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EPL Technologies, Inc.
3,500,000 Shares(1)
Common Stock
UNDERWRITING AGREEMENT
, 1998
PRUDENTIAL SECURITIES INCORPORATED
PENNSYLVANIA MERCHANT GROUP
As the Representatives of the several Underwriters
c/o Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
EPL Technologies, Inc., a Colorado corporation (the "Company"), and
Trilon Dominion Partners, L.L.C., a Delaware limited liability company (the
"Selling Securityholder"), hereby confirm their agreement with the several
underwriters named in Schedule 1 hereto (the "Underwriters"), for whom you have
been duly authorized to act as representatives (in such capacities, the
"Representatives"), as set forth below. If you are the only Underwriters, all
references herein to the Representatives shall be deemed to be to the
Underwriters.
1. Securities. Subject to the terms and conditions herein contained,
the Company proposes to issue and sell to the several Underwriters an aggregate
of 809,097 shares of the Company's Common Stock, par value $.001 per share
("Common Stock"), and the Selling Securityholder proposes to sell to the several
Underwriters an aggregate of 2,690,903 shares of Common Stock; any and all of
such shares of Common Stock are hereinafter referred to as the "Firm
Securities." The Company also proposes to sell to the several Underwriters not
more than 525,000 additional shares of Common Stock if requested by the
Representatives as provided in Section 3 of this Agreement. Any and all shares
of Common Stock to be purchased by the Underwriters pursuant to such option are
referred to herein as the "Option Securities," and the Firm Securities and any
Option Securities are collectively referred to herein as the "Securities."
2. Representations and Warranties of the Company.
The Company represents and warrants to, and agrees with, each of the
several Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-46397)
with respect to the Securities, 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 one
or more amendments to such registration statement may have been so filed. After
the execution of this Agreement, the
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(1) Plus an option to purchase from the Company up to 525,000 additional shares
to cover over-allotments.
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Company will file with the Commission either (i) if such registration statement,
as it may have been amended, has been declared by the Commission to be effective
under the Act, either (A) if the Company relies on Rule 434 under the Act, a
Term Sheet (as hereinafter defined) relating to the Securities, that shall
identify the Preliminary Prospectus (as hereinafter defined) that it supplements
containing such information as is required or permitted by Rules 434, 430A and
424(b) under the Act or (B) if the Company does not rely on Rule 434 under the
Act, a prospectus in the form most recently included in an amendment to such
registration statement (or, if no such amendment shall have been filed, in such
registration statement), with such changes or insertions as are required by Rule
430A under the Act or permitted by Rule 424(b) under the Act, and in the case of
either clause (i)(A) or (i)(B) of this sentence as have been provided to and
approved by the Representatives prior to the execution of this Agreement, or
(ii) if such registration statement, as it may have been amended, has not been
declared by the Commission to be effective under the Act, an amendment to such
registration statement, including a form of prospectus, a copy of which
amendment has been furnished to and approved by the Representatives prior to the
execution of this Agreement. The Company may also file a related registration
statement with the Commission pursuant to Rule 462(b) under the Act for the
purpose of registering certain additional Securities, which registration shall
be effective upon filing with the Commission. As used in this Agreement, the
term "Original Registration Statement" means the registration statement
initially filed relating to the Securities, as amended at the time when it was
or is declared effective, including all financial schedules and exhibits thereto
and including any information omitted therefrom pursuant to Rule 430A under the
Act and included in the Prospectus (as hereinafter defined); the term "Rule
462(b) Registration Statement" means any registration statement filed with the
Commission pursuant to Rule 462(b) under the Act (including the Registration
Statement and any Preliminary Prospectus or Prospectus incorporated therein at
the time such Registration Statement becomes effective); the term "Registration
Statement" includes both the Original Registration Statement and any Rule 462(b)
Registration Statement; the term "Preliminary Prospectus" means each prospectus
subject to completion filed with such registration statement or any amendment
thereto (including the prospectus subject to completion, if any, included in the
Registration Statement or any amendment thereto at the time it was or is
declared effective); the term "Prospectus" means:
(A) if the Company relies on Rule 434 under the Act, the Term
Sheet relating to the Securities that is first filed pursuant to Rule
424(b)(7) under the Act, together with the Preliminary Prospectus
identified therein that such Term Sheet supplements;
(B) if the Company does not rely on Rule 434 under the Act,
the prospectus first filed with the Commission pursuant to Rule 424(b)
under the Act; or
(C) if the Company does not rely on Rule 434 under the Act and
if no prospectus is required to be filed pursuant to Rule 424(b) under
the Act, the prospectus included in the Registration Statement;
and the term "Term Sheet" means any term sheet that satisfies the requirements
of Rule 434 under the Act. Any reference herein to the "date" of a Prospectus
that includes a Term Sheet shall mean the date of such Term Sheet.
(b) The Commission has not issued any order preventing or
suspending use of any Preliminary Prospectus. When any Preliminary Prospectus
was filed with the Commission it (i) contained all statements required to be
stated therein in accordance with, and complied in all material respects with
the requirements of, the Act and the rules and regulations of the Commission
thereunder and (ii) did 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. When the Registration Statement or any amendment thereto 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 in all
material respects with the requirements of, the Act and the rules and
regulations of the Commission thereunder 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 not misleading. When the Prospectus or
any Term Sheet that is a part thereof or any amendment or supplement to the
Prospectus is filed with the Commission pursuant to Rule 424(b) (or, if the
Prospectus or part thereof or such amendment or supplement is not
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required to be so filed, when the Registration Statement or the amendment
thereto containing such amendment or supplement to the Prospectus was or is
declared effective) and on the Firm Closing Date and any Option Closing Date
(both as 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 in all material respects
with the requirements of, the Act and the rules and regulations of the
Commission thereunder 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 any amendment thereto or the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for use therein.
(c) If the Company has elected to rely on Rule 462(b) and the
Rule 462(b) Registration Statement has not been declared effective (i) the
Company has filed a Rule 462(b) Registration Statement in compliance with and
that is effective upon filing pursuant to Rule 462(b) and has received
confirmation of its receipt and (ii) the Company has given irrevocable
instructions for transmission of the applicable filing fee in connection with
the filing of the Rule 462(b) Registration Statement, in compliance with Rule
111 promulgated under the Act, or the Commission has received payment of such
filing fee.
