication between the Company, the Selling Stockholders and the
Representatives and shall specify such applicable information as is indicated in
Exhibit A hereto. The offering of the Shares will be governed by this Agreement,
as supplemented by the Pricing Agreement. From and after the date of the
execution and delivery of the Pricing Agreement, this Agreement shall be deemed
to incorporate the Pricing Agreement.
The Company and each of the Selling Stockholders hereby confirm their
agreements with the Underwriters as follows:
SECTION 2. Representations and Warranties of the Company. The Company
represents and warrants to the several Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-______)
and a related preliminary prospectus with respect to the Shares have been
prepared and filed with the Securities and Exchange Commission ("Commission") by
the Company in conformity with the requirements of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "1933 Act;" all references herein to specific rules are rules
promulgated under the 1933 Act); and the Company has so prepared and has filed
such amendments thereto, if any, and such amended preliminary prospectuses as
may have been required to the date hereof. If the Company has elected not to
rely upon Rule 430A, the Company has prepared and will promptly file an
amendment to the registration statement and an amended prospectus. If the
Company has elected to rely upon Rule 430A, it will prepare and file either (i)
a prospectus pursuant to Rule 424(b) that discloses the information previously
omitted from the prospectus in reliance upon Rule 430A or (ii) a term sheet or
abbreviated term sheet (the "Term Sheet") as described in and pursuant to Rules
434 and 424(b) that supplements the preliminary prospectus included in the
Registration Statement at the time it becomes effective omitting information in
reliance upon Rule 430A (the "Preliminary Prospectus"). There have been or will
promptly be delivered to you three signed copies of such registration statement
and amendments, together with three copies of all documents incorporated by
reference therein, three copies of each exhibit filed therewith, and conformed
copies of such registration statement and amendments (but without exhibits) and
of the related preliminary prospectus or prospectuses and final forms of
prospectus or the Term Sheet and Preliminary Prospectus for each of the
Underwriters each to be, to the extent applicable, identical to the
electronically transmitted copies filed with the Commission pursuant to the
Commission's Electronic Data Gathering Analysis and Retrieval System ("EDGAR"),
except to the extent permitted by Regulation S-T.
The registration statement and prospectus as amended on file with the
Commission at the time the registration statement became or becomes effective,
including (i) the information deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430A(b) and (ii) a registration
statement, if any, filed pursuant to Rule 462(b) relating to the Shares, if
applicable, are hereinafter called the "Registration Statement" and the
"Prospectus," respectively, except that if the prospectus filed by the Company
pursuant to Rule 424(b) differs from the prospectus on file at the time the
Registration Statement became or becomes effective, the term "Prospectus" shall
refer to the Rule 424(b) prospectus from and after the time it is filed with the
Commission or transmitted to the Commission for filing. For purpose of this
Agreement, all references to the Registration Statement and the Prospectus, or
any amendment or supplement to the foregoing shall be deemed to include the
respective copies filed with the Commission pursuant to EDGAR. Any reference
herein to any preliminary prospectus or the Prospectus shall be deemed to
include the documents incorporated by reference therein pursuant to Form S-3
under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder(hereinafter collectively referred to as
the "Exchange Act.") ("Incorporated Document"), as of the date of such
preliminary prospectus or Prospectus, as the case may be. Any document filed by
the Company under the Exchange Act after the effective date of the Registration
Statement or the date of the Prospectus and incorporated by reference in the
Prospectus shall be deemed to be included in the Registration Statement and the
Prospectus as of the date of such filing.
The Incorporated Documents heretofore filed, when they were filed with
the Commission, conformed in all material respects to the requirement of the
Exchange Act 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 not misleading; and any further
Incorporated Documents so filed will, when they are filed, conform in all
material respects with the requirements of the Exchange Act and none of such
documents will contain an untrue statement of a material fact or will omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(b) The Commission has not issued any order preventing or suspending
the use of any preliminary prospectus, and each preliminary prospectus has
conformed in all material respects with the requirements of the 1933 Act and, as
of its date, has not included any untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein not
misleading; and when the Registration Statement became or becomes effective, and
at all times subsequent thereto, up to the First Closing Date or the Second
Closing Date hereinafter defined, as the case may be, the Registration
Statement, including the information deemed to be part of the Registration
Statement at the time of effectiveness pursuant to Rule 430A(b), if applicable,
and the Prospectus and any amendments or supplements thereto, contained or will
contain all statements that are required to be stated therein in accordance with
the 1933 Act and in all material respects conformed or will in all material
respects conform to the requirements of the 1933 Act, and neither the
Registration Statement nor the Prospectus, nor any amendment or supplement
thereto, included or will include any untrue statement of a material fact or
omitted or will omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
the Company makes no representation or warranty as to information contained in
or omitted from any preliminary prospectus, the Registration Statement, the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for use in the
preparation thereof.
(c) The Company and its subsidiaries have been duly incorporated and
are validly existing as corporations in good standing under the laws of their
respective places of incorporation, with corporate power and authority to own
their properties and conduct their business as described in the Prospectus; the
Company and each of its subsidiaries are duly qualified to do business as
foreign corporations under the corporation law of, and are in good standing as
such in, each jurisdiction in which they own or lease substantial properties,
have an office, or in which substantial business is conducted and such
qualification is required except in any such case where the failure to so
qualify or be in good standing would not have a material adverse effect upon the
Company and its subsidiaries, taken as a whole; and no proceeding of which the
Company has knowledge has been instituted in any such jurisdiction, revoking,
limiting or curtailing, or seeking to revoke, limit or curtail, such power and
authority or qualification.
(d) Except as disclosed in the Registration Statement and with respect
to director qualifying shares owned by third parties for the benefit of the
Company, the Company owns directly or indirectly 100 percent of the issued and
outstanding capital stock of each of its subsidiaries, free and clear of any
claims, liens, encumbrances or security interests, and all of such capital stock
has been duly authorized and validly issued and is fully paid and nonassessable.
(e) The issued and outstanding shares of capital stock of the Company
as set forth in the Prospectus have been duly authorized and validly issued, are
fully paid and nonassessable, and conform to the description thereof contained
in the Prospectus. Since March 30, 1986, all offers and sales of the Company's
capital stock were at all relevant times exempt from the registration
requirements of, or registered under, the 1933 Act and were duly registered with
or the subject of an available exemption from the registration requirements of
the applicable state securities or blue sky laws.
(f) The making and performance by the Company of this Agreement and the
Pricing Agreement have been duly authorized by all necessary corporate action
and will not violate any provision of the Company's charter or bylaws and will
not result in the breach, or be in contravention, of any provision of any
agreement, franchise, license, indenture, mortgage, deed of trust, or other
instrument to which the Company or any subsidiary is a party or by which the
Company, any subsidiary or the property of any of them may be bound or affected,
or any order, rule or regulation applicable to the Company or any subsidiary of
any court or regulatory body, administrative agency or other governmental body
having jurisdiction over the Company or any subsidiary or any of their
respective properties, or any order of any court or governmental agency or
authority entered in any proceeding to which the Company or any subsidiary was
or is now a party or by which it is bound. No consent, approval, authorization
or other order of any court, regulatory body, administrative agency or other
governmental body is required for the execution and delivery of this Agreement
or the Pricing Agreement or the consummation of the transactions contemplated
herein or therein, except for compliance with the 1933 Act and blue sky laws
applicable to the public offering of the Shares by the several Underwriters and
clearance of such offering with the National Association of Securities Dealers,
Inc. ("NASD"). This Agreement has been duly executed and delivered by the
Company.
(g) The accountants who have expressed their opinions with respect to
certain of the financial statements included or incorporated by reference in the
Registration Statement are independent accountants within the meaning of the
1933 Act.
(h) The consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement present fairly the
consolidated financial position of the Company as of the respective dates of
such financial statements, and the consolidated results of operations and cash
flows of the Company for the respective periods covered thereby, all in
conformity with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed in the Prospectus. The
financial information set forth in the Prospectus under "Selected Consolidated
Financial Data" presents fairly on the basis stated in the Prospectus, the
information set forth therein.
(i) Neither the Company nor any subsidiary is in violation of its
charter or in default under any consent decree, or in default with respect to
any provision of any lease, loan agreement, franchise, license, permit or other
contract obligation to which it is a party, in each case, except for defaults
which singly or in the aggregate are not material to the Company and its
subsidiaries taken as a whole; and there does not exist any state of facts which
constitutes an event of default in such documents or which, with notice or lapse
of time or both, would constitute such an event of default, in each case, except
for defaults which neither singly nor in the aggregate are material to the
Company and its subsidiaries taken as a whole.
