BENTLEY PHARMACEUTICALS, INC.
6,000 Units
Each Consisting of one One Thousand Dollar ($1,000) Principal Amount
12% Convertible Senior Subordinated Debenture Due February ___, 2006
and
1,000 Class A Redeemable Warrants each to Purchase One Share of
Common Stock and One Class B Redeemable Warrant
UNDERWRITING AGREEMENT
___________ __, 1996
XXXXXXX AND COMPANY SECURITIES, INC.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs or Madams:
Bentley Pharmaceuticals, Inc., a Florida corporation (the "Company"),
hereby confirms its agreement with Xxxxxxx and Company Securities, Inc. (the
"Underwriter") for the issuance of the Units described herein under the terms
and conditions contained herein.
The Company proposes to issue and sell to the Underwriter an aggregate of
6,000 Units ("Firm Units"), each consisting of one of the Company's $1,000
principal amount 12% Convertible Senior Subordinated Debentures due February __,
2006 (the "Debentures") and 1,000 Class A Redeemable Warrants (the "Class A
Warrants") each for the purchase of one share of the common stock of the
Company, par value $.02 per share (the "Common Stock"), and one Class B
Redeemable Warrant (the "Class B Warrants"). The Debentures, which are
unsecured, are convertible prior to maturity, unless previously redeemed, at any
time commencing twelve months after the date hereof (the "Anniversary Date") or
immediately following a notice of redemption (as defined in the Prospectus dated
February __, 1996) into shares of the Common Stock at a conversion price per
share of the lesser of $3.00 or 80% of the average closing price of the Common
Stock on the American Stock Exchange for the 20 consecutive trading days
immediately preceding the Anniversary Date, or earlier upon a notice of
redemption. Interest is payable quarterly. Commencing six months after the date
hereof and with the Underwriter's consent, the Company may, on 30 days prior
written notice, redeem the Debentures, in whole or in part, if the closing
price of the Common Stock on the American Stock Exchange for each of the 20
consecutive trading days immediately preceding the record date for redemption
equals or exceeds $7.00 per share. The redemption price will be 105% of the
principal amount of the Debentures or $1,050 per Debenture plus accrued interest
through the date of redemption. The conversion price per share during the period
following the notice of redemption, if prior to the Anniversary Date, will be
the lesser of $3.00 or 80% of the average closing price of the Common Stock on
the American Stock Exchange for the 20 consecutive trading days immediately
preceding the record date for redemption.
Each Class A Warrant entitles the holder, at any time for a period of three
years from the date hereof but not prior to the Separation Date (as defined
below), to purchase one share of Common Stock and one Class B Warrant at a price
of $3.00 per share. On or after the Separation Date, on 30 days prior written
notice, the Company may redeem all of the Class A Warrants for $.05 per Warrant
if the per share closing price for the underlying Common Stock on the American
Stock Exchange for each of the 20 consecutive trading days immediately preceding
the record date for redemption equals or exceeds 150% of the then exercise
price. Two Class B Warrants, together, entitle a holder, for a period of five
years from the date hereof, to purchase one share of Common Stock at a price of
$5.00 per share. On or after the Separation Date, on 30 days prior written
notice, the Company may redeem all of the Class B Warrants for $.05 per Warrant
if the per share closing price for the underlying Common Stock on the American
Stock Exchange for each of the 20 consecutive trading days immediately preceding
the record date for redemption equals or exceeds 130% of the then exercise
price. As used in this Agreement the term "Warrants" shall include the Class A
Warrants and the Class B Warrants.
The conversion price of the Debentures and the exercise prices of the
Warrants are subject to adjustment under certain circumstances. The Debentures
and the Warrants may not be detached for six months after the date hereof
without the prior written consent of the Underwriter after which the Debentures
and the Warrants shall be separately transferable (such date is referred to
herein as the "Separation Date").
In addition, solely for the purpose of covering over-allotments, the
Company proposes to grant to the Underwriter a 30-day option from the effective
date of the Registration Statement, as defined below, to purchase up to 900
additional Units (the "Option Units"). As used in this Agreement, the term
"Units" shall include the Firm Units and Option Units.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents,
warrants to and agrees with the Underwriter that:
(a) A registration statement on Form S-1 (Reg. No. 33-65125) with
respect to the Units, including a prospectus subject to completion, has been
filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), and the
applicable rules and regulations (the "Rules and Regulations"), and one or more
amendments to that registration statement may have been so filed. Copies of such
registration statement and of each amendment heretofore filed by the Company
with the Commission
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have been delivered to the Underwriter. After the execution of this Agreement,
the Company will file with the Commission either (i) if the registration
statement, as it may have been amended, has been declared by the Commission to
be effective under the Act, a prospectus in the form most recently included in
that registration statement (or, if an amendment thereto shall have been filed,
in such amendment), with such changes or insertions as are required by Rule 430A
under the Act or permitted by Rule 424(b) under the Act, or (ii) if that
registration statement, as it may have been amended, has not been declared by
the Commission to be effective under the Act, an amendment to that registration
statement, including a form of prospectus. As used in this Agreement, the term
"Registration Statement" means that registration statement, as amended at the
time it was or is declared effective, and any amendment thereto that was or is
thereafter declared effective, including all financial schedules and exhibits
thereto and any information omitted therefrom pursuant to Rule 430A under the
Act and included in the Prospectus (as hereinafter defined); the term
"Preliminary Prospectus" means each prospectus subject to completion filed with
that registration statement or any amendment thereto (including the prospectus
subject to completion, if any, included in the Registration Statement at the
time it was or is declared effective); and the term "Prospectus" means the
prospectus first filed with the Commission pursuant to Rule 424(b) under the Act
or, if no prospectus is so filed pursuant to Rule 424(b), the prospectus
included in the Registration Statement. The Company has caused to be delivered
to the Underwriter copies of each Preliminary Prospectus and has consented to
the use of those copies for the purposes permitted by the Act.
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus or instituted proceedings for
such purpose. When the Registration Statement was or is declared effective, it
(i) contained or will contain all statements required to be stated therein in
accordance with, and complied or will comply with the requirements of, the Act
and the Rules and Regulations of the Commission thereunder in all material
respects and (ii) did not or will not include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. When the Prospectus and each amendment or supplement thereto is
filed with the Commission pursuant to Rule 424(b) (or, if the Prospectus or such
amendment or supplement is not required so to be filed, when the Registration
Statement containing such Prospectus or amendment or supplement thereto was or
is declared effective) and on the Firm Closing Date and any Option Closing Date
(as each such term is hereinafter defined), the Prospectus, as amended or
supplemented at any such time, (i) contained or will contain all statements
required to be stated therein in accordance with, and complied or will comply
with the requirements of, the Act and the rules and regulations of the
Commission thereunder in all material respects and (ii) did not or will not
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The foregoing
provisions of this paragraph (b) do not apply to statements or omissions made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by the Underwriter specifically for use
therein. The Company has not distributed and will not distribute any offering
material in connection with the offering or sale of the
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Units other than the Registration Statement, any Preliminary Prospectus, the
Prospectus or other materials, if any, permitted by the Act.
(c) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the state of Florida and is
duly qualified to transact business as a foreign corporation and is in good
standing in each jurisdiction, both domestic and foreign, where the ownership or
leasing of its property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect to the Company. The Company has all requisite corporate
power and authority to own or lease its property and conduct its business
described in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
(d) The Company does not own, directly or indirectly, any capital
stock of any corporation, any interest in any partnership, joint venture or
limited liability Company or any other equity interest or participation in any
other person, other than as described in Exhibit 21.1 as incorporated in the
Registration Statement (each of which, a "Subsidiary"). Each Subsidiary has been
duly chartered and organized and is validly existing in good standing under the
laws of the jurisdiction of its formation, and has all requisite corporate power
and authority to own or lease its property and conduct its business as described
in the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus). Each Subsidiary is duly
qualified to transact business as a foreign corporation and is in good standing
in each jurisdiction, both domestic or foreign, where the ownership or leasing
of its property or the conduct of its business requires such qualification,
except where the failure to be so qualified would not have a material adverse
effect to the Company. Complete and correct copies (including translations into
the English language for documents not initially in the English language) of the
certificate of incorporation and the by-laws (or other charter documents) of the
Company and each of its Subsidiaries, and all amendments thereto, have been
delivered to the Underwriter, and no changes therein will be made subsequent to
the date hereof and prior to the Firm Closing Date or, if later, the Option
Closing Date.