(d) The Company and each of its subsidiaries have been duly
organized and are validly existing as corporations or limited liability
companies (as the case may be) under the laws of their respective jurisdictions
of incorporation or formation and are duly qualified to transact business as
foreign corporations or limited liability companies (as the case may be) and are
in good standing under the laws of all other jurisdictions where the ownership
or leasing of their respective properties or the conduct of their respective
businesses requires such qualification, except where the failure to be so
qualified would not result in a material adverse change in the condition
(financial or otherwise), management, business prospects, net worth, or results
of operations of the Company and its subsidiaries, taken as a whole ("Material
Adverse Effect"). For purposes of this Underwriting Agreement, the term
"subsidiaries" when used with respect to the Company shall include, without
limitation, each of the entities listed in Exhibit 21 to the Registration
Statement and Xxxxxxxxx LLC.
(e) The Company and each of its subsidiaries have full power
(corporate and other) to own or lease their respective properties and conduct
their respective businesses as described in the Registration Statement and the
Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus; and the Company has full power (corporate and other) to
enter into this Agreement and to carry out all the terms and provisions hereof
to be carried out by it.
(f) The issued shares of capital stock or other ownership
interests of each of the Company's subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable (or comparable concept under
foreign law) and, except as set forth in the Prospectus or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus, are owned beneficially
by the Company free and clear of any security interests, liens, encumbrances,
equities or claims.
(g) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus. All of the issued and
outstanding shares of capital stock of the Company as set forth therein have
been duly authorized and validly issued and are fully paid and nonassessable,
were issued in compliance with all applicable federal and state securities laws,
were not issued in violation of and are not subject to any preemptive rights or
other rights to subscribe for or purchase securities and were not issued in
violation of any other contractual or legal rights. The Firm Securities to be
sold by Selling Securityholder are duly authorized, validly issued, fully paid
and nonassessable, were issued in compliance with all applicable federal and
state securities laws, were not issued in violation of and are not subject to
any preemptive rights or other rights to subscribe for or purchase securities
and were not issued in violation of any
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other contractual or legal rights. The Firm Securities to be sold by the Company
and the Option Securities have been duly authorized and at the Firm Closing Date
or the related Option Closing Date (as the case may be), after payment therefor
in accordance herewith, will be validly issued, fully paid and nonassessable. No
holders of outstanding shares of capital stock of the Company are entitled to
any preemptive or other rights to subscribe for any of the Securities, and no
holder of securities of the Company has any right which has not been fully
exercised or waived to require the Company to register the offer or sale of any
securities owned by such holder under the Act in the public offering
contemplated by this Agreement.
(h) The capital stock of the Company conforms to the
description thereof contained under the heading "Description of Capital Stock"
in the Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus.
(i) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), there
are no outstanding (A) securities or obligations of the Company or any of its
subsidiaries convertible into or exchangeable for any capital stock of the
Company or any such subsidiary, (B) warrants, rights or options to subscribe for
or purchase from the Company or any such subsidiary any such capital stock or
any such convertible or exchangeable securities or obligations, or (C)
obligations of the Company or any such subsidiary to issue any shares of capital
stock, any such convertible or exchangeable securities or obligations, or any
such warrants, rights or options.
(j) The consolidated financial statements and schedules of the
Company and its consolidated subsidiaries included in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present the financial position of the Company and
its consolidated subsidiaries and the results of operations and changes in
financial condition as of the respective dates or for the respective periods
therein specified. Such financial statements and schedules have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise noted therein). The
selected financial data set forth under the caption "Selected Consolidated
Financial Data" 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.
(k) Each of Deloitte & Touche LLP and Coopers & Xxxxxxx, X.X.,
who have certified certain financial statements of the Company and delivered
their respective reports with respect to the audited consolidated financial
statements and schedules 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 as required by the
Act and the applicable rules and regulations thereunder.
(l) The execution, delivery and performance of this Agreement
have been duly authorized by the Company, and this Agreement has been duly
executed and delivered by the Company, and is the valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject, as to enforceability, to general
principles of equity.
(m) No legal or governmental proceedings are pending to which
the Company or any of its subsidiaries is a party or to which the property of
the Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not described
therein (or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus), and, to the knowledge of the Company, no such proceedings have been
threatened against the Company or any of its subsidiaries or with respect to any
of their respective properties; and no contract or other document 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, if
the Prospectus is not in existence, the most recent Preliminary Prospectus) or
filed as required.
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(n) The issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by the
Company with the other provisions of this Agreement and the consummation of the
other transactions herein contemplated do not (i) require the consent, approval,
authorization, registration or qualification of or with any governmental
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 Securities (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 or the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or (ii) conflict with or result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or any of their respective
properties are bound, except as to which waivers have been received from the
holders of the Company's Series D Preferred Stock and Xxxxxxxx X. Xxxxx, or the
charter or other organizational documents or by-laws of the Company or any of
its subsidiaries, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any arbitrator
applicable to the Company or any of its subsidiaries.
(o) Subsequent to 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, neither the Company
nor any of its subsidiaries has sustained any material loss or interference with
its business or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor dispute or any
legal or governmental proceeding and there has not been any Material Adverse
Effect, or any development involving a prospective Material Adverse Effect,
except in each case as described in or contemplated by the Prospectus or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus.
(p) The Company has not, directly or indirectly, (i) taken any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) since the filing of the Registration Statement (A) sold, bid
for, purchased, or paid anyone any compensation for soliciting purchases of, the
Securities or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company (except for
the sale of Securities by the Company and the Selling Securityholder under this
Agreement).
(q) The Company has not distributed and, prior to the later of
(i) the Firm Closing Date and (ii) the completion of the distribution of the
Securities, will not distribute any offering material in connection with the
offering and sale of the Securities other than the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or other materials, if any, permitted by the Act.
(r) Subsequent to the respective dates as of which information
is given in any of the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), (A) the
Company and its subsidiaries have not incurred any material liability or
obligation, direct or contingent, nor entered into any material transaction not
in the ordinary course of business; (B) the Company has not purchased any of its
outstanding capital stock or declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock; and (C) there has not been any
material change in the capital stock, short-term debt or long-term debt of the
Company and its consolidated subsidiaries, except in each case as described in
or contemplated by the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus).
(s) The Company and each of its subsidiaries have good and
marketable title to all items of real property and good title to all items of
personal property owned by each of them, in each case free and clear of any
security interests, liens, encumbrances, equities, claims and other defects,
except as described in the Prospectus or such as do not materially and adversely
affect the value of such property and do not interfere with the use made or
proposed to be made of such property by the Company or such subsidiary, and any
real property and buildings held
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under lease by the Company or any such subsidiary are held under valid,
subsisting and enforceable leases, with such exceptions as are not material and
do not interfere with the use made or proposed to be made of such property and
buildings by the Company or such subsidiary, in each case except as described in
or contemplated by the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus).