(j) There are no material legal or governmental proceedings pending, or
to the Company's knowledge, threatened to which the Company or any subsidiary is
or may be a party or of which material property owned or leased by the Company
or any subsidiary is or may be the subject, or related to environmental or
employment discrimination matters which are not disclosed in the Prospectus, or
which question the validity of this Agreement or the Pricing Agreement or any
action taken or to be taken pursuant hereto or thereto.
(k) No preemptive rights of, or rights of first refusal in favor of,
stockholders exist with respect to any of the Shares or the issue and sale
thereof pursuant to applicable law, the charter or by-laws of the Company, or
otherwise, which have not been waived or otherwise satisfied. No person or
entity, other than the Selling Stockholders with respect to the Shares to be
sold by them hereunder, holds a right to require or participate in the
registration under the 1933 Act of shares of Common Stock of the Company, which
right has not been waived by the holder thereof or expired by reason of lapse of
time following notification of the Company's intent to file the Registration
Statement, as of the date hereof with respect to the registration of shares
pursuant to the Registration Statement; and except as described in the
Prospectus, no person holds a right to require registration under the 1933 Act
of shares of Common Stock of the Company at any other time. No person or entity
has a contractual preemptive right or right of participation or first refusal
with respect to the sale of the Shares by, to the best of the Company's
knowledge, the Selling Stockholders.
(l) The Company and each of its subsidiaries have good and valid title
to all the properties and assets reflected as owned in the financial statements
hereinabove described (or elsewhere in the Prospectus), subject to no lien,
mortgage, pledge, charge or encumbrance of any kind except those, if any,
reflected in such financial statements (or elsewhere in the Prospectus) or which
are not material to the Company and its subsidiaries taken as a whole. The
Company and each of its subsidiaries hold their respective leased properties
which are material to the Company and its subsidiaries taken as a whole under
valid and binding leases.
(m) The Company has not taken and will not take, directly or
indirectly, any action designed to constitute or which has constituted or which
might reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(n) Subsequent to the respective dates as of which information is given
in the Registration Statement and Prospectus, and except as contemplated by the
Prospectus, the Company and its subsidiaries, taken as a whole, have not
incurred any material liabilities or obligations, direct or contingent, nor
entered into any material transactions not in the ordinary course of business
and there has not been any material adverse change in their condition (financial
or otherwise) or results of operations nor any material change in their capital
stock, short-term debt or long-term debt.
(o) The Company agrees not to offer, sell, contract to sell, issue,
grant, distribute or otherwise dispose of, directly or indirectly, any Common
Stock, or any options, rights or warrants with respect to shares of Common
Stock, or securities convertible into Common Stock (except Common Stock issued
pursuant to the existing employee stock purchase plan, currently outstanding
options, warrants or convertible securities or options granted to employees
pursuant to the Company's stock option plans described in the Prospectus) for a
period of 180 days after this Agreement becomes effective without the prior
written consent of the Representatives. The Company has obtained similar
agreements for a period of 180 days from each of its officers and directors and
the Selling Stockholders.
(p) There is no material document of a character required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed as
required.
(q) The Company together with its subsidiaries owns, or possesses
adequate licenses or other rights to use, all patents, patent rights,
inventions, trade secrets, know-how, proprietary techniques, including processes
and substances, trademarks, service marks, trade names and copyrights
("Intellectual Property") necessary for the conduct of its business as currently
conducted or as specifically contemplated by the Prospectus, including the
Intellectual Property described or specifically contemplated by the Prospectus
as being owned or used by it. Except as disclosed in the Prospectus, to the
knowledge of the Company, none of the activities engaged in by the Company or
any of its subsidiaries infringes or conflicts with the Intellectual Property
rights of others. No officer, and to the knowledge of the Company, no employee,
is obligated under any contract, or subject to any judgment, decree or order of
any court or administrative agency that would interfere in any material respect
with the use of such person's best efforts to promote the interests of the
Company or any of its subsidiaries or which would conflict in any material
respect with the Company's or such subsidiary's business as described in the
Prospectus. To the knowledge of the Company, no prior employer of any employee
of the Company or any subsidiary has any right to or interest in any ideas,
inventions, works of authorship, improvements, and the like assigned by such
employee to the Company or any subsidiary. Each present employee of and
consultant or technical advisor to the Company, and to the knowledge of the
Company each past employee of and consultant or technical advisor to the
Company, has assigned to the Company, to the maximum extent permitted by law,
all right, title and interest in and to any inventions, technology, techniques,
software, processes and systems developed by such person while employed or
engaged by the Company, except where the failure to assign the same would not
have a material adverse affect on the business or financial condition of the
Company and its subsidiaries taken as a whole.
(r) The conduct of business of the Company and each of its subsidiaries
is in compliance in all respects with applicable federal, state, local and
foreign laws and regulations, except where the failure to be in compliance would
not have a material adverse effect upon the condition (financial or otherwise)
or results of operations of the Company and its subsidiaries taken as a whole.
(s) The Company and its subsidiaries have filed on a timely basis all
necessary income, franchise and other tax returns (in the United States or
otherwise) and have paid all taxes shown thereon as due, except for failures to
so file or pay which would not materially and adversely affect the Company and
its subsidiaries taken as a whole, and the Company has no knowledge of any tax
deficiency that has been or might be asserted against the Company or any
subsidiary which would materially and adversely affect the business or financial
condition of the Company and its subsidiaries taken as a whole; and all tax
liabilities are adequately provided for on the books of the Company.
(t) The Company's Common Stock is registered pursuant to Section 12(g)
of the Exchange Act and is listed on the National Market of the National
Association of Securities Dealers, Inc. Automated Quotations System
("NASDAQ/NM"), and the Company has taken no action designed to, or likely to
have the effect of, terminating the registration of the Common Stock under the
Exchange Act or delisting the Common Stock from the NASDAQ/NM, nor has the
Company received any notification that the Commission or the NASD is
contemplating terminating such registration or listing.
(u) The Company confirms as of the date hereof that it is in compliance
with all provisions of Section 1 of Laws of Florida, Chapter 92-198, An Act
Relating to Disclosure of Doing Business with Cuba, and the Company further
agrees that if it commences engaging in business with the government of Cuba or
with any person or affiliate located in Cuba after the date the Registration
Statement becomes or has become effective with the Commission or with the
Florida Department of Banking and Finance (the "Department"), whichever date is
later, or if the information reported in the Prospectus, if any, concerning the
Company's business with Cuba or with any person or affiliate located in Cuba
changes in any material way, the Company will provide the Department notice of
such business or change, as appropriate, in a form acceptable to the Department.
(v) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
SECTION 3. Representations, Warranties and Covenants of the Selling
Stockholders.
(a) Each Selling Stockholder severally represents and warrants to, and
agrees with, the Company and the Underwriters that:
(i) Such Selling Stockholder has, and on the First Closing
Date or the Second Closing Date hereinafter defined, as the case may
be, will have, good and valid title to the Shares proposed to be sold
by such Selling Stockholder hereunder on such date and full right and
power to enter into this Agreement, the Pricing Agreement, the Power of
Attorney hereinafter defined and the Custody Agreement hereinafter
defined and to sell, assign, transfer and deliver such Shares
hereunder, free and clear of all voting trust arrangements, liens,
encumbrances, equities, claims and community property rights; and upon
delivery of and payment for such Shares hereunder, the Underwriters
will acquire good and valid title thereto, free and clear of all voting
trust arrangements, liens, encumbrances, equities, claims and community
property rights.
(ii) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or which might be
reasonably expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares.
(iii) Such Selling Stockholder has executed and delivered a
Power of Attorney ("Power of Attorney") among the Selling Stockholder
and Peter J. Cohen, Kevin J. O'Brien, Richard A. Daniels and Jayandra
Patel (the "Agents"), naming the Agents as such Selling Stockholder's
attorneys-in-fact (and, by the execution by any Agent of this
Agreement, such Agents hereby represents and warrants that he has been
duly appointed as attorney-in-fact by the Selling Stockholders pursuant
to the Power of Attorney) for the purpose of entering into and carrying
out this Agreement and the Pricing Agreement, and the Power of Attorney
has been duly executed by such Selling Stockholder and a copy thereof
has been delivered to you.