(e) The Company has all requisite corporate power and authority to
enter into and perform its obligations under this Agreement. The execution and
delivery of this Agreement have been duly authorized by all necessary corporate
action on the part of the Company and this Agreement has been duly executed and
delivered by the Company and is a valid and binding Agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and other similar laws affecting creditors'
rights generally and to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), and except as
rights to indemnity and contribution under this Agreement may be limited by
applicable law or principals of public policy. The issuance, offering and sale
by the Company to the Underwriter of the Units pursuant to this Agreement, the
compliance by the Company with the provisions of this Agreement and the
consummation of the other transactions contemplated in this Agreement do not (i)
require the consent, approval, authorization, registration or qualification of
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or with any court or governmental or regulatory authority, except such as have
been obtained, such as may be required under state securities or blue sky laws
and, if the registration statement filed with respect to the Units (as amended)
is not effective under the Act as of the time of execution hereof, such as may
be required (and shall be obtained as provided in this Agreement) under the Act,
and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
(ii) result in the creation or imposition of any material lien, charge or
encumbrance upon any of the assets of the Company or any subsidiaries pursuant
to the terms or provisions of, or conflict with or result in a breach or
violation of, or constitute a default under, any material contract, indenture,
mortgage, deed of trust, loan agreement, note, lease or other agreement or
instrument to which the Company or any Subsidiary is a party or by which the
Company or any Subsidiary or any of its respective property is bound or subject,
or the certificate of incorporation (including the statement of designations for
the outstanding preferred stock (the "Preferred Stock") of the Company) or
by-laws of the Company or the charter of any Subsidiary, or any statute or any
rule, regulation, judgment, decree, or order of any court or other governmental
or regulatory authority or any arbitrator applicable to the Company or any
Subsidiary.
(f) The Company has an authorized, issued and outstanding capitali-
zation as set forth in the Prospectus under the caption "Capitalization" (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus). All
of the issued shares of capital stock of the Company have been duly authorized
and validly issued and are fully paid, nonassessable and free of preemptive
rights. There are no outstanding options, warrants or other rights granted by
the Company to purchase shares of its Common Stock or other securities or
obligations convertible into shares of its Common Stock or into debt securities
other than as described in the Prospectus (and, if the Prospectus is not in
existence, the most recent Preliminary Prospectus). The Units, Debentures and
Warrants have been duly authorized by all necessary corporate action on the part
of the Company and, when issued and delivered to and paid for by the Underwriter
pursuant to this Agreement, will be validly issued, fully paid, nonassessable
and free of preemptive rights, and the Debentures and Warrants will constitute
legal, valid and binding obligations of the Company enforceable in accordance
with their respective terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally or by equitable principles relating to the availability of
remedies. The Common Stock issuable upon conversion of the Debentures and upon
the exercise of the Warrants has been duly authorized and reserved by the
Company and, when issued, as provided for in the Debentures or the Warrants,
will be duly and validly issued, fully paid and nonassessable. No holder of
outstanding securities of the Company is entitled as such to any preemptive or
other right to subscribe for any of the Units. The Company has duly given notice
to all persons entitled to have securities registered by the Company under the
Registration Statement. The Company has reserved an aggregate of 15,305,526
shares of Common Stock for issuance upon exercise or conversion, as applicable,
of outstanding options, warrants and convertible securities.
(g) The capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), and the
descriptions correctly state the material aspects of the
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Debentures and Warrants as contemplated by the offering of the Units. Since the
inception of the Company in February of 1974, all issuances of the equity and
debt securities of the Company were effected pursuant to valid private offerings
exempt from registration under the Act or registered for offer and sale under
the Act. Since January 1, 1994, no compensation was paid to or on behalf of any
member of the National Association of Securities Dealers, Inc. ("NASD"), or any
affiliate or employee thereof, in connection with any such private offering,
except as previously disclosed in writing to the Underwriter.
(h) No consent, approval, authorization or order of, or any filing
or declaration with, any stockholder of the Company or any court or governmental
agency or body is required for the consummation by the Company of the
transactions on its part contemplated herein, except such as have been obtained
under the Act or the Rules and Regulations and such as may be required under
state securities or blue sky laws or the by-laws and rules of the NASD, the
American Stock Exchange or the Pacific Stock Exchange.
(i) The consolidated financial statements of the Company included
in the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus) fairly present the
consolidated financial position of the Company as of the dates indicated and the
consolidated results of operations of the Company for the periods specified.
Such financial statements have been prepared in accordance with United States
generally accepted accounting principles, consistently applied throughout the
periods involved. The selected financial data set forth under the caption
"Selected Financial Data" and the summary financial data set forth under the
caption "Prospectus Summary - Summary Consolidated Financial Information" in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present, on the basis stated in the Prospectus
(or such Preliminary Prospectus), the information included therein. No other
financial statements or schedules are required to be in the Registration
Statement.
(j) Deloitte & Touche LLP and Price Waterhouse LLP (collectively,
the "Accountants"), each of which has certified certain financial statements of
the Company and delivered its respective report with respect to the financial
statements and schedules as specified and included in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), are independent public accountants with respect to the
Company as required by the Act and the applicable rules and regulations
thereunder. The statements in the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary Prospectus)
pursuant to Items 304 and 509 of Regulation S-X of the Rules and Regulations are
true and correct in all material respects.
(k) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus), (i) except as otherwise
contemplated therein, there has been no material adverse change in the business,
operations, condition (financial or otherwise), results of operations or
prospects of the Company and its Subsidiaries considered as a whole, whether or
not arising in
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the ordinary course of business, (ii) except as otherwise stated therein, there
have been no transactions entered into by the Company and its Subsidiaries and
no commitments made by the Company and its Subsidiaries that, individually or in
the aggregate, are material with respect to the Company and its Subsidiaries,
(iii) except as otherwise stated therein, there has not been any obligation,
direct or contingent, incurred by the Company or its Subsidiaries, except
obligations in the ordinary course of business, (iv) except as otherwise stated
therein, there has not been any change in the capital stock or indebtedness of
the Company, and (v) there has been no dividend or distribution of any kind
declared, paid or made by the Company or any of its Subsidiaries in respect of
any class of its capital stock.
(l) No material legal or governmental proceedings, domestic or
foreign (including under any environmental laws), civil, administrative or
criminal, are pending to which the Company or any Subsidiary is a party or to
which the property of the Company or any Subsidiary or any of their respective
officers is subject and to the Company's knowledge, no such proceedings have
been threatened against the Company or any Subsidiary or with respect to any of
its property, except as such are described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus). No
contract or other document of the Company or any Subsidiary is required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to or incorporated in the Registration Statement that is not described
therein (or, if the Prospectus is not in existence, in the most recent
Preliminary Prospectus) or filed as required.
(m) Neither the Company nor any Subsidiary is (i) in violation of
its certificate of incorporation (or charter) or by-laws, (ii) in violation in
any material respect of any law, statute, regulation, ordinance, rule, order,
judgment or decree of any court or any governmental or regulatory authority
applicable to the Company or any Subsidiary, or (iii) in default in any material
respect in the performance or observance of any obligation, agreement, covenant
or condition contained in any material contract, indenture, mortgage, deed of
trust, loan agreement, note, debenture, lease or other agreement or instrument
to which the Company or any Subsidiary is a party or by which it or any of its
property may be bound or subject.
(n) The Company and each Subsidiary owns or possesses adequate
rights to use all intellectual property, including all U.S. and foreign patents,
trademarks, service marks, trade names, copyrights, inventions, know-how, trade
secrets, proprietary technologies, processes and substances, or applications or
licenses therefor, that are described in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), and any other
rights or interests in items of intellectual property as are necessary for the
conduct of the business now conducted or proposed to be conducted by it as
described in the Prospectus (or, such Preliminary Prospectus); and, neither the
Company nor any Subsidiary is aware of the granting of any patent rights to, or
the filing of applications therefor by, others, nor is the Company nor any
Subsidiary aware of, nor has the Company nor any Subsidiary received notice of,
infringement of or conflict with asserted rights of others with respect to any
of the foregoing. All such intellectual property rights and interests are (i)
valid and enforceable and (ii) to the knowledge of the Company, not being
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infringed by any third parties in a manner that would have a material adverse
effect on the Company.