(t) No labor dispute with the employees of the Company or any
of its subsidiaries or with the employees of any of the Company's contract
manufacturers exists or is threatened or imminent that could result in a
Material Adverse Effect, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(u) The Company and its subsidiaries own, possess, or have the
right to use, or can acquire ownership, possession or the right to use on
reasonable terms, all material patents, patent applications, trademarks, service
marks, trade names, licenses, copyrights and proprietary or other confidential
information currently employed by them in connection with their respective
businesses, and neither the Company nor any such subsidiary has received any
notice of infringement of or conflict with asserted rights of any third party
with respect to any of the foregoing, in each case except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(v) The Company and each of its subsidiaries are 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 they
are engaged; neither the Company nor any such subsidiary has been refused any
insurance coverage sought or applied for; and neither the Company nor any such
subsidiary has any reason to believe that it will not be able to renew its
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 cause a Material Adverse Effect, except as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(w) Except as described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), no
subsidiary of the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on such
subsidiary's capital stock or other ownership interest, from repaying to the
Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary's property or assets to the Company or any
other subsidiary of the Company, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(x) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective businesses, and
neither the Company nor any such subsidiary has received any notice of
proceedings relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect, in each case except as described in or contemplated by the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus).
(y) The Company will conduct its operations in a manner that
will not subject it to registration as an investment company under the
Investment Company Act of 1940, as amended, and this transaction will not cause
the Company to become an investment company subject to registration under such
Act.
(z) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed by it or has requested
extensions thereof (except in any case in which the failure so to file would not
have a Material Adverse Effect) and has paid all taxes, tariffs and duties
required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable, except
for any such
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assessment, fine or penalty that is currently being contested in good faith or
as described in or contemplated by the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus).
(aa) Neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign law or regulation relating to
its respective business and the Company and its subsidiaries have received all
permits, licenses or other approvals required under applicable federal, state,
local or foreign laws and regulations to conduct its business, and the Company
and each subsidiary is in compliance with all terms and conditions of any such
permit, license or approval, except any such violation of law or regulation,
failure to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or approvals
which would not, singly or in the aggregate, result in a Material Adverse
Effect, except as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
(bb) Each certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters pursuant to
Section 7(j) hereof shall be deemed to be a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
(cc) Except for the shares of capital stock or other ownership
interests of each of the subsidiaries owned by the Company and such
subsidiaries, neither the Company nor any such subsidiary owns any shares of
stock or other ownership interests of or in any corporation, limited liability
company, firm, partnership, association or other entity, except as described in
or contemplated by the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus).
(dd) There are no holders of securities of the Company who, by
reason of the filing of the Registration Statement, have the right (and have not
waived such right) to request the Company to register under the Act, or to
include in the Registration Statement, securities held by them.
(ee) The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance 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 generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(ff) No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observation of any term, covenant or condition of any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any
such subsidiary or any of their respective properties are bound, which default
would have a Material Adverse Effect.
(gg) The business systems of the Company and its subsidiaries
include design, performance and functionality so that neither the Company, any
such subsidiary nor, to the Company's knowledge (which does not include direct
inquiry), any of their respective customers will experience invalid or incorrect
results or abnormal software operation related to the calendar year 2000 which
will have a Material Adverse Effect.
(hh) Neither the Company nor any of its subsidiaries is or
with the giving of notice or the lapse of time or both, will be in violation of
(i) its charter or other organizational documents or by-laws (ii) in violation
of any law, ordinance, administrative or governmental rule or regulation
applicable to the Company or any such subsidiary, the failure to comply with
which would have a Material Adverse Effect, or (iii) any decree of any court or
governmental agency or body having jurisdiction over the Company or any such
subsidiary.
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(ii) The 1-for-2 reverse stock split described in the
Registration Statement was effected in compliance with all applicable legal and
regulatory requirements.
2A. Representations of the Selling Securityholder.
The Selling Securityholder represents and warrants to, and agrees with,
each of the several Underwriters that:
(a) The Selling Securityholder has full power (as a limited
liability company and otherwise) to enter into this Agreement and to sell,
assign, transfer and deliver to the Underwriters the Securities to be sold by
the Selling Securityholder hereunder in accordance with the terms of this
Agreement; the execution, delivery and performance of this Agreement has been
duly authorized by all necessary action of the Selling Securityholder; and this
Agreement has been duly executed and delivered by the Selling Securityholder.
(b) The Selling Securityholder has duly executed and delivered
a custody agreement (the "Custody Agreement"), in the form heretofore delivered
to the Representatives, appointing the Company as custodian thereunder (the
"Custodian"). Certificates in negotiable form, endorsed in blank or accompanied
by blank stock powers duly executed, with signatures appropriately guaranteed,
representing the Securities to be sold by the Selling Securityholder hereunder
have been deposited with the Custodian pursuant to the Custody Agreement for the
purpose of delivery pursuant to this Agreement. The Selling Securityholder has
full power (as a limited liability company and otherwise) to enter into the
Custody Agreement and to perform its obligations under the Custody Agreement.
The execution and delivery of the Custody Agreement has been duly authorized by
all necessary corporate action of the Selling Securityholder; the Custody
Agreement has been duly executed and delivered by the Selling Securityholder
and, assuming due authorization, execution and delivery by the Custodian, is the
legal, valid, binding and enforceable instrument of the Selling Securityholder,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject, as to enforceability, to general
principles of equity. The Selling Securityholder agrees that each of the
Securities represented by the certificates on deposit with the Custodian is
subject to the interests of the Underwriters hereunder, that the arrangements
made for such custody and to carry out the terms of this Agreement, are to that
extent irrevocable and that the obligations of the Selling Securityholder
hereunder shall not be terminated, except as provided in this Agreement or the
Custody Agreement, by any act of the Selling Securityholder, by operation of law
or otherwise, or by its liquidation or dissolution or by the occurrence of any
other event. If the Selling Securityholder shall liquidate or dissolve, or if
any other event should occur, before the delivery of such Securities hereunder,
the certificates for such Securities deposited with the Custodian shall be
delivered by the Custodian in accordance with the respective terms and
conditions of this Agreement as if such liquidation or dissolution or other
event had not occurred, regardless of whether the Custodian shall have received
notice thereof.