(iv) Such Selling Stockholder further represents, warrants and
agrees that such Selling Stockholder has deposited in custody, under a
Custody Agreement ("Custody Agreement") with Ruskin, Moscou, Evans &
Faltischek, P.C. as custodian ("Custodian"), certificates in negotiable
form, or convertible into or exchangeable, for the Shares to be sold
hereunder by such Selling Stockholder, for the purpose of further
delivery pursuant to this Agreement. Such Selling Stockholder agrees
that the Shares to be sold by such Selling Stockholder on deposit with
the Custodian are subject to the interests of the Company, the
Underwriters and the other Selling Stockholder, that the arrangements
made for such custody, and the appointment of the Agent pursuant to the
Power of Attorney, are to that extent irrevocable and coupled with an
interest, and that the obligations of such Selling Stockholder
hereunder and under the Power of Attorney and the Custody Agreement
shall not be terminated (except as provided in this Agreement, the
Power of Attorney or the Custody Agreement) by any act of such Selling
Stockholder, by operation of law, whether, in the case of an individual
Selling Stockholder, by the death or incapacity of such Selling
Stockholder or, in the case of a trust or estate, by the death of the
trustee or trustees or the executor or executors or the termination of
such trust or estate, or, in the case of a partnership or corporation,
by the dissolution, winding-up or other event affecting the legal life
of such entity, or by the occurrence of any other event. If any
individual Selling Stockholder, trustee or executor should die or
become incapacitated, or any such trust, estate, partnership or
corporation should be terminated, or if any other event should occur
before the delivery of the Shares hereunder, the documents evidencing
Shares then on deposit with the Custodian shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement
as if such death, incapacity, termination or other event had not
occurred, regardless of whether or not the Custodian shall have
received notice thereof. Each Agent has been authorized (under the
terms of the Power of Attorney) by such Selling Stockholder to execute
and deliver this Agreement and the Pricing Agreement and the Custodian
has been authorized to receive and acknowledge receipt of the proceeds
of sale of the Shares to be sold by such Selling Stockholder against
delivery thereof and otherwise act on behalf of such Selling
Stockholder. The Custody Agreement has been duly executed by such
Selling Stockholder and a copy thereof has been delivered to you.
(v) Each preliminary prospectus, insofar as it contains
information related to such Selling Stockholder and, to the knowledge
of such Selling Stockholder in all other respects, as of its date, has
conformed in all material respects with the requirements of the 1933
Act and, as of its date, has not included any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein not misleading; and at the time the Registration
Statement becomes effective, and at all times subsequent thereto, up to
the First Closing Date or the Second Closing Date hereinafter defined,
as the case may be, (1) the Registration Statement and the Prospectus
and any amendments or supplements thereto insofar as they contain
information related to such Selling Stockholder, and to the knowledge
of such Selling Stockholder in all other respects, contained or will
contain all statements that are required to be stated therein in
accordance with the 1933 Act and in all material respects conformed or
will in all material respects conform to the requirements of the 1933
Act, and (2) neither the Registration Statement nor the Prospectus, nor
any amendment or supplement thereto, as it relates to such Selling
Stockholder, and, to the knowledge of such Selling Stockholder in all
other respects, included or will include any untrue statement of a
material fact or omitted or will omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided that neither clause (1) nor (2) shall
have any effect if information has been given by such Selling
Stockholder to the Company and the Representatives in writing for
purpose of inclusion therein which would eliminate or remedy any such
untrue statement or omission.
(vi) Such Selling Stockholder agrees with the Company and the
Underwriters not to offer, sell, contract to sell, transfer or
otherwise dispose of, directly or indirectly, any Common Stock or any
options, rights or warrants with respect to shares of Common Stock, or
securities convertible into Common Stock for a period of 180 days after
this Agreement becomes effective without the prior written consent of
the Representative (other than bona fide gifts to persons who have
agreed to be bound by the foregoing restriction).
(vii) Such Selling Stockholder has not distributed and will
not distribute any prospectus or other offering material in connection
with the offering and sale of the Shares.
(b) Each of the Selling Stockholders severally represents and warrants
to, and agrees with, the Underwriters that, the representations and warranties
of the Company set forth in Section 2 of this Agreement are true and correct.
(c) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Internal Revenue Code of 1986, as
amended, with respect to the transactions herein contemplated, each of the
Selling Stockholders agrees to deliver to you prior to or on the First Closing
Date, as hereinafter defined, a properly completed and executed United States
Treasury Department Form W-8 or W-9 (or other applicable form of statement
specified by Treasury Department regulations in lieu thereof).
SECTION 4. Representations and Warranties of the Underwriters. The
Representatives, on behalf of the several Underwriters, represent and warrant to
the Company and the Selling Stockholders that the information set forth (a) on
the cover page of the Prospectus with respect to price, underwriting discount
and terms of the offering and (b) under "Underwriting" in the Prospectus was
furnished to the Company by and on behalf of the Underwriters for use in
connection with the preparation of the Registration Statement and is correct and
complete in all material respects.
SECTION 5. Purchase, Sale and Delivery of Shares. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Selling Stockholders listed on
Schedule B hereto, severally and not jointly, agree to sell to the Underwriters
named in Schedule A hereto, and the Underwriters agree, severally and not
jointly, to purchase from the Selling Stockholders the respective number of Firm
Shares set forth opposite the names of the Selling Stockholders in Schedule B
hereto at the price per share set forth in the Pricing Agreement. The obligation
of each Underwriter to each Selling Stockholder shall be to purchase from such
Selling Stockholder the number of full shares which (as nearly as practicable,
as determined by you) bears to that number of Firm Shares set forth opposite the
name of such Selling Stockholder in Schedule B hereto, the same proportion as
the number of Shares set forth opposite the name of such Underwriter in Schedule
A hereto bears to the total number of Firm Shares to be purchased by all
Underwriters under this Agreement. The initial public offering price and the
purchase price shall be set forth in the Pricing Agreement.
At 9:00 a.m., Chicago Time, on the third full business day after the
date of this Agreement, the Custodian will deliver to you at the offices of
counsel for the Underwriters or through the facilities of The Depository Trust
Company for the accounts of the several Underwriters, certificates representing
the Firm Shares to be sold by them, respectively, against payment of the
purchase price therefor by certified or bank cashier's checks in Chicago
Clearing House funds (next-day funds) payable, as appropriate, to the order of
the Selling Stockholders. Such time of delivery and payment is herein referred
to as the "First Closing Date." The certificates for the Firm Shares so to be
delivered will be in such denominations and registered in such names as you
request by notice to the Company and the Custodian prior to 10:00 a.m., Chicago
Time, on the second full business day preceding the First Closing Date, and will
be made available at the Selling Stockholders' expense for checking and
packaging by the Representatives at 10:00 a.m., Chicago Time, on the first full
business day preceding the First Closing Date. Payment for the Firm Shares so to
be delivered shall be made at the time and in the manner described above at the
offices of counsel for the Underwriters.
In addition, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Selling Stockholders listed on Schedule B, severally and not jointly,
hereby grant an option to the several Underwriters to purchase, severally and
not jointly, up to an aggregate of 165,000 Option Shares, at the same purchase
price per share to be paid for the Firm Shares, for use solely in covering any
overallotments made by the Underwriters in the sale and distributions of the
Firm Shares. The option granted hereunder may be exercised at any time (but not
more than once) within 30 days after the date of the initial public offering
upon notice by you to the Company and the Agent setting forth the aggregate
number of Option Shares as to which the Underwriters are exercising the option,
the names and denominations in which the certificates for such shares are to be
registered and the time and place at which such certificates will be delivered.
Such time of delivery (which may not be earlier than the First Closing Date),
being herein referred to as the "Second Closing Date," shall be determined by
you, but if at any time other than the First Closing Date, shall not be earlier
than three nor later than 10 full business days after delivery of such notice of
exercise. The number of Option Shares to be purchased from each such Selling
Stockholder is set forth in Schedule B hereto. If less than all of the Option
Shares are to be purchased, the number of Option Shares which are to be
purchased from each Selling Stockholder shall be the product of (A) the
aggregate number of Option Shares to be purchased by the Underwriters multiplied
by (B) the fraction, the numerator of which is the number of Option Shares such
Selling Stockholder has agreed to sell and the denominator of which is the
maximum number of Option Shares. The number of Option Shares to be purchased by
each Underwriter shall be determined by multiplying the number of Option Shares
to be sold by the Selling Stockholders pursuant to such notice of exercise by a
fraction, the numerator of which is the number of Firm Shares to be purchased by
such Underwriter as set forth opposite its name in Schedule A and the
denominator of which is the total number of Firm Shares (subject to such
adjustments to eliminate any fractional share purchases as you in your absolute
discretion may make). Certificates for the Option Shares will be made available
at the Selling Stockholders' expense for checking and packaging at 10:00 a.m.,
Chicago Time, on the first full business day preceding the Second Closing Date.
The manner of payment for and delivery of the Option Shares shall be the same as
for the Firm Shares as specified in the preceding paragraph.
You have advised the Selling Stockholders that each Underwriter has
authorized you to accept delivery of its Shares, to make payment and to receipt
therefor. You, individually and not as the Representatives of the Underwriters,
may make payment for any Shares to be purchased by any Underwriter whose funds
shall not have been received by you by the First Closing Date or the Second
Closing Date, as the case may be, for the account of such Underwriter, but any
such payment shall not relieve such Underwriter from any obligation hereunder.