(o) The Company and each Subsidiary possesses adequate licenses,
orders, authorizations, approvals, certificates or permits issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
(including those related to enforcement of environmental laws) necessary to
conduct its business as described in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), and, except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), there
are no pending or, to the knowledge of the Company, threatened, proceedings
relating to the revocation or modification of any such license, order,
authorization, approval, certificate or permit which would have a material
adverse effect on the Company.
(p) The Company and each Subsidiary has good and marketable title
to, or valid and enforceable leasehold estates in, all of the properties and
assets reflected in the Company's consolidated financial statements or as
described in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), subject
to no lien, mortgage, pledge, charge or encumbrance of any material nature,
except as reflected in such financial statements or as described in the
Registration Statement and the Prospectus (and such Preliminary Prospectus) and
liens for taxes not yet due and payable, except where such liens shall not have
a material adverse effect upon the Company. The Company and each Subsidiary
occupies its leased properties under valid and enforceable leases conforming to
the description thereof set forth in the Registration Statement and the
Prospectus (or such Preliminary Prospectus). The agreements to which the Company
or any of its Subsidiaries are parties described in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) have been duly authorized, executed and delivered by the
Company or such Subsidiary, are valid and binding agreements, enforceable by the
Company and its Subsidiaries (as applicable), except (i) as the enforcement
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws relating to or affecting
creditors' rights generally or by general equitable principles and (ii) as is
otherwise disclosed in the Registration Statement and Prospectus.
(q) The Company is not subject to registration as an "investment
Company" under the Investment Company Act of 1940.
(r) No labor dispute with the employees of the Company or any
Subsidiary exists, or to the Company's knowledge, is threatened or imminent that
could result in a material adverse change in the condition (financial or
otherwise), business, prospects, net worth or results of operations of the
Company or any Subsidiary.
(s) The Company and each of its Subsidiaries has filed all
necessary federal, state, local and foreign income, franchise sales, use,
employee withholding and other tax returns relating to the operations of the
Company and its Subsidiaries and all taxes shown as due
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thereon have been paid; and the Company has no knowledge of any tax deficiency
which has been or might be asserted or threatened against the Company or any of
its Subsidiaries which could have a material adverse effect on the Company and
its Subsidiaries taken as a whole or their business, properties, business
prospects, condition (financial or otherwise) or results of operations, and
except to the extent that such any such taxes are being contested in good faith
by the Company and adequately reserved against and other than taxes which have
been accrued on the books of the Company.
(t) All material transactions between any of the Company and
its Subsidiaries, on the one hand, and any of the officers, directors and key
employees of the Company and its Subsidiaries have been accurately and fully
disclosed in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus).
(u) The Company and each Subsidiary is insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which it is engaged;
neither the Company nor any Subsidiary has been refused any material insurance
coverage sought or applied for, and the Company has no reason to believe that it
will not be able to renew its and each Subsidiary's existing insurance coverage
as and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that would not
materially and adversely affect the condition (financial or otherwise),
business, prospects, net worth or results of operations of the Company or any
Subsidiary, except as described in or contemplated by the Prospectus (and, if
the Prospectus is not in existence, the most recent Preliminary Prospectus).
(v) The Common Stock is registered pursuant to Section 12(b)
of the Exchange Act and is listed on the American Stock Exchange, 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
termination of listing of the Common Stock on the American Stock Exchange, nor
has the Company received any notification that the Commission or the American
Stock Exchange is contemplating terminating such registration or listing except
as set forth in the Prospectus (or, if the Prospectus is not in existence, in
the Preliminary Prospectus). The Units, Debentures and Warrants are eligible for
listing on the American Stock Exchange, and will be so listed as of the
effective date of the Registration Statement.
(w) Neither the Company nor any of its Subsidiaries, nor, to the
Company's knowledge, any of their employees, officers, directors or agents, has
at any time during the last five (5) years (i) made any unlawful contribution to
any candidate for foreign office or failed to disclose fully any contribution in
violation of law, or (ii) made any payment to any federal or state governmental
officer or official, or other person charged with similar public or quasi-public
duties, other than payments required or permitted by the laws of the United
States or any jurisdiction thereof.
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(x) Neither the Company nor any of its officers or directors has
taken and will take, directly or indirectly, any action designed to or that
might reasonably be expected to cause or result in stabilization or manipulation
of the price of the Common Stock to facilitate the sale or resale of the Units.
(y) The Company and each of its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with United States generally
accepted accounting principles and to maintain accountability for assets, (iii)
access to assets is permitted only in accordance with management's general or
specific authorization, and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(z) No person has acted as a finder in connection with the
transactions contemplated herein and the Company will indemnify the Underwriter
with respect to any claim for finder's fees in connection herewith. The Company
has no management or financial consulting agreements with anyone. No promoter,
officer, director or stockholder of the Company is, directly or indirectly,
associated with an NASD member, except as has been previously disclosed in
writing to the Underwriter.
(aa) No statement, representation, warranty or covenant made by the
Company in this Agreement or made in any certificate or document required by
this Agreement to be delivered to the Underwriter was, or will be when made,
inaccurate, untrue or incorrect.
2. PURCHASE, SALE AND DELIVERY OF THE UNITS.
(a) On the basis of the representations, warranties, agreements
and covenants herein contained and subject to the terms and conditions herein
set forth, the Company agrees to issue and sell to the Underwriter, and the
Underwriter agrees to purchase from the Company, the Firm Units at a purchase
price of $900.00 per Firm Unit.
(b) One or more certificates in definitive form for the Firm Units
that the Underwriter has agreed to purchase hereunder, and in such denomination
or denominations and registered in such name or names as the Underwriter
requests upon notice to the Company at least 48 hours prior to the Firm Closing
Date, shall be delivered by or on behalf of the Company to the Underwriter for
the account of the Underwriter, against payment by or on behalf of the
Underwriter of the purchase price therefor by certified or official bank check
or checks drawn upon or by a New York Clearing House bank and payable in
next-day funds to the order of the Company. Such delivery of and payment for the
Firm Units shall be made at the offices of Xxxx & Priest LLP, 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx at 9:30 A.M., New York time, on
______________________, 1996 or at such other place, time or date as the Company
and the Underwriter may agree upon, such time and date of delivery against
payment being herein referred to as the "Firm Closing Date." The
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Company will make such certificate or certificates for the Firm Units available
for checking and packaging by the Underwriter at the offices in New York, New
York of the Company's transfer agent and registrar at least 24 hours prior to
the Firm Closing Date.
(c) For the purpose of covering any over-allotments in connection
with the distribution and sale of the Firm Units as contemplated by the
Prospectus, the Company hereby grants to the Underwriter an option to purchase
any or all of the Option Units. The purchase price to be paid for any of the
Option Units shall be the same price per Unit as the price per Unit for the Firm
Units set forth above in paragraph (a) of this Section 2. The option granted
hereby may be exercised as to all or any part of the Option Units from time to
time within 30 days after the date of the Prospectus. The Underwriter shall not
be under any obligation to purchase any of the Option Units prior to the
exercise of such option. The Underwriter may from time to time exercise the
option granted hereby by giving notice in writing to the Company setting forth
the aggregate number of Option Units to be exercised and the date and time for
delivery of and payment for such Option Units. Any such delivery date shall not
be later than three business days after such notice of exercise and, in any
event, shall be no earlier than the Firm Closing Date. The time and date set
forth in such notice, or such other time on such other date as the Underwriter
and the Company may agree upon, is herein called the "Option Closing Date" with
respect to such Option Units. Upon exercise of the option as provided herein,
the Company shall become obligated to sell to the Underwriter, and, subject to
the terms and conditions herein set forth, the Underwriter shall become
obligated to purchase from the Company, the Option Units as to which the
Underwriter is then exercising its respective option. The number of Option Units
may be adjusted to avoid fractional shares. If the option is exercised as to all
or any portion of the Option Units, one or more certificates in definitive form
for such Option Units, and payment therefor, shall be delivered on the related
Option Closing Date in the manner, and upon the terms and conditions, set forth
in paragraph (b) of this Section 2, except that reference therein to the Units
and the Firm Closing Date shall be deemed, for purposes of this paragraph (c),
to refer to such Option Units and Option Closing Date, respectively.