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(c) The Selling Securityholder is the lawful owner of the
Securities to be sold by the Selling Securityholder hereunder and upon sale and
delivery of, and payment for, such Securities, as provided herein, the Selling
Securityholder will convey good and valid title to such Securities, free and
clear of any security interests, liens, encumbrances, equities, claims or other
defects.
(d) The Selling Securityholder has not, directly or
indirectly, (i) taken any action designed to cause or result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities or (ii) since the filing of the
Registration Statement (A) sold, bid for, purchased, or paid anyone any
compensation for soliciting purchases of, the Securities or (B) paid or agreed
to pay to any person any compensation for soliciting another to purchase any
other securities of the Company (except for the sale of Securities by the
Selling Securityholder under this Agreement).
(e) Based on a review of and participation in the preparation
of the Registration Statement, nothing came to the attention of the Selling
Securityholder that caused the Selling Securityholder to believe that (i) when
any Preliminary Prospectus and any amendment or supplement thereto was filed
with the Commission, it included any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; or (ii) when the Registration Statement or any amendment thereto was
or is declared effective, it included or will include any untrue statement of a
material fact or omitted or will omit to state any material fact necessary to
make the statements therein not misleading; or (iii) when the Prospectus or any
Term Sheet that is a part thereof or any Integrated Prospectus or any amendment
or supplement to the Prospectus is filed with the Commission pursuant to Rule
424(b) (or, if the Prospectus or part thereof or such amendment or supplement is
not required to be so filed, when the Registration Statement or the amendment
thereto containing such amendment or supplement to the Prospectus was or is
declared effective), on the date when the Prospectus is otherwise amended or
supplemented and on the Firm Closing Date and any Option Closing Date (both as
hereinafter defined), each of the Prospectus, [and, if required to be filed
pursuant to Rules 434(c)(2) and 424(b) under the Act, the Integrated Prospectus]
as amended or supplemented at any such time, included or will include any untrue
statement of a material fact or omitted or will 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 (h) do not apply to statements or omissions made in
any Preliminary Prospectus or any amendment or supplement thereto, the
Registration Statement or any amendment thereto, the Prospectus or, if required
to be filed pursuant to Rules 434(c)(2) and 424(b) and the Act, the Integrated
Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein.
(f) To the extent that any statements or omissions are made in
the Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by the Selling Securityholder specifically
for use therein, such Preliminary Prospectus did, and the Registration Statement
and the Prospectus and any amendments or supplements thereto, when they become
effective or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act and the respective rules
and regulations of the Commission thereunder and will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading. The Selling
Securityholder has made all filings required to be made under the Act and the
Exchange Act and all such filings comply in all material respects to the
requirements of the Act and the Exchange Act. The Selling Securityholder has
reviewed the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) and the Registration Statement, and the
information regarding the Selling Securityholder set forth therein under the
captions "Prospectus Summary - Selling Shareholder," "Management - Directors and
Executive Officers - Xxxxxx X. Xxxxxxxx," "Principal and Selling Shareholders"
and "Certain Transactions" is complete and accurate and the Company is entitled
to rely thereon.
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(g) The sale by the Selling Securityholder of Securities
pursuant hereto is not prompted by any adverse information concerning the
Company that is not set forth in the Registration Statement or the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus).
(h) The sale of the Securities to the Underwriters by the
Selling Securityholder pursuant to this Agreement, the compliance by the Selling
Securityholder with the other provisions of this Agreement, the Custody
Agreement and the consummation of the other transactions herein contemplated do
not (i) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have been
obtained, such as may be required under state securities or blue sky laws or to
clear the offering and the underwriting arrangements with the NASD and, if the
registration statement filed with respect to the Securities (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 or
the Exchange Act, or (ii) conflict with or result in a breach or violation of
any of the terms and provisions of, or constitute a default under any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which the
Selling Securityholder or any of its affiliates is a party or by which the
Selling Securityholder or any of its affiliates or any of their respective
properties are bound, or the charter documents or by-laws of the Selling
Securityholder or any of its affiliates or any statute or any judgment, decree,
order, rule or regulation of any court or other governmental authority or any
arbitrator applicable to the Selling Securityholder or any of its affiliates.
(i) Each certificate signed by an officer of the Selling
Securityholder and delivered to the Representatives or counsel for the
Underwriters pursuant to Section 7(k) hereof shall be deemed to be a
representation and warranty by the Selling Securityholder to each Underwriter as
to the matters covered thereby.
(j) The Selling Securityholder has not distributed and, prior
to the later of (i) the Firm Closing Date and (ii) the completion of the
distribution of the securities, will not distribute any offering material in
connection with the offering and sale of the securities other than the
Registration Statement or any amendment thereto, any Preliminary Prospectus or
the Prospectus or any amendment or supplement thereto, or other materials, if
any, permitted by the Act.
3. Purchase, Sale and Delivery of the Securities.
(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 and the
Selling Securityholder agrees to sell to each of the Underwriters, and each of
the Underwriters, severally and not jointly, agrees to purchase from the Company
and the Selling Securityholder, at a purchase price of $_____ per share, the
number of Firm Securities set forth opposite the name of such Underwriter in
Schedule 1 hereto. One or more certificates in definitive form for the Firm
Securities that the several Underwriters have agreed to purchase hereunder, and
in such denomination or denominations and registered in such name or names as
the Representatives request upon notice to the Company and the Selling
Securityholder at least 48 hours prior to the Firm Closing Date, shall be
delivered by or on behalf of the Company and the Selling Securityholder to the
Representatives for the respective accounts of the Underwriters, against payment
by or on behalf of the Underwriters of the purchase price therefor by wire
transfer in same-day funds (the "Wired Funds") to the account of the Company and
the Selling Securityholder. Such delivery of and payment for the Firm Securities
shall be made at the offices of Xxxxxx & Bird LLP, 0000 Xxxx Xxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000-0000 at 9:30 A.M., New York time, on ___________ , 1998,
or at such other place, time or date as the Representatives and the Company may
agree upon or as the Representatives may determine pursuant to Section 9 hereof,
such time and date of delivery against payment being herein referred to as the
"Firm Closing Date." The Company and the Selling Securityholder will make such
certificate or certificates for the Firm Securities available for checking and
packaging by the Representatives at the offices in New York, New York of
Prudential Securities Incorporated at least 24 hours prior to the Firm Closing
Date.