SECTION 6. Covenants of the Company. The Company covenants and agrees
that:
(a) The Company will advise you and the Selling Stockholders promptly
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of the institution of any proceedings for that
purpose, or of any notification of the suspension of qualification of the Shares
for sale in any jurisdiction or the initiation or threatening of any proceedings
for that purpose, and will also advise you and the Selling Stockholders promptly
of any request of the Commission for amendment or supplement of the Registration
Statement, of any preliminary prospectus or of the Prospectus, or for additional
information, and will not file any amendment or supplement to the Registration
Statement, to any preliminary prospectus or to the Prospectus of which you and
the Selling Stockholders have not been furnished with a copy prior to such
filing or to which you reasonably object.
(b) If at any time when a prospectus relating to the Shares is required
to be delivered under the 1933 Act any event occurs as a result of which the
Prospectus, including any amendments or supplements, would include an untrue
statement of a material fact, or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
at any time to amend the Prospectus, including any amendments or supplements
thereto and including any revised prospectus which the Company proposes for use
by the Underwriters in connection with the offering of the Shares which differs
from the prospectus on file with the Commission at the time of effectiveness of
the Registration Statement, whether or not such revised prospectus is required
to be filed pursuant to Rule 424(b) to comply with the 1933 Act, the Company
promptly will advise you thereof and will promptly prepare and file with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance; and, in case any
Underwriter is required to deliver a prospectus nine months or more after the
effective date of the Registration Statement, the Company upon request, but at
the expense of such Underwriter, will prepare promptly such prospectus or
prospectuses as may be necessary to permit compliance with the requirements of
Section 10(a)(3) of the 1933 Act.
(c) Neither the Company nor any of its subsidiaries will, prior to the
earlier of the Second Closing Date or termination or expiration of the related
option, incur any liability or obligation, direct or contingent, or enter into
any material transaction, other than in the ordinary course of business, except
as contemplated by the Prospectus.
(d) Neither the Company nor any of its subsidiaries will acquire any
capital stock of the Company prior to the earlier of the Second Closing Date or
termination or expiration of the related option nor will the Company declare or
pay any dividend or make any other distribution upon the Common Stock payable to
stockholders of record on a date prior to the earlier of the Second Closing Date
or termination or expiration of the related option, except in either case as
contemplated by or discussed in the Prospectus.
(e) Not later than __________, 1997 the Company will make generally
available to its security holders an earnings statement (which need not be
audited) covering a period of at least 12 months beginning after the effective
date of the Registration Statement, which will satisfy the provisions of the
last paragraph of Section 11(a) of the 1933 Act.
(f) During such period as a prospectus is required by law to be
delivered in connection with offers and sales of the Shares by an Underwriter or
dealer, the Company will furnish to you at its expense, subject to the
provisions of subsection (b) hereof, copies of the Registration Statement, the
Prospectus, each preliminary prospectus and all amendments and supplements to
any such documents in each case as soon as available and in such quantities as
you may reasonably request, for the purposes contemplated by the 1933 Act. To
the extent applicable, the copies of the Registration Statement and each
amendment thereto (including all exhibits filed therewith) and the Prospectus
(as amended or supplemented) furnished to the Representative and counsel to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(g) The [Company] will cooperate with the Underwriters in qualifying or
registering the Shares for sale under the blue sky laws of such jurisdictions as
you designate, and will continue such qualifications in effect so long as
reasonably required for the distribution of the Shares. The Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any such jurisdiction where it is not currently qualified
or where it would be subject to taxation as a foreign corporation.
(h) During the period of five years hereafter, the Company will furnish
you, on behalf of yourself and each of the other Underwriters, with a sufficient
number of copies (i) as soon as practicable after the filing thereof, of each
report filed by the Company with the Commission, any securities exchange or the
NASD; (ii) as soon as practicable after release thereof, of each material press
release in respect of the Company; (iii) as soon as available, of each report of
the Company mailed to stockholders; and (iv) any additional information of a
public nature concerning the Company or its business that you may reasonably
request. To the extent applicable, such reports or documents shall be identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(i) If, at the time of effectiveness of the Registration Statement, any
information shall have been omitted therefrom in reliance upon Rule 430A, then
immediately following the execution and delivery of the Pricing Agreement, the
Company will prepare, and file or transmit for filing with the Commission in
accordance with such Rule 430A and Rule 424(b), copies of an amended prospectus,
or, if required by such Rule 430A, a post-effective amendment to the
Registration Statement (including an amended prospectus), containing all
information so omitted.
(j) The Company will comply with all registration filing and reporting
requirements of the Exchange Act and the NASDAQ/NM.
(k) The Company is familiar with the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder, and has in the past conducted
its affairs, and will for the next three years conduct its affairs, in such a
manner so as to ensure that the Company was not and will not be an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
and the rules and regulations thereunder.
SECTION 7. Payment of Expenses. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective as to
all of its provisions or is terminated, the Selling Stockholders agree to pay
(i) all costs, fees and expenses (other than legal fees and disbursements of
counsel for the Underwriters and the expenses incurred by the Underwriters)
incurred in connection with the performance of their and the Company's
obligations hereunder, including without limiting the generality of the
foregoing, all fees and expenses of legal counsel for the Company and of the
Company's independent accountants, all costs and expenses incurred in connection
with the preparation, printing, filing and distribution of the Registration
Statement, each preliminary prospectus and the Prospectus (including all
incorporated Documents, exhibits and financial statements) and all amendments
and supplements provided for herein, this Agreement, the Pricing Agreement, the
Power of Attorney and the Custody Agreement; (ii) all costs, fees and expenses
(including legal fees and disbursements of counsel for the Underwriters not to
exceed $15,000) incurred by the Underwriters in connection with qualifying or
registering all or any part of the Shares for offer and sale under blue sky
laws, including the preparation of a Blue Sky Memorandum relating to the Shares,
and clearance of such offering with the NASD; and (iii) all fees and expenses of
the Company's transfer agent, printing of the certificates for the Shares and
all transfer taxes, if any, with respect to the sale and delivery of the Shares
to the several Underwriters.
The provisions of this Section shall not affect any agreement which the
Company and the Selling Stockholders may make for the allocation or sharing of
such expenses and costs.
SECTION 8. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm Shares
on the First Closing Date and the Option Shares on the Second Closing Date shall
be subject to the accuracy of the representations and warranties on the part of
the Company and the Selling Stockholders herein set forth as of the date hereof
and as of the First Closing Date or the Second Closing Date, as the case may be,
to the accuracy of the statements of officers of the Company made pursuant to
the provisions hereof, to the performance by the Company and the Selling
Stockholders of their respective obligations hereunder, and to the following
additional conditions:
(a) The Registration Statement shall have become effective either prior
to the execution of this Agreement or not later than 8:30 a.m., Chicago Time, on
the first full business day after the date of this Agreement, or such later time
as shall have been consented to by you but in no event later than 1:00 p.m.,
Chicago Time, on the third full business day following the date hereof; and
prior to the First Closing Date or the Second Closing Date, as the case may be,
no stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been instituted
or shall be pending or, to the knowledge of the Company, the Selling
Stockholders or you, shall be contemplated by the Commission. If the Company has
elected to rely upon Rule 430A, the information concerning the public offering
price of the Shares and price-related information shall have been transmitted to
the Commission for filing pursuant to Rule 424(b) within the prescribed period
and the Company will provide evidence satisfactory to the Representatives of
such timely filing (or a post-effective amendment providing such information
shall have been filed and declared effective in accordance with the requirements
of Rules 430A and 424(b)).
(b) The Shares shall have been qualified for sale under the blue sky
laws of such states as shall have been specified by the Representatives.
(c) The legality and sufficiency of the authorization, issuance and
sale or transfer and sale of the Shares hereunder, the validity and form of the
certificates representing the Shares, the execution and delivery of this
Agreement, the Pricing Agreement, the Power of Attorney and the Custody
Agreement, and all corporate proceedings and other legal matters incident
thereto, and the form of the Registration Statement and the Prospectus (except
financial statements) shall have been approved by counsel for the Underwriters
exercising reasonable judgment.
(d) You shall not have advised the Company that the Registration
Statement or the Prospectus or any amendment or supplement thereto, contains an
untrue statement of fact, which, in the opinion of counsel for the Underwriters,
is material or omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(e) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the Company
or its subsidiaries, whether or not arising in the ordinary course of business,
which, in the reasonable judgment of the Representatives, makes it impractical
or inadvisable to proceed with the public offering or purchase of the Shares as
contemplated hereby.