3. OFFERING BY THE UNDERWRITER. The Underwriter shall offer the Firm Units
for sale to the public upon the terms set forth in the Prospectus. If the option
set forth in Section 2(c) of this Agreement is exercised, then the Underwriter
shall offer the Option Units for sale to the public upon the terms set forth in
the Prospectus.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Underwriter that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of this
Agreement, to become effective as promptly as possible. If required, the Company
will file the Prospectus and any amendment or supplement thereto with the
Commission in the manner and within the time period required by Rule 424(b)
under the Act. During any time when a prospectus relating to the Units is
required to be delivered under the Act, the Company (i) will comply with all
requirements imposed upon it by the
- 11 -
Act and the Rules and Regulations of the Commission thereunder to the extent
necessary to permit the continuance of sales or of dealings in the Units in
accordance with the provisions hereof and of the Prospectus, as then amended or
supplemented, and (ii) will not file with the Commission any prospectus or
amendment referred to in the first sentence of Section 1(a) hereof, any
amendment or supplement to such prospectus or any amendment to the Registration
Statement as to which the Underwriter shall not previously have been advised and
furnished with a copy for a reasonable period of time prior to the proposed
filing and as to which filing the Underwriter shall not have given its consent.
The Company will prepare and file with the Commission, in accordance with the
Rules and Regulations of the Commission, promptly upon request by the
Underwriter or counsel to the Underwriter, any amendments to the Registration
Statement or amendments or supplements to the Prospectus that may be necessary
or advisable in connection with the distribution of the Units by the
Underwriter, and will use its best efforts to cause any such amendment to the
Registration Statement to be declared effective by the Commission as promptly as
possible. The Company will advise the Underwriter, promptly after receiving
notice thereof, of the time when the Registration Statement or any amendment
thereto has been filed or declared effective or the Prospectus or any amendment
or supplement thereto has been filed and will provide evidence satisfactory to
the Underwriter of each such filing or effectiveness.
(b) The Company will advise the Underwriter, promptly after
receiving notice or obtaining knowledge thereof, of (i) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, (ii) the
suspension of the qualification of the Units, Debentures or Warrants for
offering or sale in any jurisdiction, (iii) the institution, threat or
contemplation of any proceeding for any such purpose or (iv) any request made by
the Commission for amending the Registration Statement, for amending or
supplementing the Prospectus or for additional information. The Company will use
its best efforts to prevent the issuance of any such stop order and, if any such
stop order is issued, to obtain the withdrawal thereof as promptly as possible.
(c) The Company will, in cooperation with counsel to the
Underwriter, arrange for the qualification of the Units (including the
Debentures and Warrants) for offering and sale under the securities or blue sky
laws of such jurisdictions as the Underwriter may designate and will continue
such qualifications in effect for as long as may be necessary to complete the
distribution of the Units; provided, however, that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to execute
a general consent to service of process in any jurisdiction. In each
jurisdiction in which the Units, Debentures and Warrants shall have qualified or
are exempt from such qualification, the Company will make and file such
statements and reports in each year as are or may be required by the laws of
such jurisdiction.
(d) If, at any time when a prospectus relating to the Units is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
- 12 -
they were made, not misleading, or if for any other reason it is necessary at
any time to amend or supplement the Prospectus to comply with the Act or the
Rules or Regulations of the Commission thereunder, the Company will promptly
notify the Underwriter thereof and, subject to Section 4(a) hereof, will prepare
and file with the Commission, at the Company's expense, an amendment to the
Registration Statement or an amendment or supplement to the Prospectus that
corrects such statement or omission or effects such compliance.
(e) The Company will, without charge, provide to the Underwriter
and to counsel for the Underwriter (i) as many signed copies of the Registration
Statement originally filed with respect to the Units and each amendment thereto
(in each case including exhibits thereto) as the Underwriter may reasonably
request, (ii) as many conformed copies of such Registration Statement and each
amendment thereto (in each case without exhibits thereto) as the Underwriter may
reasonably request and (iii) so long as a prospectus relating to the Units is
required to be delivered under the Act, as many copies of each Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto as the
Underwriter may reasonably request.
(f) The Company will apply the net proceeds from the sale of the
Units as set forth under "Use of Proceeds" in the Prospectus.
(g) If, at the time that the Registration Statement becomes
effective, any information shall have been omitted therefrom in reliance upon
Rule 430A under the Act, then immediately following the execution of this
Agreement, the Company will prepare, and file or transmit for filing with the
Commission in accordance with such Rule 430A and Rule 424(b) under the Act,
copies of the Prospectus including the information omitted in reliance on Rule
430A, or, if required by such Rule 430A, a post-effective amendment to the
Registration Statement (including an amended Prospectus), containing all
information so omitted.
(h) The Company will file with the American Stock Exchange or such
other exchange on which its securities are listed all documents and notices that
are required, respectively, of companies with securities that are listed on such
Exchanges. The Company will use its best efforts to cause Units, Debentures and
Class A Warrants to maintain their listing on the American Stock Exchange under
the symbols "BNTU," "BNTD" and "BNTA," respectfully. Additionally, once a
sufficient number of Class B Warrants are outstanding, the Company will use its
best efforts to cause, such Warrants to be listed on the American Stock Exchange
under the symbol "BNTB."
(i) During a period of three years commencing with the Firm Closing
Date, the Company will furnish to the Underwriter, at the Company's expense,
copies of (i) all periodic and special reports furnished to stockholders of the
Company and (ii) all information, documents and reports filed by the Company
with the Commission.
(j) Prior to the Firm Closing Date, the Company will deliver
to the Underwriter a reasonably detailed budget covering the period from the
Firm Closing Date to the end
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of the Company's first fiscal year following the Firm Closing Date. In addition,
during the next succeeding two fiscal years, the Company will supply the
Underwriter, not less than 30 days after the beginning of each fiscal year, with
a budget for such fiscal year. For each period covered by a budget to be
supplied to the Underwriter, the Company will also supply financial statements
prepared in sufficient detail so as to allow comparison to the budgets.
(k) For a period of three years after the effective date of the
Registration Statement, the Company will continue to retain Deloitte & Touche
LLP or other nationally recognized independent certified public accountants
reasonably satisfactory to the Underwriter.
(l) The Company has appointed American Stock Transfer & Trust
Company as transfer agent for the Units, Debentures and Warrants and as trustee,
paying agent and conversion agent for the Debentures, subject to the Closing.
The Company will not change or terminate such appointments or the prior
appointment of Chemical Mellon Shareholder Services as the transfer agent and
registrar for the Common Stock for a period of three years from the Firm Closing
Date without first obtaining the written consent of the Underwriter, which
consent shall not be unreasonably withheld, except it may substitute American
Stock Transfer & Trust Company as transfer agent and registrar for the Common
Stock. For a period of five years after the Firm Closing Date, the Company shall
cause the respective transfer agents to deliver promptly to the Underwriter a
duplicate copy of the daily transfer sheets relating to trading, if any, of the
Units, Debentures, Warrants and Common Stock.
(m) The Company shall, prior to the Firm Closing Date, register the
Units, Debentures and Warrants under Section 12 of the Exchange Act.
(n) The Company shall cause Deloitte & Touche LLP to deliver to the
Underwriter, on the date the Registration Statement is declared effective and at
the closing(s) hereunder, the letter referred to in Section 6(d).
(o) If at any time after the Registration Statement becomes
effective until the date the Underwriter advises the Company that the
distribution of the Units has been completed (which in the absence of express
notice will be deemed to be the Option Closing Date or the termination or
expiration of the over-allotment option), any rumor in any financial market or
any publication or event shall occur, in each case relating to or affecting the
Company, as a result of which in the opinion of the Underwriter the market price
of the Common Stock has been or is likely to be materially affected (regardless
of whether such rumor, publication or event necessitates a supplement to or
amendment of the Prospectus), the Company will, after written notice from the
Underwriter advising the Company to the effect set forth above, forthwith
prepare, consult with the Underwriter concerning the substance of and
disseminate a press release or other public statement, reasonably satisfactory
to the Underwriter, responding to or commenting on such rumor, publication or
event.