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(b) For the purpose of covering any over-allotments in
connection with the distribution and sale of the Firm Securities as contemplated
by the Prospectus, the Company hereby grants to the several Underwriters an
option to purchase, severally and not jointly, the Option Securities. The
purchase price to be paid for any Option Securities shall be the same price per
share as the price per share for the Firm Securities set forth above in
paragraph (a) of this Section 3, plus if the purchase and sale of any Option
Securities takes place after the Firm Closing Date and after the Firm Securities
are trading "ex-dividend", an amount equal to the dividends payable on such
Option Securities. The option granted hereby may be exercised as to all or any
part of the Option Securities from time to time within 30 (thirty) days after
the date of the Prospectus (or, if such 30th day shall be a Saturday or Sunday
or a holiday, on the next business day thereafter when the New York Stock
Exchange is open for trading). The Underwriters shall not be under any
obligation to purchase any of the Option Securities prior to the exercise of
such option. The Representatives may from time to time exercise the option
granted hereby by giving notice in writing or by telephone (confirmed in
writing) to the Company setting forth the aggregate number of Option Securities
as to which the several Underwriters are then exercising the option and the date
and time for delivery of and payment for such Option Securities. Any such date
of delivery shall be determined by the Representatives but shall not be earlier
than two business days or later than five business days after such exercise of
the option and, in any event, shall not be 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 Representatives and the Company may agree upon or as the
Representatives may determine pursuant to Section 9 hereof, is herein called the
"Option Closing Date" with respect to such Option Securities. Upon exercise of
the option as provided herein, the Company shall become obligated to sell to
each of the several Underwriters and, subject to the terms and conditions herein
set forth, each of the Underwriters (severally and not jointly) shall become
obligated to purchase from the Company, the same percentage of the total number
of the Option Securities as to which the several Underwriters are then
exercising the option as such Underwriter is obligated to purchase of the
aggregate number of Firm Securities, as adjusted by the Representatives in such
manner as they deem advisable to avoid fractional shares. If the option is
exercised as to all or any portion of the Option Securities, one or more
certificates in definitive form for such Option Securities, 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 (a) of this Section 3,
except that reference therein to the Firm Securities and the Firm Closing Date
shall be deemed, for purposes of this paragraph (b), to refer to such Option
Securities and Option Closing Date, respectively.
(c) The Company and the Selling Securityholder hereby
acknowledge that the wire transfer by or on behalf of the Underwriters of the
purchase price for any Securities does not constitute closing of a purchase and
sale of the Securities. Only execution and delivery of a receipt for Securities
by the Underwriters indicates completion of the closing of a purchase of the
Securities from the Company and the Selling Securityholder. Furthermore, in the
event that the Underwriters wire funds to the Company and the Custodian prior to
the completion of the closing of a purchase of Securities, the Company and the
Selling Securityholder hereby acknowledge that until the Underwriters execute
and deliver a receipt for the Securities, by facsimile or otherwise, the Company
and the Selling Securityholder will not be entitled to the Wired Funds and shall
return the Wired Funds to the Underwriters as soon as practicable (by wire
transfer of same-day funds) upon demand. In the event that the closing of a
purchase of Securities is not completed and the Wired Funds are not returned by
the Company and the Custodian to the Underwriters on the same day the Wired
Funds were received by the Company and the Custodian, the Company and the
Selling Securityholder agree to pay to the Underwriters in respect of each day
the Wired Funds are not returned by them, in same-day funds, interest on the
amount of such Wired Funds in an amount representing the Underwriters' cost of
financing as reasonably determined by Prudential Securities Incorporated.
(d) It is understood that any of you, individually and not as
one of the Representatives, may (but shall not be obligated to) make payment on
behalf of any Underwriter or Underwriters for any of the Securities to be
purchased by such Underwriter or Underwriters. No such payment shall relieve
such Underwriter or Underwriters from any of its or their obligations hereunder.
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4. Offering by the Underwriters. Upon your authorization of the release
of the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale to the public upon the terms set forth in the Prospectus.
5. Covenants of the Company and the Selling Securityholder.
The Company covenants and agrees with each of the Underwriters 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, and any amendments thereto to become effective as promptly as
possible. If required, the Company will file the Prospectus or any Term Sheet
that constitutes a part thereof and any amendment or supplement thereto with the
Commission in the manner and within the time period required by Rules 434 and
424(b) under the Act. During any time when a Prospectus relating to the
Securities is required to be delivered under the Act, the Company (i) will
comply with all requirements imposed upon it by the Act and the rules and
regulations of the Commission thereunder to the extent necessary to permit the
continuance of sales of or dealings in the Securities in accordance with the
provisions hereof and of the Prospectus, as then amended or supplemented, and
(ii) will not file with the Commission the Prospectus, Term Sheet or the
amendment referred to in the second sentence of Section 2(a) hereof, any
amendment or supplement to such Prospectus, Term Sheet or any amendment to the
Registration Statement or any Rule 462(b) Registration Statement of which the
Representatives previously have not been advised and furnished with a copy for a
reasonable period of time prior to the proposed filing and as to which filing
the Representatives shall not have given their 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 Representatives or counsel for the
Underwriters, 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 Securities by the several Underwriters, 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 Representatives, 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 Representatives of each
such filing or effectiveness.
(b) The Company will advise the Representatives, promptly
after receiving notice or obtaining knowledge thereof, of (i) the issuance by
the Commission of any stop order suspending the effectiveness of the Original
Registration Statement or any Rule 462(b) Registration Statement or any
amendment thereto 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 Securities for offering or sale
in any jurisdiction, (iii) the institution, threatening or contemplation of any
proceeding for any such purpose or (iv) any request made by the Commission for
amending the Original Registration Statement or any Rule 462(b) 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 cooperate with the Representatives and
counsel to the Underwriters in qualifying or registering the Securities for
offering and sale under the securities or blue sky laws of such jurisdictions as
the Representatives may designate and will continue such qualifications or
registrations in effect for as long as may be necessary to complete the
distribution of the Securities; 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.