(f) There shall have been furnished to you, as Representatives of the
Underwriters, on the First Closing Date or the Second Closing Date, as the case
may be, except as otherwise expressly provided below:
(i) An opinion of Ruskin, Moscou, Evans & Faltischek, P.C.,
counsel for the Company and the Selling Stockholders, addressed to the
Underwriters and dated the First Closing Date or the Second Closing
Date, as the case may be, to the effect that:
(1) 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 corporate power and authority to own its properties and conduct
its business as described in the Prospectus; and the Company has been duly
qualified to do business as a foreign corporation under the corporation law of,
and is in good standing as such in, every jurisdiction where the ownership or
leasing of property, or the conduct of its business requires such qualification
except where the failure so to qualify would not have a material adverse effect
upon the condition (financial or otherwise) or results of operations of the
Company and its subsidiaries taken as a whole;
(2) an opinion to the same general effect as clause
(1) of this subparagraph (i) in respect of each direct and indirect subsidiary
of the Company;
(3) all of the issued and outstanding capital stock
of each subsidiary of the Company has been duly authorized, validly issued and
is fully paid and nonassessable, and, except as disclosed in the Registration
Statement and with respect to director qualifying shares owned by third parties
for the benefit of the Company, the Company owns directly or indirectly 100
percent of the outstanding capital stock of each subsidiary, and to the
knowledge of such counsel, such stock is owned free and clear of any claims,
liens, encumbrances or security interests; and to the knowledge of such counsel,
except for the subsidiaries listed in the Registration Statement, the Company
does not own or control, directly or indirectly, any corporation, association or
other entity;
(4) the authorized capital stock of the Company, of
which there is outstanding to the knowledge of such counsel the amount set forth
in the Registration Statement and Prospectus (except for subsequent issuances,
if any, pursuant to stock options or other rights referred to in the
Prospectus), conforms as to legal matters in all material respects to the
description thereof in the Registration Statement and Prospectus;
(5) the issued and outstanding capital stock of the
Company has been duly authorized and validly issued and is to the knowledge of
such counsel fully paid and nonassessable;
(6) the certificates for the Shares to be delivered
hereunder are in due and proper form, and when duly countersigned by the
Company's transfer agent and delivered to you or upon your order against payment
of the agreed consideration therefor in accordance with the provisions of this
Agreement and the Pricing Agreement, the Shares represented thereby will be duly
authorized and validly issued, fully paid and nonassessable;
(7) no preemptive rights of, or rights of first
refusal in favor of, stockholders exist with respect to any of the Shares or the
issue and sale thereof pursuant to applicable law or the charter or by-laws of
the Company and, to the knowledge of such counsel, there are no contractual
preemptive rights or rights of first refusal or other similar rights which exist
with respect to any of the Shares or the issue and sale thereof;
(8) to such counsel's knowledge, except as set forth
in the Registration Statement and the Prospectus, no holders of shares of Common
Stock or other securities of the Company have registration rights with respect
to securities of the Company and, except as set forth in the Registration
Statement and Prospectus, all holders of securities of the Company having
registration rights with respect to shares of Common Stock or other securities
have, with respect to the offering contemplated hereby, waived such rights or
such rights have otherwise been waived or such rights have expired by reason of
lapse of time following notification of the Company's intent to file the
Registration Statement;
(9) the Registration Statement has become effective
under the 1933 Act, and, to the 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
contemplated under the 1933 Act, and the Registration Statement (including the
information deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b), if applicable), the Prospectus and each
amendment or supplement thereto (except for the financial statements and other
statistical or financial data included therein as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the 1933 Act; nothing has come to counsel's attention that
causes them to believe that either the Registration Statement (including the
information deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b), if applicable) or the Prospectus, or the
Registration Statement or the Prospectus as amended or supplemented (except as
aforesaid), as of their respective effective or issue dates, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus as amended or supplemented, if applicable, as of the
First Closing Date or the Second Closing Date, as the case may be, contained any
untrue statement of a material fact or omitted to state any material fact
necessary to make the statements therein not misleading in light of the
circumstances under which they were made; and such counsel does not know of any
legal or governmental proceedings pending or threatened required to be described
in the Prospectus which are not described as required, nor of any contracts or
documents of a character required to be described in the Registration Statement
or Prospectus or to be filed as exhibits to the Registration Statement which are
not described or filed, as required;
(10) the statements in the Registration Statement
and the Prospectus summarizing statutes, rules and regulations (excluding
accounting and auditing rules) are accurate and fairly and correctly present the
information required to be presented by the 1933 Act or the rules and
regulations thereunder, in all material respects; and such counsel does not know
of any statutes, rules and regulations required to be described in the
Registration Statement or the Prospectus that are not described or referred to
therein as required;
(11) the statements under the caption "Description
of Capital Stock" in the Prospectus, insofar as such statements constitute a
summary of documents referred to therein or matters of law, are accurate
summaries and fairly and correctly present, in all material respects, the
information called for with respect to such documents and matters;
(12) this Agreement and the Pricing Agreement and
the performance of the Company's obligations hereunder have been duly authorized
by all necessary corporate action and this Agreement and the Pricing Agreement
have been duly executed and delivered by and on behalf of the Company, and are
legal, valid and binding agreements of the Company, except as enforceability of
the same may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights and by the exercise of judicial
discretion in accordance with general principles applicable to equitable and
similar remedies and except as to those provisions relating to indemnities for
liabilities arising under the 1933 Act as to which no opinion need be expressed;
and no approval, authorization or consent of any public board, agency or
instrumentality of the United States or of any state or other jurisdiction is
necessary in connection with the issue or sale of the Shares by the Company
pursuant to this Agreement (other than under the 1933 Act, applicable blue sky
laws and the rules of the NASD) or the consummation by the Company of any other
transactions contemplated hereby;
(13) the execution and performance of this
Agreement, to such counsel's knowledge, will not contravene any of the
provisions of, or result in a default under, any agreement, franchise, license,
indenture, mortgage, deed of trust, or other instrument, of the Company or any
of its subsidiaries or by which the property of any of them is bound and which
contravention or default would be material to the Company and its subsidiaries
taken as a whole; or violate any of the provisions of the charter or bylaws of
the Company or any of its subsidiaries or, so far as is known to such counsel,
violate any statute, order, rule or regulation of any regulatory or governmental
body having jurisdiction over the Company or any of its subsidiaries;
(14) to such counsel's knowledge, all offers and
sales of the Company's capital stock since November 23, 1995 were at all
relevant times exempt from the registration requirements of the 1933 Act and
were duly registered or the subject of an available exemption from the
registration requirements of the applicable state securities or blue sky laws;
(15) all documents incorporated by reference in the
Prospectus, when they were filed with the Commission, compiled as to form in all
material respects with the requirements of the Exchange Act; and such counsel
have no reason to believe that any of such documents, when they were so filed,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so filed, not
misleading; such counsel need express no opinion as to the financial statements
or other financial or statistical date contained in any such document.
(16) with respect to each Selling Stockholder, this
Agreement and the Pricing Agreement have been duly authorized, executed and
delivered by or on behalf of each such Selling Stockholder; the Agent and the
Custodian for each such Selling Stockholder has been duly and validly authorized
to carry out all transactions contemplated herein on behalf of each such Selling
Stockholder; and the performance of this Agreement and the Pricing Agreement and
the consummation of the transactions herein contemplated by such Selling
Stockholders, to such counsel's knowledge, will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
any statute, any indenture, mortgage, deed of trust, note agreement or other
agreement or instrument to which any of such Selling Stockholders is a party or
by which any are bound or to which any of the property of such Selling
Stockholders is subject, or any order, rule or regulation known to such counsel
of any court or governmental agency or body having jurisdiction over any of such
Selling Stockholders or any of their properties; and no consent, approval,
authorization or order of any court or governmental agency or body is required
for the consummation of the transactions contemplated by this Agreement and the
Pricing Agreement in connection with the sale of Shares to be sold by such
Selling Stockholders hereunder, except such as have been obtained under the 1933
Act and such as may be required under applicable blue sky laws in connection
with the purchase and distribution of such Shares by the Underwriters and the
clearance of such offering with the NASD;
(17) each Selling Stockholder has full right and
power to enter into this Agreement, the Pricing Agreement, the Power of Attorney
and the Custody Agreement and to sell, transfer and deliver the Shares to be
sold on the First Closing Date or the Second Closing Date, as the case may be,
by such Selling Stockholder hereunder; each Selling Stockholder is the record
owner of such Shares so sold and to such counsel's knowledge such shares are
owned free and clear of all voting trust arrangements, liens, encumbrances,
equities, claims and community property rights whatsoever;
(18) title to such Shares has been transferred to
the Underwriters (who counsel may assume to be bona fide purchasers) who have
purchased such Shares hereunder; and
(19) this Agreement, the Pricing Agreement, the
Power of Attorney and the Custody Agreement are legal, valid and binding
agreements of each Selling Stockholder except as enforceability of the same may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights and by the exercise of judicial
discretion in accordance with general principles applicable to equitable and
similar remedies and except with respect to those provisions relating to
indemnities for liabilities arising under the 1933 Act, as to which no opinion
need be expressed.