- 14 -
(p) During the period of 180 days after the date of this Agreement,
the Company will not at any time, directly or indirectly, take any action
designed to or that will constitute, or that might reasonably be expected to
cause or result in, the stabilization of the price of the Common Stock to
facilitate the sale or resale of any of the Units, Debentures, Warrants or
Common Stock.
(q) For a period of three years following the Firm Closing Date,
the Company will permit a representative of the Underwriter to observe the
meetings of the Company's board of directors. The Company will reimburse that
representative for all reasonable expenses incurred in attending board meetings,
including but not limited to food, transportation and lodging. During that
three-year period, the Company will hold no less than four formal and "in
person" meetings of its board of directors each year at which meetings and any
other meetings of the board of directors during such time period, the
representative will be invited to attend and minutes shall be taken. The Company
shall provide to such representative copies of all management reports, financial
and operating information, draft and final minutes of meetings, notices of
meetings and other documents and information as are provided to the board of
directors in connection with any meeting thereof or action by written consent
thereof, concurrently with the delivery of such information and documents to the
directors.
(r) Prior to the 90th day after the Firm Closing Date, the Company
will provide the Underwriter and its designees with five bound volumes of the
transaction documents relating to the Registration Statement and the closing(s)
hereunder, in form and substance reasonably satisfactory to the Underwriter.
5. EXPENSES.
(a) The Company shall pay all costs and expenses incident to the
performance of its obligations under this Agreement, whether or not the
transactions contemplated hereby are consummated or this Agreement is terminated
pursuant to Section 9 hereof, including all costs and expenses incident to (i)
the preparation, printing and filing or other production of documents with
respect to the transactions, including any costs of printing the registration
statement originally filed with respect to the Units and any amendment thereto,
any Preliminary Prospectus and the Prospectus and any amendment or supplement
thereto, this Agreement, any selected dealer agreement and any other agreements
and documents governing the underwriting arrangements, and any blue sky
memoranda, (ii) all reasonable and necessary arrangements relating to the
delivery to the Underwriter of copies of the foregoing documents, (iii) the fees
and disbursements of the counsel, the accountants and any other experts or
advisors retained by the Company, (iv) the preparation, issuance and delivery to
the Underwriter of any certificates evidencing the Units, Debentures and
Warrants, including indenture trustee's, warrant agent's, transfer agent's and
registrar's fees or any transfer or other taxes payable thereon, (v) the
qualification of the Units, Debentures and Warrants under state securities and
blue sky laws, including filing fees and fees and disbursements of counsel for
the Underwriter relating thereto (such counsel fees not to exceed $ 15,000) and
any fees and disbursements of local counsel, if any, retained for such purpose,
(vi) the
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filing fees of the Commission, the NASD, and the American Stock Exchange, (vii)
the inclusion of the Units, Debentures, and Warrants on the American Stock
Exchange and, if requested by the Underwriter, in the Standard and Poor's
Corporation Descriptions Manual, (viii) any "road shows" or other meetings with
prospective investors in the Units, including transportation, accommodation,
meal, conference room, audio-visual presentation and similar expenses of the
Underwriter or its representatives or designees (other than as shall have been
specifically approved by the Underwriter to be paid for by the Underwriter),
(ix) the placing of "tombstone advertisements" in reasonable publications
selected by the Underwriter, (x) all bank escrow fees and (xi) all postage and
mailing expenses. In addition to the foregoing, the Company shall reimburse the
Underwriter for its expenses on the basis of a non-accountable expense allowance
in the amount of 3% of the gross offering proceeds to be received by the
Company, $50,000 of which has been paid by the Company to the Underwriter. The
Underwriter hereby acknowledges receipt of such $50,000, which shall be credited
against the non-accountable expense allowance to be paid by the Company. The
unpaid portion of the expense allowance, based on the gross proceeds from the
sale of the Firm Units, shall be deducted from the funds to be paid by the
Underwriter in payment for the Firm Units, pursuant to Section 2 of this
Agreement, on the Firm Closing Date. To the extent any Option Units are sold,
any remaining non-accountable expense allowance based on the gross proceeds from
the sale of the Option Units shall be deducted from the funds to be paid by the
Underwriter in payment for the Option Units, pursuant to Section 2 of this
Agreement, on the Option Closing Date. The Company warrants, represents and
agrees that all such payments and reimbursements will be promptly and fully
made.
(b) Notwithstanding any other provision of this Agreement, if the
Company determines not to proceed with the offering of the Firm Units
contemplated hereby for any reason, or the Underwriter elects to terminate this
Agreement pursuant to Section 9 hereof, the Company agrees that, in addition to
the Company paying its own expenses as described in subparagraph (a) above, (i)
the Company shall reimburse the Underwriter for all of its reasonable
out-of-pocket legal expenses (in addition to blue sky legal fees and expenses
referred to in subparagraph (a) above), and (ii) the Underwriter shall be
entitled to retain the non-accountable expense allowance paid by the Company
pursuant to subparagraph (a) above; provided, however, that the amount retained
pursuant to this clause (ii) shall not exceed the Underwriter's expenses on an
accountable basis to the date of such cancellation and that all unaccounted for
amounts shall be refunded to the Company (excluding blue sky legal fees and
expenses referred to in subparagraph (a) above). Such expenses shall include,
but are not to be limited to, any additional expenses, including, but not
limited to, travel and lodging expenses, postage expenses, duplication expenses,
long-distance telephone and facsimile expenses, and other expenses incurred by
the Underwriter in connection with the proposed offering. If the Company shall
fail to pay any portion of the expenses set forth herein within five (5) days of
receipt of a written request therefor, the Company shall be liable to the
Underwriter for attorneys' fees and costs incurred in the collection of said
amount.
6. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter to purchase and pay for the Firm Units shall be subject, in the
Underwriter's sole discretion, to the accuracy of the representations and
warranties of the Company contained herein
- 16 -
as of the date hereof and as of the Firm Closing Date as if made on and as of
the Firm Closing Date, to the accuracy of the statements of the Company's
officers made pursuant to the provisions hereof, to the performance by the
Company of its covenants and agreements hereunder and to the following
additional conditions:
(a) If the Registration Statement, as heretofore amended, has not
been declared effective as of the time of execution hereof, the Registration
Statement, as heretofore amended or as amended by an amendment thereto to be
filed prior to the Firm Closing Date, shall have been declared effective not
later than 11 A.M., New York time, on the date on which the amendment to such
Registration Statement containing information regarding the initial public
offering price of the Units has been filed with the Commission, or such later
time and date as shall have been consented to by the Underwriter; if required,
the Prospectus and any amendment or supplement thereto shall have been filed
with the Commission in the manner and within the time period required by Rule
424(b) under the Act; 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 threatened or, to the knowledge of the
Company or the Underwriter, shall be contemplated by the Commission; and the
Company shall have complied with any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise).
(b) The Underwriter shall have received an opinion, dated the Firm
Closing Date, of Xxxxxx Xxxxxx Flattau & Klimpl, LLP, counsel to the Company, 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 Florida and is duly qualified to transact business as a foreign corporation
and is in good standing under the laws of each other domestic jurisdiction, in
which its ownership or leasing of any properties or the conduct of its business
requires such qualification and where the failure to so qualify would have a
material adverse effect on the business of the Company. Each Subsidiary which
has been organized in the United States (the "U.S. Subsidiary") has been duly
chartered and organized and is existing in good standing under the laws of the
jurisdiction of its formation. To such counsel's knowledge, the Company does not
have any direct or indirect subsidiary other than the companies incorporated in
Exhibit 21.1. The Company is the sole record and beneficial owner of all of the
capital stock of each of its Subsidiaries.
(2) The Company and each U.S. Subsidiary has full
corporate power to own or lease its property and conduct its business as now
being conducted as described in the Registration Statement and the Prospectus,
and the Company has full corporate power to enter into this Agreement and to
carry out all the terms and provisions hereof to be carried out by it.
(3) To such counsel's knowledge, all of the outstanding
shares of the Company's Common Stock and Preferred Stock have been duly
authorized and such shares are validly issued, fully paid and non assessable.