(d) If, at any time prior to the later of (i) the final date
when a Prospectus relating to the Securities is required to be delivered under
the Act or (ii) the Option Closing Date, 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
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a material fact necessary in order to make the statements therein, in the light
of the circumstances under which 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 Representatives thereof and, subject to
Section 5(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 (i) to the
Representatives and to counsel for the Underwriters a conformed copy of the
registration statement originally filed with respect to the Securities and each
amendment thereto (in each case including exhibits thereto) or any Rule 462(b)
Registration Statement, certified by the Secretary or an Assistant Secretary of
the Company to be true and complete copies thereof as filed with the Commission
by electronic transmission, (ii) as instructed by the Representatives, to each
other Underwriter, a conformed copy of such registration statement or any Rule
462(b) Registration Statement and each amendment thereto (in each case without
exhibits thereto) and (iii) so long as a Prospectus relating to the Securities
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
Representatives may reasonably request; without limiting the application of
clause (iii) of this sentence, the Company, not later than (A) 6:00 PM, New York
City time, on the date of determination of the public offering price, if such
determination occurred at or prior to 10:00 A.M., New York City time, on such
date or (B) 2:00 PM, New York City time, on the business day following the date
of determination of the public offering price, if such determination occurred
after 10:00 A.M., New York City time, on such date, will deliver to the
Underwriters, without charge, as many copies of the Prospectus and any amendment
or supplement thereto as the Representatives may reasonably request for purposes
of confirming orders that are expected to settle on the Firm Closing Date.
(f) The Company, as soon as practicable, will make generally
available to its securityholders and to the Representatives a consolidated
earnings statement of the Company and its subsidiaries that satisfies the
provisions of Section 11(a) of the Act and Rule 158 thereunder.
(g) The Company will apply the net proceeds from the sale of
the Securities as set forth under "Use of Proceeds" in the Prospectus.
(h) The Company will not, directly or indirectly, without the
prior written consent of Prudential Securities Incorporated, on behalf of the
Underwriters, offer, sell, offer to sell, contract to sell, pledge, grant any
option to purchase or otherwise dispose or transfer (or announce any offer,
sale, offer of sale, contract of sale, pledge, grant of any option to purchase
or other disposition or transfer) of any shares of Common Stock or any
securities convertible into, or exchangeable or exercisable for, shares of
Common Stock for a period of 180 days after the date hereof, except pursuant to
this Agreement and except for issuances pursuant to the exercise of employee
stock options or currently outstanding warrants, the conversion of any shares of
the Company's convertible preferred stock or grants of stock options by the
Company, each as described in the Prospectus.
(i) The Company will not, directly or indirectly, (i) take any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) (A) sell, bid for, purchase, or pay anyone any compensation
for soliciting purchases of, the Securities or (B) pay or agree to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company (except for the sale of Securities by the Company and the Selling
Securityholder under this Agreement).
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(j) The Company will obtain the agreements described in
Section 7(l) hereof prior to the Firm Closing Date.
(k) If at any time during the 25-day period after the
Registration Statement becomes effective or the period prior to the Option
Closing Date, any rumor, publication or event relating to or affecting the
Company shall occur as a result of which in your opinion 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 notice from you advising
the Company to the effect set forth above, forthwith prepare, consult with you
concerning the substance of, and disseminate a press release or other public
statement, reasonably satisfactory to you, responding to or commenting on such
rumor, publication or event.
(l) If the Company elects to rely on Rule 462(b), the Company
shall both file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees in accordance with Rule
111 promulgated under the Act by the earlier of (i) 10:00 P.M. Eastern time on
the date of this Agreement and (ii) the time confirmations are sent or given, as
specified by Rule 462(b)(2).
(m) The Company will cause the Securities to be duly included
for quotation on the Nasdaq Stock Market's National Market (the "Nasdaq National
Market") prior to the Firm Closing Date, subject to official notice of issuance.
The Company will ensure that the Securities remain included for quotation on the
Nasdaq National Market, the New York Stock Exchange or the American Stock
Exchange following the Firm Closing Date.
(n) The Company will conduct its operations in a manner that
will not subject it to registration as an investment company under the
Investment Company Act of 1940, as amended.
The Selling Securityholder covenants and agrees with each of the
Underwriters that:
(a) The Selling Securityholder will not, directly or
indirectly, without the prior written consent of Prudential Securities
Incorporated, on behalf of the Underwriters, offer, sell, offer to sell,
contract to sell, pledge, grant any option to purchase or otherwise dispose or
transfer(or announce any offer, sale, offer of sale, contract of sale, pledge,
grant of any option to purchase or other disposition or transfer) of any shares
of capital stock of the Company legally or beneficially owned by such Selling
Securityholder or any securities convertible into, or exchangeable or
exercisable for, such capital stock for a period of 180 days after the date
hereof.
(b) The Selling Securityholder will not, directly or
indirectly, (i) take any action designed to cause or result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities or (ii) (A) sell, bid for,
purchase, or pay anyone any compensation for soliciting purchases of, the
Securities or (B) pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the Company (except for
the sale of Securities by the Company and the Selling Securityholder under this
Agreement).
6. Expenses. The Company will pay all costs and expenses incident to
the performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 11 hereof, including all costs and expenses incident to (i)
the printing or other production of documents with respect to the transactions,
including any costs of printing the registration statement originally filed with
respect to the Securities and any amendment thereto, any Rule 462(b)
Registration Statement, any Preliminary Prospectus and the Prospectus and any
amendment or supplement thereto, this Agreement and any blue sky memoranda, (ii)
all arrangements relating to the delivery to the Underwriters 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)
preparation, issuance and delivery to the Underwriters of any certificates
evidencing the Securities, including transfer agent's and registrar's fees, (v)
the qualification of the Securities under state securities and blue sky laws,
including filing fees and reasonable fees and disbursements of counsel for the
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Underwriters relating thereto, (vi) the filing fees of the Commission and the
National Association of Securities Dealers, Inc. relating to the Securities,
(vii) any quotation of the Securities on the Nasdaq National Market, (viii) any
meetings with prospective investors in the Securities (other than as shall have
been specifically approved by the Representatives to be paid for by the
Underwriters), and (ix) advertising relating to the offering of the Securities
(other than as shall have been specifically approved by the Representatives to
be paid for by the Underwriters). The Selling Securityholder has agreed with the
Company to reimburse the Company for a portion of such expenses, although the
Company acknowledges that it shall remain the primary obligor under this
Agreement with respect to the foregoing. The fees and expenses of legal counsel
engaged to represent the Selling Securityholder shall be borne by the Selling
Securityholder. If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 7 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 11 hereof or because of any failure, refusal or inability on
the part of the Company or the Selling Shareholder to perform all obligations
and satisfy all conditions on its part to be performed or satisfied hereunder
other than by reason of a default by any of the Underwriters, the Company and
the Selling Shareholder will jointly and severally reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including counsel fees and
disbursements) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities. The Company and the Selling
Shareholder shall not in any event be liable to any of the Underwriters for the
loss of anticipated profits from the transactions covered by this Agreement.