In rendering such opinion, such counsel may state that they are relying
upon the certificate of American Stock Transfer and Trust Company, the transfer
agent for the Common Stock, as to the number of shares of Common Stock at any
time or times outstanding, and that insofar as their opinion under clause (9) of
this Section 8(f) above relates to the accuracy and completeness of the
Prospectus and Registration Statement, it is based upon participation in
conferences with representatives of the Underwriters, and with officers and
other representatives of the Company and its independent public accountants, at
which the contents of the Registration Statement and the Prospectus were
discussed, without independent verification by such counsel of the accuracy or
completeness of such information. Such counsel may also rely upon the opinions
of other competent counsel and, as to factual matters, on certificates of the
Selling Stockholders and of officers of the Company and of state officials, in
which case their opinion is to state that they are so doing and copies of said
opinions or certificates are to be attached to the opinion unless said opinions
or certificates (or, in the case of certificates, the information therein) have
been furnished to the Representatives in other form.
(ii) Such opinion or opinions of Testa, Hurwitz & Thibeault,
LLP, counsel for the Underwriters, dated the First Closing Date or the
Second Closing Date, as the case may be, with respect to the
incorporation of the Company, the validity of the Shares to be sold by
the Company, the Registration Statement and the Prospectus and other
related matters as you may reasonably require, and the Company shall
have furnished to such counsel such documents and shall have exhibited
to them such papers and records as they request for the purpose of
enabling them to pass upon such matters.
(iii) A certificate of the chief executive officer and the
principal financial officer of the Company, dated the First Closing
Date or the Second Closing Date, as the case may be, to the effect
that:
(1) the representations and warranties of the Company set forth in
Section 2 of this Agreement are true and correct as of the date of this
Agreement and as of the First Closing Date or the Second Closing Date,
as the case may be, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to such Closing Date; and
(2) the Commission has not issued an order preventing or
suspending the use of the Prospectus or any preliminary prospectus
filed as a part of the Registration Statement or any amendment thereto;
no stop order suspending the effectiveness of the Registration
Statement has been issued; and to the best knowledge of the respective
signers, no proceedings for that purpose have been instituted or are
pending or contemplated under the 1933 Act.
The delivery of the certificate provided for in this
subparagraph shall be and constitute a representation and warranty of
the Company as to the facts required in the immediately foregoing
clauses (1) and (2) of this subparagraph to be set forth in said
certificate.
(iv) A certificate of each Selling Stockholder dated the First
Closing Date or the Second Closing Date, as the case may be, to the
effect that the representations and warranties of such Selling
Stockholder set forth in Section 3 of this Agreement are true and
correct as of such date and the Selling Stockholder has complied with
all the agreements and satisfied all the conditions on the part of such
Selling Stockholder to be performed or satisfied at or prior to such
date.
(v) At the time the Pricing Agreement is executed and also on
the First Closing Date or the Second Closing Date, as the case may be,
there shall be delivered to you a letter addressed to you, as
Representatives of the Underwriters, from Deloitte & Touche, LLP
independent accountants, the first one to be dated the date of the
Pricing Agreement, the second one to be dated the First Closing Date
and the third one (in the event of a second closing) to be dated the
Second Closing Date, to the effect set forth in Schedule C. There shall
not have been any change or decrease specified in the letters referred
to in this subparagraph which makes it impractical or inadvisable in
the judgment of the Representatives to proceed with the public offering
of purchase of the Shares as contemplated hereby.
(vi) Such further certificates and documents as you may
reasonably request.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory to you and
to Testa, Hurwitz & Thibeault, LLP, counsel for the Underwriters, which approval
shall not be unreasonably withheld. The Company shall furnish you with such
manually signed or conformed copies of such opinions, certificates, letters and
documents as you request.
If any condition to the Underwriters' obligations hereunder to be
satisfied prior to or at the First Closing Date is not so satisfied, this
Agreement at your election will terminate upon notification to the Company and
the Selling Stockholders without liability on the part of any Underwriter or the
Company or any Selling Stockholder, except for the expenses to be paid or
reimbursed by the Selling Stockholders pursuant to Sections 7 and 9 hereof and
except to the extent provided in Section 11 hereof.
SECTION 9. Reimbursement of Underwriters' Expenses. In addition to
expenses required to be borne by the Selling Stockholders under Section 7
hereof, if the sale to the Underwriters of the Shares on the First Closing Date
is not consummated because any condition of the Underwriters' obligations
hereunder is not satisfied or because of any refusal, inability or failure on
the part of the Company or the Selling Stockholders to perform any agreement
herein or to comply with any provision hereof, unless such failure to satisfy
such condition or to comply with any provision hereof is due to the default or
omission of any Underwriter, the Selling Stockholders agree to reimburse you and
the other Underwriters upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been reasonably
incurred by you and them in connection with the proposed purchase and sale of
the Shares. Any such termination shall be without liability of any party to any
other party except that the provisions of this Section 9, Section 7 and Section
11 shall at all times be effective and shall apply.
SECTION 10. Effectiveness of Registration Statement. You, the Company
and the Selling Stockholders will use your, its and their best efforts to cause
the Registration Statement to become effective, if it has not yet become
effective, and to prevent the issuance of any stop order suspending the
effectiveness of the Registration Statement and, if such stop order be issued,
to obtain as soon as possible the lifting thereof.
SECTION 11. Indemnification. (a) The Company and each Selling
Stockholder, jointly and severally, agree to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the 1933 Act or the Exchange Act against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter or such controlling
person may become subject under the 1933 Act, the Exchange Act or other federal
or state statutory law or regulation, at common law or otherwise (including in
settlement of any litigation if such settlement is effected with the written
consent of the Company and/or such Selling Stockholders, as the case may be),
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement,
including the information deemed to be part of the Registration Statement at the
time of effectiveness pursuant to Rule 430A, if applicable, any preliminary
prospectus, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and will reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that neither the Company nor any Selling Stockholder will be liable in any such
case to the extent that (i) any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement thereto in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of any Underwriter through the Representatives, specifically for use
therein; or (ii) if such statement or omission was contained or made in any
preliminary prospectus and corrected in the Prospectus and (1) any such loss,
claim, damage or liability suffered or incurred by any Underwriter (or any
person who controls any Underwriter) resulted from an action, claim or suit by
any person who purchased Shares which are the subject thereof from such
Underwriter in the offering and (2) such Underwriter failed to deliver or
provide a copy of the Prospectus to such person at or prior to the confirmation
of the sale of such Shares in any case where such delivery is required by the
1933 Act. In addition to their other obligations under this Section 11(a), the
Company and the Selling Stockholders agree that, as an interim measure during
the pendency of any such claim, action, investigation, inquiry or other
proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission, described in this Section 11(a), they will
reimburse the Underwriters on a monthly basis for all reasonable legal and other
expenses incurred in connection with investigating or defending any such claim,
action, investigation, inquiry or other proceeding, notwithstanding the absence
of a judicial determination as to the propriety and enforceability of the
Company's and the Selling Stockholders' 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 of competent jurisdiction. This indemnity
agreement will be in addition to any liability which the Company and the Selling
Stockholders may otherwise have.
Without limiting the full extent of the agreement of the Company and
the Selling Stockholders to indemnify each Underwriter, as herein provided, each
Selling Stockholder shall be liable under the indemnity agreements contained in
this Section 11(a) only for an amount not exceeding, in the case of each such
Selling Stockholder, the net proceeds (after deducting the Underwiters discount)
received by such Selling Stockholders from the sale of Shares hereunder;
provided however, that the payment obligation of the Selling Stockholders under
this Section 11(a) shall be limited to the amount of losses, claims, damages or
liabilities that are not paid by the Company under this Section 11(a) and such
payment shall not be required from the Selling Stockholders unless the
Underwriter or controlling person seeking indemnification shall have previously
sought indemnification from the Company first, as follows: (i) by serving a
written demand therefor upon the Company in accordance with the provisions of
Section 16 hereof, with a copy of such demand furnished to each Selling
Stockholder; and (ii) by commencing an action against the Company in a court of
competent jurisdiction. Each Underwriter and controlling person further agrees
that indemnification shall not be sought from any one or more of the Selling
Stockholders until the earlier of (x) the time for the Company to respond to the
complaint in the action to be commenced against the Company pursuant hereto has
expired, or (y) 90 days from the date of the commencement of the action by the
Underwriters or controlling person against the Company; provided, however, that
the foregoing limitations shall not apply with respect to any Selling
Stockholder (1) in the event and to the extent that any claim for
indemnification arises out of or is based upon an untrue statement or alleged
untrue statement, or omission or alleged omission made in the Registration
Statement, any preliminary prospectus, the Prospectus or such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Selling Stockholder, acting in
his individual capacity, specifically for use in the preparation thereof; or (2)
with respect to which the failure of any Underwriter or controlling person to
commence an action against such Selling Stockholder would result in such
Underwriter or controlling person being barred from bringing such action or
would otherwise abridge, nullify or eliminate the ability of such Underwriter or
controlling person to bring an action, or in any manner to forfeit any claims,
against such Selling Stockholder.