There are no outstanding options, warrants or other
- 17 -
rights granted by the Company to purchase or convertible into shares of its
Common Stock or other securities of the Company other than as described in the
Prospectus. The Firm Units have been duly authorized by all necessary corporate
action on the part of the Company and, when issued and delivered to and paid for
by the Underwriter pursuant to this Agreement, the Firm Units will be validly
issued, fully paid, nonassessable and to such counsel's knowledge free of
preemptive rights and will conform in all material respects to the description
thereof in the Prospectus, and the Debentures and Warrants will constitute
legal, valid and binding obligations of the Company enforceable in accordance
with their respective terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
similar laws affecting creditors' rights generally or by equitable principles
relating to the availability of remedies. The Common Stock issuable upon
conversion of the Debentures and upon the exercise of the Warrants has been duly
authorized and reserved by the Company and, when issued, as provided for in the
Debentures or the Warrants, will be duly and validly issued, fully paid and
nonassessable and will conform in all material respects to the description
thereof in the Prospectus. To such counsel's knowledge, no holder of outstanding
securities of the Company is entitled as such to any preemptive or other right
to subscribe for any of the Units; and to such counsel's knowledge, no person is
entitled to have securities registered by the Company under the Registration
Statement or otherwise under the Act other than as described in the Prospectus.
(4) The execution and delivery of this Agreement have
been duly authorized by all necessary corporate action on the part of the
Company, for which shareholder approval is not required, and this Agreement has
been duly executed and delivered by the Company, and is a valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and other similar laws
affecting creditors' rights generally and to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law) and except as rights to indemnity and contribution under this Agreement may
be limited by applicable law or public policy.
(5) The authorized, issued and outstanding capital stock
of the Company is as set forth in the Registration Statement and the Prospectus.
The statements set forth under the headings "Description of Debentures" and
"Description of Securities -- Redeemable Warrants" in the Prospectus, insofar as
those statements purport to summarize the terms of the Firm Units (including the
underlying Debentures and Warrants) of the Company, provide a fair summary of
such terms. The statements in the Prospectus, insofar as those statements
constitute matters of law or legal conclusions, or summaries of the contracts
and agreements referred to therein, constitute a fair summary of those matters,
legal conclusions, contracts and agreements and include all material terms
thereof, as applicable.
(6) To such counsel's knowledge, none of (A) the
execution and delivery of this Agreement, (B) the issuance, offering and sale by
the Company to the Underwriter of the Firm Units pursuant to this Agreement, nor
(C) the compliance by the Company with the other provisions of this Agreement
and the consummation of the transactions contemplated hereby,
- 18 -
(i) requires the consent, approval, authorization, registration or qualification
of or with any stockholder of the Company or any court or governmental
authority, except such as have been obtained under the Act and such as may be
required under state securities or blue sky laws or the American and Pacific
Stock Exchanges, or (ii) conflicts with or results in a breach or violation of,
or constitutes a default under, any material contract, indenture, mortgage, deed
of trust, loan agreement, note, debenture, lease or other agreement or
instrument to which the Company or any U.S. Subsidiary is a party or by which
the Company or any U.S. Subsidiary or any of its property is bound or subject,
or the certificate of incorporation, including the designation of the Preferred
Stock, or by-laws of the Company or of any U.S. Subsidiary, or any material
statute or any judgment, decree, order, rule or regulation of any court or other
governmental or regulatory authority known to such counsel which is applicable
to the Company or any U.S. Subsidiary.
(7) To such counsel's knowledge, no legal or govern-
mental proceedings, civil, administrative or criminal, are pending or threatened
to which the Company or any Subsidiary is a party or to which the property of
the Company or any Subsidiary is subject and no contract or other document known
to such counsel is required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement that is
not described therein or filed as required.
(8) Counsel has reviewed all contracts, instruments or
other documents referred to in the Registration Statement and the Prospectus and
such contracts, instruments or other documents are fairly summarized or
disclosed therein in all material respects, and filed as exhibits thereto as
required, and such counsel does not know of any contracts, instruments or other
documents required to be so summarized or disclosed or filed which have not been
so summarized or disclosed or filed.
(9) All descriptions in the Prospectus of U.S. laws,
statutes, licenses, rules, regulations and legal and governmental proceedings
are accurate in all material respects and fairly present the information
required to be shown in all material respects, and, to such counsel's knowledge,
there is no law, statute, license, rule or regulation required to be described
in the Registration Statement and the Prospectus which is not accurately
described in all material respects.
(10) The Company and each U.S. Subsidiary possesses
adequate licenses, orders, authorizations, approvals, certificates or permits
issued by the appropriate federal, state or local regulatory agencies or bodies
necessary to conduct its business in the manner presently being conducted as
described in the Registration Statement and the Prospectus, and, to such
counsel's knowledge, there are no pending or threatened proceedings relating to
the revocation or modification of any such license, order, authorization,
approval, certificate or permit, except as disclosed in the Registration
Statement and the Prospectus.
(11) The Registration Statement is effective under the
Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the
- 19 -
Registration Statement or any amendment thereto has been issued, and to such
counsel's knowledge, no proceedings for that purpose have been instituted or
threatened or, are contemplated by the Commission.
(12) The registration statement originally filed with
respect to the Firm Units and each amendment thereto and the Prospectus (in each
case, other than the financial statements and schedules and other financial and
statistical information contained therein, as to which such counsel need express
no opinion) comply as to form in all material respects with the applicable
requirements of the Act and the Rules and Regulations of the Commission
thereunder.
(13) The Company is not subject to registration as an
"investment Company" under the Investment Company Act of 1940.
(14) The Units, Debentures and Warrants have been
approved for listing on the American Stock Exchange.
In addition, such counsel shall state that counsel has participated in
conferences with officials and other representatives of the Company, the
Underwriter, Underwriter's Counsel and the independent certified public
accountants of the Company, at which such conferences the contents of the
Registration Statement and Prospectus and related matters were discussed, and
although they have not verified the accuracy or completeness of the statements
contained in the Registration Statement or the Prospectus, nothing has come to
the attention of such counsel which leads them to believe that, at the time the
Registration Statement became effective and at all times subsequent thereto up
to and on the Firm Closing Date and on any later date on which Option Units are
to be purchased, as the case may be, the Registration Statement and any
amendment or supplement thereto (other than the financial statements including
supporting schedules and other financial and statistical information derived
therefrom, as to which such counsel need express no comment), 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 at the Firm Closing Date or any later date on which the Option Units are to
be purchased, as the case may be, the Registration Statement, the Prospectus and
any amendment or supplement thereto (except as aforesaid) contained any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deem proper, on certificates of responsible
officers of the Company and public officials, copies of which certificates will
be provided to the Underwriter, and, as to matters of the laws of France and
Spain, as the case may be, shall rely on the opinions of S.C.P. Deidler-de xx
Xxxxxxxx and ________________, special counsel to the Company, respectively, and
shall expressly authorize such reliance, and counsel to the Company shall
expressly state in their opinion that such counsel's and the Underwriter's
reliance upon such opinion is justified.
- 20 -
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion.
(c) The Underwriter shall have received the opinion, dated as of
the Firm Closing Date, of S.C.P. Diedler-de xx Xxxxxxxx, special counsel to the
Company with respect to French law, and of_____________, special counsel to the
Company with respect to Spanish law, in form and substance satisfactory to
counsel for the Underwriter to the effect that:
(i) Each Subsidiary listed on Schedule I thereto was formed in
France or Spain (as the case maybe), is a wholly owned subsidiary of
the Company, has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
organization; and each has full corporate power and authority to own
its properties and conduct its business as described in the
Registration Statement and Prospectus.
(ii) No authorization, approval, consent or license of any French
or Spanish, as the case may be, governmental or regulatory body,
agency or instrumentality is required in connection with the conduct
of business by the Subsidiaries, except as described in the
Prospectus.
(iii) Each respective Subsidiary has obtained all licenses,
permits and other governmental authorizations necessary to conduct its
business as described in the Prospectus; such licenses, permits and
other governmental authorizations obtained are in full force and
effect, and each Subsidiary is in all material respects complying
therewith.