7. Conditions of the Underwriters' Obligations. The obligations of the
several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company and the Selling Securityholder
contained herein 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 and the Selling Securityholder of their covenants and
agreements hereunder and to the following additional conditions:
(a) If the Original Registration Statement or any amendment
thereto filed prior to the Firm Closing Date has not been declared effective as
of the time of execution hereof, the Original Registration Statement or such
amendment and, if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have been declared effective not later than
the earlier of (i) 11:00 A.M., New York time, on the date on which the amendment
to the registration statement originally filed with respect to the Securities or
to the Registration Statement, as the case may be, containing information
regarding the public offering price of the Securities has been filed with the
Commission and (ii) the time confirmations are sent or given as specified by
Rule 462(b)(2), or with respect to the Original Registration Statement, or such
later time and date as shall have been consented to by the Representatives; if
required, the Prospectus or any Term Sheet that constitutes a part thereof and
any amendment or supplement thereto shall have been filed with the Commission in
the manner and within the time period required by Rules 430A, 434 and 424(b)
under the Act; no stop order suspending the effectiveness of the Registration
Statement or any amendment thereto 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 Representatives, 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 Representatives shall have received an opinion, dated
the Firm Closing Date, of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP, counsel for
the Company, to the effect that:
(i) the Company and each of its subsidiaries have been duly
incorporated and are validly existing or subsisting as corporations or
limited liability companies (as the case may be) under the laws of
their respective jurisdictions of incorporation or formation and are
duly qualified to transact business as foreign corporations or limited
liability companies, as the case may be, and are in good standing under
the laws of all other jurisdictions where the ownership or leasing of
their respective properties or the conduct of their
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respective businesses requires such qualification, except where the
failure to be so qualified does not amount to a material liability or
disability to the Company and its subsidiaries, taken as a whole.
(ii) the Company and each of its subsidiaries have full power
(corporate and other, as applicable) to own or lease their respective
properties and conduct their respective businesses as described in the
Registration Statement and the Prospectus, and the Company has
corporate power to enter into this Agreement and to carry out all the
terms and provisions hereof to be carried out by it;
(iii) the issued shares of capital stock or other ownership
interests of each of the Company's subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable and,
except as set forth in the Prospectus or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus, are owned of record,
and to our knowledge, beneficially by the Company free and clear of any
perfected security interest created by the clear possession of a
certificated security or, to the knowledge of such counsel, any other
security interests, liens, encumbrances, equities or claims;
(iv) the Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus; all of the issued shares
of capital stock of the Company including, without limitation, the Firm
Securities to be sold by the Selling Securityholder, have been duly
authorized and validly issued and are fully paid and nonassessable,
were issued in compliance with the registration provisions of all
applicable federal and state securities laws (or any actions thereunder
are effectively barred by effective waivers or statutes of limitation
or similar laws) and were not issued in violation of and are not
subject to any preemptive rights or other rights to subscribe for or
purchase securities known to such counsel and were not issued in
violation of any other contractual or legal rights known to such
counsel; the Firm Securities to be sold by the Company have been duly
authorized by all necessary corporate action of the Company and, when
issued and delivered to and paid for by the Underwriters pursuant to
and in accordance with this Agreement, will be validly issued, fully
paid and nonassessable; upon the completion of the Offering, the
Securities will be duly included for quotation on the Nasdaq National
Market; no holders of outstanding shares of capital stock of the
Company are entitled as such to any statutory preemptive rights to
subscribe for any of the Securities; and no holders of securities of
the Company are entitled to have such securities registered under the
Registration Statement under any agreement or arrangement known to such
counsel;
(v) the statements set forth under the heading "Description of
Capital Stock" in the Prospectus, insofar as such statements purport to
summarize certain provisions of the capital stock (including associated
registration rights) of the Company, provide a fair and accurate, in
all material respects, summary of such provisions and the statements
set forth under the headings "Risk Factors - Environmental Matters" (as
to U.S. environmental laws), "Business - Regulatory Requirements" (as
to U.S. environmental laws), "Description of Capital Stock -
Registration Rights" and "Shares Eligible for Future Sale" in the
Prospectus, insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, provide a
fair and accurate, in all material respects, summary of such legal
matters, documents and proceedings;
(vi) the execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action of the
Company and this Agreement has been duly executed and delivered by the
Company;
(vii) (A) To the knowledge of such counsel after inquiry
consisting of (i) a search of such counsel's internal records
consistent with the search conducted to respond to an audit inquiry
letter, (ii) certifications of officers of the Company, and (iii) a
docket search of state courts of Pennsylvania and federal courts in
Pennsylvania, no legal or governmental proceedings are pending to which
the Company or
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any of its subsidiaries is a party or to which the property of the
Company or any such subsidiary is subject that are required to be
described in the Registration Statement or the Prospectus and are not
described therein, and, to the knowledge of such counsel, no such
proceedings have been threatened against the Company, any such
subsidiary or with respect to any of their respective properties; (B)
to the knowledge of such counsel, no contract or other document 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; and (C) to the
knowledge of such counsel, the Company is not in violation of its
charter or other organizational documents or bylaws;
(viii) the execution and performance of this Agreement by the
Company and the compliance by the Company with the other provisions of
this Agreement do not (A) require the consent, approval, authorization,
registration or qualification of or with any governmental authority,
except such as have been obtained and except such as may be required
under state securities or blue sky laws (as to which such counsel need
express no opinion), or (B) conflict with or result in a breach or
violation (and with respect to clauses (1) and (3) below, a material
breach or violation) of any of the terms and provisions of, or
constitute a default under, (1) any indenture, mortgage, deed of trust,
lease or other agreement or instrument known to such counsel and to
which the Company or any of its subsidiaries is a party or by which the
Company, any such subsidiary or any of their respective properties are
bound, (2) the charter or other organizational documents or by-laws of
the Company or any such subsidiary, (3) any statute or (4) any
judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator known to such counsel and
applicable to the Company or any such subsidiary;
(ix) the Registration Statement is effective under the Act;
any required filing of the Prospectus, or any Term Sheet that
constitutes a part thereof, pursuant to Rules 430A, 434 and 424(b) has
been made in the manner and within the time period required by Rules
430A, 434 and 424(b); and no stop order suspending the effectiveness of
the Registration Statement or any amendment thereto has been issued and
no proceedings for that purpose have been instituted or, to the
knowledge of such counsel, threatened or are contemplated by the
Commission;
(x) the Registration Statement originally filed with respect
to the Securities and each amendment thereto, any Rule 462(b)
Registration Statement and the Prospectus (in each case, other than the
financial statements, schedules and other financial or 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; and
(xi) if the Company elects to rely on Rule 434, the Prospectus
is not "materially different", as such term is used in Rule 434, from
the prospectus included in the Registration Statement at the time of
its effectiveness or an effective post-effective amendment thereto
(including such information that is permitted to be omitted pursuant to
Rule 430A).