(b) Each Underwriter will severally indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the Registration
Statement, and each Selling Stockholder and each person, if any, who controls
the Company within the meaning of the 1933 Act or the Exchange Act, against any
losses, claims, damages or liabilities to which the Company, or any such
director, officer, Selling Stockholder or controlling person may become subject
under the 1933 Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such
Underwriter), insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue or alleged untrue
statement of any material fact contained in the Registration Statement, any
preliminary prospectus, the Prospectus, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, 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 Registration Statement, any preliminary
prospectus, the Prospectus, or any amendment or supplement thereto in reliance
upon and in conformity with Section 4 of this Agreement or any other written
information furnished to the Company by such Underwriter through the
Representatives specifically for use in the preparation thereof; and will
reimburse any legal or other expenses reasonably incurred by the Company, or any
such director, officer, Selling Stockholder or controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action. In addition to their other obligations under this Section 11(b), the
Underwriters agree that, as an interim measure during the pendency of any such
claim, action, investigation, inquiry or other proceeding arising out of or
based upon any statement or omission, or any alleged statement or omission,
described in this Section 11(b), they will reimburse the Company and the Selling
Stockholders on a monthly basis for all reasonable legal and other expenses
incurred in connection with investigating or defending any such claim, action,
investigation, inquiry or the proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the
Underwriters' obligation to reimburse the Company and the Selling Stockholders
for such expenses and the possibility that such payments might later be held to
have been improper by a court of competent jurisdiction. This indemnity
agreement will be in addition to any liability which such Underwriter may
otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under this
Section, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party except to the extent that
the indemnifying party was prejudiced by such failure to notify. In case any
such action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
all other indemnifying parties similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided, however,
if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, or the indemnified and indemnifying parties may have
conflicting interests which would make it inappropriate for the same counsel to
represent both of them, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defense and otherwise to
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defense in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of paragraph (a)
representing all indemnified parties not having different or additional defenses
or potential conflicting interest among themselves who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. No indemnifying or indemnified
party shall, without the prior written consent of the indemnified or
indemnifying party, as the case may be, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified or indemnifying party
is or could have been a party and indemnity could have been sought hereunder by
such indemnified or indemnifying party, unless such settlement includes an
unconditional release of such indemnified or indemnifying party from all
liability arising out of such proceeding.
(d) It is agreed that any controversy arising out of the operation of
the interim reimbursement arrangements set forth in paragraphs (a) and (b)
hereof, including the amount of any requested reimbursement payments, the method
of determining such amounts and the basis on which such amounts shall be
apportioned among the indemnifying parties, shall be settled by arbitration
conducted pursuant to the Code of Arbitration Procedure of the NASD. Any such
arbitration must be commenced by service of a written demand for arbitration or
a written notice of intention to arbitrate, therein electing the arbitration
tribunal. In the event the party demanding arbitration does not make such
designation of an arbitration tribunal in such demand or notice, then the party
responding to said demand or notice is authorized to do so. Any such arbitration
will be limited to the operation of the interim reimbursement provisions
contained in paragraphs 11(a) and (b) hereof and will not resolve the ultimate
propriety or enforceability of the obligation to indemnify for expenses that are
created by the provisions of such paragraphs 11(a) and (b) hereof.
(e) If the indemnification provided for in this Section is unavailable
to an indemnified party under paragraphs (a) or (b) hereof in respect of any
losses, claims, damages or liabilities referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, the
Selling Stockholders and the Underwriters from the offering of the Shares or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company, the Selling Stockholders and the Underwriters in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
respective relative benefits received by the Company, the Selling Stockholders
and the Underwriters shall be deemed to be in the same proportion in the case of
the Company and the Selling Stockholders, as the total price paid to the Company
and the Selling Stockholders for the Shares by the Underwriters (net of
underwriting discount but before deducting expenses), and in the case of the
Underwriters as the underwriting discount received by them bears to the total of
such amounts paid to the Company and the Selling Stockholders and received by
the Underwriters as underwriting discount in each case as contemplated by the
Prospectus. The relative fault of the Company and the Selling Stockholders and
the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact of the
omission to state a material fact relates to information supplied by the Company
or by the Selling Stockholders or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result of
the losses, claims, damages and liabilities referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Company, the Selling Stockholders and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of this Section,
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section are several in proportion to their
respective underwriting commitments and not joint.
(f) The provisions of this Section shall survive any termination of
this Agreement.
Section 12. Default of Underwriters. It shall be a condition to the
agreement and obligation of the Company and the Selling Stockholders to sell and
deliver the Shares hereunder, and of each Underwriter to purchase the Shares
hereunder, that, except as hereinafter in this paragraph provided, each of the
Underwriters shall purchase and pay for all Shares agreed to be purchased by
such Underwriter hereunder upon tender to the Representatives of all such shares
in accordance with the terms hereof. If any Underwriter or Underwriters default
in their obligations to purchase Shares hereunder on the First Closing Date and
the aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10 percent of the total number of
Shares which the Underwriters are obligated to purchase on the First Closing
Date, the Representatives may make arrangements satisfactory to the Company and
the Selling Stockholders for the purchase of such Shares by other persons,
including any of the Underwriters, but if no such arrangements are made by such
date the nondefaulting Underwriters shall be obligated severally, in proportion
to their respective commitments hereunder, to purchase the Shares which such
defaulting Underwriters agreed but failed to purchase on such date. If any
Underwriter or Underwriters so default and the aggregate number of Shares with
respect to which such default or defaults occur is more than the above
percentage and arrangements satisfactory to the Representatives and the Company
and the Selling Stockholders for the purchase of such Shares by other persons
are not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any nondefaulting Underwriter or the Company or
the Selling Stockholders, except for the expenses to be paid by the Company
pursuant to Section 7 hereof and except to the extent provided in Section 11
hereof.
In the event that Shares to which a default relates are to be purchased
by the nondefaulting Underwriters or by another party or parties, the
Representatives or the Company shall have the right to postpone the First
Closing Date for not more than seven business days in order that the necessary
changes in the Registration Statement, Prospectus and any other documents, as
well as any other arrangements, may be effected. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
Section 13. Effective Date. This Agreement shall become effective
immediately as to Sections 7, 9, 11 and 14 and as to all other provisions at
10:00 a.m., Chicago Time, on the day following the date upon which the Pricing
Agreement is executed and delivered, unless such a day is a Saturday, Sunday or
holiday (and in that event this Agreement shall become effective at such hour on
the business day next succeeding such Saturday, Sunday or holiday); but this
Agreement shall nevertheless become effective at such earlier time after the
Pricing Agreement is executed and delivered as you may determine on and by
notice to the Company and the Selling Stockholders or by release of any Shares
for sale to the public. For the purposes of this Section, the Shares shall be
deemed to have been so released upon the release for publication of any
newspaper advertisement relating to the Shares or upon the release by you of
telegrams (i) advising Underwriters that the Shares are released for public
offering, or (ii) offering the Shares for sale to securities dealers, whichever
may occur first.
Section 14. Termination. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof:
(a) This Agreement may be terminated by the Company by notice to you
and the Selling Stockholders or by you by notice to the Company and the Selling
Stockholders at any time prior to the time this Agreement shall become effective
as to all its provisions, and any such termination shall be without liability on
the part of the Company or the Selling Stockholders to any Underwriter (except
for the expenses to be paid or reimbursed pursuant to Section 7 hereof and
except to the extent provided in Section 11 hereof) or of any Underwriter to the
Company or the Selling Stockholders.
(b) This Agreement may also be terminated by you prior to the First
Closing Date, and the option referred to in Section 5, if exercised, may be
canceled at any time prior to the Second Closing Date, if (i) trading in
securities on the New York Stock Exchange, the American Stock Exchange or the
NASDAQ/NM shall have been suspended or maximum or minimum prices shall have been
established on such exchange, or (ii) a banking moratorium shall have been
declared by Illinois, New York, or United States authorities, (iii) there shall
have been any change in financial markets or in political, economic or financial
conditions which, in the reasonable opinion of the Representatives, either
renders it impractical or inadvisable to proceed with the offering and sale of
the Shares on the terms set forth in the Prospectus or materially and adversely
affects the market for the Shares, (iv) there shall have been an outbreak of
major armed hostilities between the United States and any foreign power which in
the opinion of the Representatives makes it impractical or inadvisable to offer
or sell the Shares, (v) if at or prior to the First Closing Date, or on or prior
to any later date on which Option Shares are to be purchased, as the case may
be, the Company shall have sustained a loss by strike, fire, flood, accident or
other calamity of such character as to interfere materially with the conduct of
the business and operations of the Company regardless of whether or not such
loss shall have been insured, or (vi) since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there
shall have occurred any material adverse change or any development involving a
prospective material adverse change in or affecting the condition, financial or
otherwise, of the Company and its subsidiaries, taken as a whole, or the
earnings, business affairs, management, or business prospects of the Company and
its subsidiaries taken as a whole, whether or not arising in the ordinary course
of business. Any termination pursuant to this paragraph (b) shall be without
liability on the part of any Underwriter to the Company or the Selling
Stockholders or on the part of the Company to any Underwriter or the Selling
Stockholders (except for expenses to be paid or reimbursed pursuant to Section 7
hereof and except to the extent provided in Section 11 hereof).