(iv) The Company owns all of the outstanding securities of each
respective Subsidiary; all of each Subsidiary's outstanding securities
have been duly authorized, are validly issued, fully paid and
non-assessable and have not been issued in violation of the preemptive
rights of any security holder.
(v) Each respective Subsidiary has good and marketable title to
its assets and properties, subject to no lien, mortgage, pledge,
charge or encumbrance of any kind, except those reflected in the
financial statements included in the Prospectus.
(vi) Such counsel knows of no pending or threatened legal or
governmental proceedings to which the respective Subsidiary is a party
which could materially adversely affect the business, property,
financial condition or operations of the respective Subsidiary.
(vii) Such counsel is familiar with all material contracts or
other agreements entered into by each respective Subsidiary with other
companies,
- 21 -
individuals, research institutes, academic institutes or governmental
or quasi-governmental agencies referred to in the Registration
Statement and Prospectus, and all such agreements are valid, binding
and enforceable under the respective jurisdiction's law, and to the
knowledge of such counsel, is not in default under any of the
agreements;
(viii) Neither respective Subsidiary is in violation of or
default under its charter or by-laws, or, to the knowledge of such
counsel, in the performance or observance of any material obligation,
agreement, covenant or condition contained in any bond, debenture,
note or other evidence of indebtedness or in any contract, indenture,
mortgage, loan agreement, lease, joint venture or other agreement or
instrument to which the respective Subsidiary is a party or by which
it or any of its properties may be bound, or in violation of any
material order, rule, regulation, writ, injunction or decree of any
government or governmental instrumentality or court, or any law
governing the operations of its business.
(ix) No authorization, approval, consent or license of any
governmental or regulatory body, agency or instrumentality is required
in connection with the transfer of funds, the advancement of funds,
the making of loans or otherwise incurring any indebtedness or the
payment of dividends either from the Company to the respective
Subsidiary or from the respective Subsidiary to the Company.
References to the Registration Statement and the Prospectus in this
paragraph (c) with respect to the letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(d) The Underwriter shall have received from Deloitte & Touche LLP a
letter dated the date the Registration Statement is declared effective and a
letter dated the Firm Closing Date, in form and substance satisfactory to the
Underwriter, to the effect that (i) they are independent public accountants with
respect to the Company within the meaning of the Act and the applicable Rules
and Regulations; (ii) in their opinion, the financial statements examined by
them and included in the Registration Statement and the Prospectus comply as to
form in all material respects with the applicable accounting requirements of the
Act and the applicable Rules and Regulations; (iii) based upon procedures set
forth in detail in such letter, nothing has come to their attention which causes
them to believe that (A) the financial information set forth under "Selected
Financial Data" in the Prospectus was not determined on a basis substantially
consistent with that used in determining the corresponding amounts in the
financial statements included in the Registration Statement or (B) at a
specified date not more than five days prior to the date of this Agreement,
there has been any change in the capital stock of the Company or any increase in
the long-term debt of the Company or any decrease in working capital or net
assets as compared with the amounts shown in the September 30, 1995 balance
sheet included in the Registration Statement or, during the period from October
1, 1995 to a specified date not more than five days prior to the
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date of this Agreement, there were any decreases, as compared with the
corresponding period in the preceding quarter, in revenues, or any increase in
certain specified expense items of the Company, except in all instances for
changes, increases or decreases which the Registration Statement and the
Prospectus disclose have occurred or may occur; and (iv) in addition to the
examination referred to in their opinions and the limited procedures referred to
in clause (iii) above, they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are included in the Registration Statement and
Prospectus and which are specified by the Underwriter, and have found such
amounts, percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company identified in
such letter.
References to the Registration Statement and the Prospectus in this
paragraph (d) with respect to the letters referred to above shall include any
amendment or supplement thereto at the date of such letter.
(e) The Underwriter shall have received on the Firm Closing
Date a certificate of the Company, dated the Firm Closing Date as the case may
be, signed by the Chief Executive Officer and Chief Financial Officer of the
Company, to the effect that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects, as if made on
and as of the Firm Closing Date, and the Company has complied in all
material respects with all the agreements and covenants and satisfied
all the conditions on its part to be performed or satisfied at or
prior to the Firm Closing Date.
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or to the Company's knowledge are pending
or threatened under the Act.
(iii) When the Registration Statement became effective and at all
times subsequent thereto up to the delivery of such certificate, the
Registration Statement and the Prospectus, and any amendments or
supplements thereto, contained all material information required to be
included therein by the Act and the Rules and Regulations thereunder
and in all material respects conformed to the requirements of the Act
and the Rules and Regulations thereunder, the Registration Statement,
and any amendment or supplement thereto, did not and does not include
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, the Prospectus, and any amendment or
supplement thereto, did not and does not include any untrue statement
of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, and, since the effective date of the
Registration Statement, there has occurred no event required to be set
forth in an amended or supplemented Prospectus
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which has not been so set forth, except that no representation need be
made with respect to information provided by or on behalf of the
Underwriter for inclusion in the Prospectus or Registration Statement.
(iv) Subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus, there has not
been (a) any material adverse change in the condition (financial or
otherwise), operations, business or business prospects of the Company
and its Subsidiaries considered as one enterprise, (b) any transaction
that is materially adverse to the Company and its Subsidiaries
considered as one enterprise, except transactions entered into in the
ordinary course of business, (c) any obligation, direct or contingent,
that is material to the Company and its Subsidiaries considered as one
enterprise, incurred by the Company or its Subsidiaries, except (A)
obligations incurred in the ordinary course of business or (B) as
disclosed in or contemplated by the Registration Statement and the
Prospectus, (d) any change in the capital stock or material change in
the outstanding indebtedness of the Company or any of its Subsidiaries
not incurred in the ordinary course of business, (e) any dividend or
distribution of any kind declared, paid or made on the capital stock
of the Company or any of its Subsidiaries, or (f) any loss or damage
(whether or not insured) to the property of the Company or any of its
Subsidiaries which has been sustained or will be sustained which has a
material adverse effect on the condition (financial or otherwise),
operations, business or business prospects of the Company and its
Subsidiaries considered as one enterprise.
(f) The Units, Debentures, Warrants and Common Stock shall be
qualified in such jurisdictions as the Underwriter may reasonably
request pursuant to Section 4(c), and each such qualification shall be
in effect and not subject to any stop order or other proceeding on the
Firm Closing Date.
(g) On or before the Firm Closing Date, the Underwriter and
counsel for the Underwriter shall have received such further
certificates, documents or other information as they may have
reasonably requested from the Company.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Underwriter and counsel
for the Underwriter. The Company shall furnish to the Underwriter such conformed
copies of such opinions, certificates, letters and documents in such quantities
as the Underwriter and counsel for the Underwriter shall reasonably request.
Except as provided for in the following paragraph, the respective
obligations of the Underwriter to purchase and pay for any Option Units shall be
subject, in its discretion, to each of the foregoing conditions to purchase the
Units, except that all references to the Firm Units and the Firm Closing Date
shall be deemed to refer to such Option Units and the related Option Closing
Date, respectively.
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At the Option Closing Date, Deloitte & Touche LLP shall have furnished to
the Underwriter a letter, dated the date of its delivery, which shall confirm,
on the basis of a review in accordance with the procedures set forth in the
letter from Deloitte & Touche LLP, that nothing has come to their attention
during the period from the date of the letter furnished in connection with the
Firm Closing Date, referred to in Section 6(d) hereof, and the Option Closing
Date which would require any change in their letter dated the date hereof if it
were required to be dated and delivered at the Firm Closing Date and the Option
Closing Date.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless the Under-
writer and each person, if any, who controls the Underwriter within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act from and against any
losses, claims, damages, amounts paid in settlement or liabilities, joint or
several, to which the Underwriter or such controlling person may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon:
(1) any breach of any representation or warranty of the
Company contained in Section 1 of this Agreement,
(2) any untrue statement or alleged untrue statement of
any material fact contained in (A) the registration statement originally filed
with respect to the Units or any amendment thereto, the Registration Statement,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto or (B) any application or other document, or any amendment or supplement
thereto, executed by the Company or based upon written information furnished by
or on behalf of the Company filed in any jurisdiction in order to qualify the
Units under the securities or blue sky laws thereof or filed with the Commission
or any securities association or securities exchange (each an "Application"), or
(3) the omission or alleged omission to state n such
registration statement or any amendment thereto, the Registration Statement, any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
or any Application a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse, as incurred, the
Underwriter and each such controlling person for any legal or other expenses
reasonably incurred by the Underwriter or such controlling person in connection
with investigating, defending against or appearing as a third-party witness in
connection with any loss, claim, damage, liability, action, investigation,
litigation or proceeding; provided, however, that the Company will not be liable
to the Underwriter or any controlling person of the Underwriter in any such case
(or in the case of clause (2) above) to the extent that any such loss, claim,
damage or liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in (i) any
Preliminary Prospectus which is corrected in the Prospectus or (ii) the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto or any Application in reliance upon and in
conformity with written information furnished to the
- 25 -
Company by the Underwriter specifically for use therein. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have. The Company will not, without the prior written consent of the
Underwriter, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not the Underwriter or any
person who controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of the Underwriter and each such controlling person from
all liability arising out of such claim, action, suit or proceeding.