Section 15. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers, of the Selling Stockholders and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Company or any of its or their partners,
officers or directors or any controlling person, or the Selling Stockholders as
the case may be, and will survive delivery of and payment for the Shares sold
hereunder.
Section 16. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters will be mailed, delivered or telegraphed and
confirmed to you c/o William Blair & Company, L.L.C. 222 West Adams Street,
Chicago, Illinois 60606, with a copy to Testa, Hurwitz & Thibeault, LLP 125 High
Street, Boston, Massachusetts 02110, Attention: William B. Asher, Jr., Esq.; if
sent to the Company will be mailed, delivered or telegraphed and confirmed to
the Company at its corporate headquarters with a copy to Ruskin, Moscou, Evans &
Faltischek, P.C., 170 Old Country Road, Mineola, New York 11501, Attention:
Raymond S. Evans, Esq.; and if sent to the Selling Stockholders will be mailed,
delivered or telegraphed and confirmed to the Agent and the Custodian at such
address as they have previously furnished to the Company and the Representative,
with a copy to Ruskin, Moscou, Evans & Faltischek, P.C., Attention: Raymond S.
Evans, Esq.
Section 17. Successors. This Agreement and the Pricing Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors, personal Representatives and assigns, and to the benefit
of the officers and directors and controlling persons referred to in Section 11,
and no other person will have any right or obligation hereunder. the term
"successors" shall not include any purchaser of the Shares as such from any of
the Underwriters merely by reason of such purchase.
Section 18. Representation of Underwriters. You will act as
Representatives for the several Underwriters in connection with this financing,
and any action under or in respect of this Agreement taken by you will be
binding upon all the Underwriters.
Section 19. Partial Unenforceability. If any section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, paragraph or provision hereof.
Section 20. Applicable Law. This Agreement and the Pricing Agreement
shall be governed by and construed in accordance with the laws of the State of
Illinois.
Section 21. Release from Prior Lockup. That upon delivery by such
Selling Stockholder of an agreement with the Representatives consistent with the
description in Section 3(a)(vi) of this Agreement, each such Selling Stockholder
is hereby released from the "lock-up" restrictions contained in Section 3(a)(vi)
of that certain Underwriting Agreement between the Company, the Underwriters and
the Selling Stockholders dated November 17, 1995 for purposes of selling the
Firm Shares and, to the extent the Underwriters exercise their overallotment
option pursuant to Section 5 hereof, the Option Shares, set forth opposite their
names on Schedule B hereto.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Stockholders and the several Underwriters including you, all in accordance with
its terms.
Very truly yours,
PERIPHONICS CORPORATION
By:________________________________
Chief Executive Officer
SELLING STOCKHOLDERS
Peter J. Cohen Grantor Trust
George W. Cole
Richard A. Daniels Grantor Retained Annuity Trust
Terrence Meehan
Kevin O'Brien
Jayandra Patel
By:_________________________________
Agent and Attorney-in-Fact
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
WILLIAM BLAIR & COMPANY, L.L.C.
DAIN BOSWORTH INCORPORATED
Acting as Representatives of the
several Underwriters named in
Schedule A.
By: William Blair & Company, L.L.C.
By:_______________________________
Principal
EXHIBIT A
PERIPHONICS CORPORATION
1,100,000 Shares Common Stock*
PRICING AGREEMENT
____________, 1996
William Blair & Company, L.L.C.
Dain Bosworth Incorporated
As Representatives of the Several
Underwriters
222 West Adams Street
Chicago, IL 60606
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated ___________, 1996
(the "Underwriting Agreement") relating to the sale by the Company and the
Selling Stockholders and the purchase by the several Underwriters, for whom
William Blair & Company, L.L.C. and Dain Bosworth Incorporated are acting as
representatives (the "Representatives"), of the above Shares. All terms herein
shall have the definitions contained in the Underwriting Agreement except as
otherwise defined herein.
Pursuant to Section 5 of the Underwriting Agreement, the Company and
each of the Selling Stockholders agree with the Representatives as follows:
1. The public offering price per share of the Shares shall be
$_______.
2. The purchase price per share for the Shares to be paid by the
several Underwriters shall be $______, being an amount equal to the public
offering price set forth above less $_____ per share.
- --------------------------
* Plus an option to acquire up to 165,000 additional shares to cover
overallotments.
Schedule A is amended as follows.
If the foregoing is in accordance with your understanding to our
agreement, kindly sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Stockholders and the several Underwriters, including you, all in accordance with
its terms.
Very truly yours,
PERIPHONICS CORPORATION
By:_________________________________
Chief Executive Officer
SELLING STOCKHOLDERS
Peter J. Cohen Grantor Trust
George W. Cole
Richard A. Daniels Grantor Retained Annuity Trust
Terrence Meehan
Kevin O'Brien
Jayandra Patel
By:_________________________________
Agent and Attorney-in-Fact
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
WILLIAM BLAIR & COMPANY, L.L.C.
DAIN BOSWORTH INCORPORATED
Acting as Representatives of the
several Underwriters
By: William Blair & Company, L.L.C.
By:_______________________________
Principal
SCHEDULE A
Number of Firm
Shares to be
Underwriters Purchased
- ------------ --------------
William Blair & Company, L.L.C.
Dain Bosworth Incorporated
---------
Total: 1,100,000
SCHEDULE B
Number of Firm Number of Option
Shares to be Sold Shares to be Sold
----------------- -----------------
Selling Stockholders:
Peter J. Cohen Grantor Trust 296,962 44,542
George W. Cole 178,454 26,768
Richard A. Daniels Grantor
Retained Annuity Trust 252,808 37,922
Terrence Meehan 118,968 17,846
Kevin O'Brien 118,968 17,846
Jayandra Patel 133,840 20,076
------- ------
Total: 1,100,000 165,000
========= =======
SCHEDULE C
Comfort Letter of Deloitte & Touche LLP
(1) They are independent public accountants with respect to the Company
and its subsidiaries within the meaning of the 1933 Act.
(2) In their opinion the consolidated financial statements of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement and the consolidated financial statements of the Company
from which the information presented under the caption "Selected Consolidated
Financial Data" has been derived, which are stated therein to have been examined
by them, comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the Exchange Act.
(3) On the basis of specified procedures (but not an audit in
accordance with generally accepted auditing standards), including inquiries of
certain officers of the Company and its subsidiaries responsible for financial
and accounting matters as to transactions and events subsequent to __________,
199_, a reading of minutes of meetings of the stockholders and directors of the
Company and its subsidiaries since _____________, 199_, a reading of the latest
available interim unaudited consolidated financial statements of the Company and
its subsidiaries (with an indication of the date thereof) and other procedures
as specified in such letter, nothing came to their attention which caused them
to believe that (i) the unaudited consolidated financial statements of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement do not comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the Exchange Act or
that such unaudited financial statements are not fairly presented in accordance
with generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included in the
Registration Statement, and (ii) at a specified date not more than five days
prior to the date thereof in the case of the first letter and not more than two
business days prior to the date thereof in the case of the second letter, there
was any change in the capital stock or long-term debt or short-term debt (other
than normal payments) of the Company and its subsidiaries on a consolidated
basis or any decrease in consolidated net current assets or consolidated
stockholders' equity as compared with amounts shown on the latest unaudited
balance sheet of the Company included in the Registration Statement or for the
period from the date of such balance sheet to a date not more than five days
prior to the date thereof in the case of the first letter and not more than two
business days prior to the date thereof in the case of the second letter, there
were any decreases, as compared with the corresponding period of the prior year,
in consolidated net sales, consolidated income before income taxes or in the
total or per share amounts of consolidated net income except, in all instances,
for changes or decreases which the Prospectus discloses have occurred or may
occur or which are set forth in such letter.
(4) They have carried out specified procedures, which have been agreed
to by the Representative, with respect to certain information in the Prospectus
specified by the Representative, and on the basis of such procedures, they have
found such information to be in agreement with the general accounting records of
the Company and its subsidiaries.