(b) The Underwriter will indemnify and hold harmless the Company,
each of its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act against, any losses,
claims, damages or liabilities to which the Company or any such director,
officer or controlling person may become subject under the Act, the Exchange Act
or otherwise, but only insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, or any Application, or (ii) the omission or the
alleged omission to state therein a material fact required to be stated in the
Registration Statement, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, or any Application, or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by the Underwriter specifically for use
therein; and, subject to the limitation set forth immediately preceding this
clause, will reimburse, as incurred, any legal or other expenses reasonably
incurred by the Company or any such director, officer or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or any action in respect thereof. This indemnity agreement will be in
addition to any liability which the Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that 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 one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
- 26 -
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 7 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence or (ii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. After such notice from the
indemnifying party to such indemnified party, the indemnifying party will not be
liable for the costs and expenses of any settlement of such action effected by
such indemnified party without the consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 7 is unavailable or insufficient to
hold harmless an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof), each indemnifying party, in order
to provide for just and equitable contribution, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (i) the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from the
offering of the Units or (ii) if the allocation provided by the foregoing clause
(i) is not permitted by applicable law, not only such relative benefits but also
the relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions or
alleged statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof as well as other equitable
considerations). The relative benefits received by the Company on the one hand
and the Underwriter on the other shall be deemed to be in the same proportion as
the total proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriter. The relative fault of the parties shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriter, the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances. The Company and the Underwriter agree that it
would not be equitable if the amount of such contribution were determined by pro
rata or per capita allocation or by any other method of allocation that does not
take into account the equitable considerations referred to in the first sentence
of this paragraph (d). Notwithstanding any other provision of this paragraph
(d), the Underwriter shall not be obligated to make contributions hereunder that
in the aggregate exceed the total public offering price of the Units purchased
by the Underwriter under this Agreement, less the aggregate amount of any
damages that the Underwriter has otherwise been required to pay in respect of
the same or any substantially similar claim, and no person guilty of
- 27 -
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls the Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
the Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, shall have the same rights to contribution as the Company.
8. SURVIVAL. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company, any of its officers
or directors and the Underwriter set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement shall remain in full
force and effect, regardless of (i) any investigation made by or on behalf of
the Company, any of its officers or directors, the Underwriter or any
controlling person referred to in Section 7 hereof or (ii) delivery of and
payment for the Units. The respective agreements, covenants, indemnities and
other statements set forth in Sections 5 and 7 hereof shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement.
9. TERMINATION.
(a) This Agreement may be terminated with respect to the Firm Units
or any Option Units in the sole discretion of the Underwriter by notice to the
Company given at or prior to the Firm Closing Date or the related Option Closing
Date, respectively, in the event that:
(1) the Company shall have failed, refused or been
unable to perform all obligations in all material respects and satisfy in all
material respects all conditions on its part to be performed or satisfied
hereunder at or prior thereto, including, without limitation, any change in the
condition (financial or otherwise), operations, business or business prospects
of the Company and its Subsidiaries considered as one enterprise from that set
forth in the Registration Statement or the Prospectus, which in the reasonable
judgment of the Underwriter, is material and adverse;
(2) the Company or any Subsidiary sustains a material
loss by reason of explosion, strike, fire, flood, accident or other calamity,
which, in the sole opinion of the Underwriter, substantially affects the value
of the properties of the Company and the Subsidiaries considered as one
enterprise or which materially interferes with the operation of the business of
the Company and the Subsidiaries considered as one enterprise regardless of
whether such loss shall have been insured; there shall have been any material
adverse change, or any development involving a prospective material adverse
change (including, without limitation, a change in management or control of the
Company), in the business, operations, condition (financial or otherwise) or
business prospects, of the Company and the Subsidiaries considered as one
enterprise, except in each case as described in or contemplated by the
Prospectus (exclusive of any amendment or supplement thereto);
- 28 -
(3) any material action, suit or proceeding shall be
threatened, instituted or pending, at law or in equity, by or against the
Company or any Subsidiary, by any person or by any federal, state, foreign or
other governmental or regulatory commission, board or agency;
(4) trading in the Common Stock or the Units shall have
been suspended by the Commission or the American Stock Exchange, or trading in
securities generally on the American Stock Exchange shall have been suspended or
minimum or maximum prices shall have been established on such exchange;
(5) a banking moratorium shall have been declared by
New York or United States authorities; or
(6) there shall have been (A) an outbreak of hostilities
between the United States and any foreign power (or, in the case of any ongoing
hostilities, a material escalation thereof), (B) an outbreak of any other
insurrection or armed conflict involving the United States or (C) any other
calamity or crisis or material adverse change in financial, political or
economic conditions, having an effect on the financial markets that, in any case
referred to in this clause (6), or there shall have been a material disruption
in the market stabilization of the securities being sold hereunder, which in the
sole judgment of the Underwriter makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Firm Units or the Option
Units as contemplated by the Registration Statement
(b) Termination of this Agreement pursuant to this Section 9
shall be without liability of any party to any other party except as provided in
Section 5(b) and Section 7 hereof.
10. INFORMATION SUPPLIED BY THE UNDERWRITER. The statements set forth under
the heading "Underwriting" in any Preliminary Prospectus or the Prospectus (to
the extent such statements relate to the Underwriter) constitute the only
information furnished by the Underwriter to the Company for the purposes of
Sections 1(b) and 7(b) hereof. The Underwriter confirms that such statements (to
such extent) are correct.
11. NOTICES. All communications hereunder shall be in writing and, if sent
to the Underwriter, shall be mailed or delivered or telegraphed or faxed
(confirmed by letter) to Xxxxxxx and Company Securities, Inc, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Finance Department; and if sent
to the Company, shall be mailed, delivered or telegraphed or faxed (confirmed by
letter) to the Company at Bentley Pharmaceuticals, Inc., One Urban Centre, Suite
000, 0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000, Attention: Xx. Xxxxx X.
Xxxxxx, Chairman. Any such notice shall be effective only upon receipt.
12. SUCCESSORS. This Agreement shall inure to the benefit of and shall be
binding upon the Underwriter, the Company and their respective successors and
legal representatives, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other
- 29 -
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Company contained in Section 7 of this Agreement shall
also be for the benefit of any person or persons who control the Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Underwriter contained in Section 7 of this
Agreement shall also be for the benefit of the directors of the Company, the
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act. No purchaser of Units from the
Underwriter shall be deemed a successor or assign because of such purchase.
13. APPLICABLE LAW. The validity and interpretation of this Agreement, and
the terms and conditions set forth herein, shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
provisions relating to conflicts of laws.
14. INTERPRETATION. In case any provision in this Agreement shall be
invalid, illegal or unenforceable, the validity, legality or enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
This Agreement sets forth the entire agreement between the parties hereto as to
the subject matter herein, and cannot be amended or modified except by a writing
executed by the parties hereto.
15. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter shall constitute an agreement binding the Company and the
Underwriter.
Very truly yours,
BENTLEY PHARMACEUTICALS, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman of the Board
The foregoing agreement is hereby confirmed and accepted as of the date first
above written
XXXXXXX AND COMPANY SECURITIES, INC.
By:_________________________________
Name:
Title:
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