Such counsel shall also state that they have participated in
conferences with officers and other representatives of the Company, independent
auditors and special legal counsel of the Company and the Underwriters at which
the contents of the Registration Statement, the Preliminary Prospectus and the
Prospectus were discussed and, although such counsel is not passing upon and
does not assume responsibility for the accuracy, completeness or fairness of the
statements contained therein (except as and to the extent stated in
subparagraphs (v) and (x) above), on the basis of the foregoing (relying as to
materiality to a large extent on the statements of officers and other
representatives of the Company), such counsel has no reason to believe that the
Registration Statement, as of its effective date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of its date or the date of such opinion, included or includes any
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they
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were made, not misleading (it being understood that such counsel need express no
belief with respect to the financial statements, schedules and other financial
and statistical information included in the Registration Statement, Preliminary
Prospectus or Prospectus).
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials and as to matters involving the
application of laws of any jurisdiction other than the State of Colorado, the
Commonwealth of Pennsylvania, the Delaware Limited Liability Company Act, or the
United States (except as described below), to the extent satisfactory in form
and scope to counsel for the Underwriters, upon the opinions of Heller, Ehrman,
White & XxXxxxxxx; Xxxxxx Xxxxxx & Xxxxx; Xxxxxxx, Xxxxxxx & Xxxx; Xxxxxx Xxxx;
Xxxxxxxxx & Xxxxxxx; Xxxx & Xxxxxx; Bufete Xxxxxxxxx Xxxxxxxxx; Fox, Bennett &
Xxxxxx and Woodward, Emhart, Xxxxxxxx, Xxxxxxxxx and XxXxx. The foregoing
opinion shall also state that the Underwriters are justified in relying upon
such opinions of the special counsel firms, and copies of such opinions shall be
delivered to the Representatives and counsel for the Underwriters.
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 Representatives and the Company shall have received
the opinion of Pryor, Cashman, Xxxxxxx & Xxxxx, counsel for the Selling
Securityholder, dated the Firm Closing Date, to the effect that:
(i) the Selling Securityholder has full power (as a limited
liability company and otherwise) to enter into this Agreement and the
Custody Agreement and to sell, assign, transfer and deliver to the
Underwriters the Securities to be sold by the Selling Securityholder
hereunder in accordance with the terms of this Agreement and to perform
its obligations under the Custody Agreement; the execution and delivery
of this Agreement and the Custody Agreement have been duly authorized
by all necessary action of the Selling Securityholder; this Agreement
and the Custody Agreement have been duly executed and delivered by the
Selling Securityholder; and assuming due authorization, execution and
delivery by the Custodian, the Custody Agreement is the legal, valid,
binding and enforceable obligation of the Selling Securityholder,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject, as to enforceability, to
general principles of equity; provided, however, that no opinion need
be given as to the enforceability of the provisions of Section 8
hereof;
(ii) the delivery, for purposes of sale hereunder, by the
Selling Securityholder to the several Underwriters of certificates for
the Securities to be sold by the Selling Securityholder hereunder,
against payment therefor as provided herein, will convey good and
marketable title to such Securities to the several Underwriters, free
and clear of all security interests, liens, encumbrances, equities,
claims or other defects, provided that the Securities to be sold by the
Selling Securityholder are acquired by the several Underwriters for
value in good faith and without notice (within the meaning of 8-302 of
the Uniform Commercial Code) of any such security interests, liens,
encumbrances, equities, claims or other defects; and
(iii) the sale of the Securities to the Underwriters by the
Selling Securityholder pursuant to this Agreement, the compliance by
each Selling Securityholder with the other provisions of this Agreement
and the Custody Agreement, and consummation of the other transactions
herein contemplated do not (A) require the consent, approval,
authorization, registration or qualification of or with any
governmental authority by the Selling Securityholder, except such as
have been obtained and except such as may be required under state
securities or blue sky laws (as to which such counsel need express no
opinion); or (B) conflict with or result in a breach or violation of
any of the terms and provisions of, or constitute a default under (1)
any indenture, mortgage, deed of trust, lease or other agreement or
instrument known to such counsel to which the Selling Securityholder or
Xxxxxx X. Xxxxxxxx is a party or by which the Selling Securityholder or
Xxxxxx X. Xxxxxxxx or any of their respective properties are bound, (2)
the charter or other organizational documents or bylaws of the Selling
Securityholder, (3) any statute or (4) any
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judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator known to such counsel and
applicable to the Selling Securityholder or Xxxxxx X. Xxxxxxxx.
Such counsel shall also state that they have no reason to believe that
the information under the captions "Prospectus Summary - Selling Shareholder,"
"Management - Directors and Executive Officers - Xxxxxx X. Xxxxxxxx," "Principal
and Selling Shareholders" (as to the Selling Securityholder and Xxxxxx X.
Xxxxxxxx) and "Certain Transactions" in the Registration Statement, as of its
effective date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as of its date or the
date of such opinion, included or includes any untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading and that the disclosure provided under such sections, as they
relate to the Selling Securityholder and Xxxxxx X. Xxxxxxxx, comply as to form
to the requirements of the Act.
References to the Registration Statement and the Prospectus in this
paragraph (c) shall include any amendment or supplement thereto at the date of
such opinions.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Selling Shareholder and public officials.
(d) The Representatives shall have received the opinion of
Woodard, Emhardt, Xxxxxxxx, Xxxxxxxx & XxXxxx, dated the Firm Closing Date, to
the effect that the statements in the Prospectus under the captions "Risk
Factors -- Dependence on Proprietary Technology and Other Intellectual Property;
Risks of Infringement or Misappropriation" and "Business -- Patents, Proprietary
Information and Trademarks" and other references therein to the protection of
intellectual property, insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, provide a fair
summary of such legal matters, documents and proceedings.
Such opinion shall also state that they have no reason to believe that
the information under the captions "Risk Factors -- Dependence on Proprietary
Technology and other Intellectual Property; Risks of Infringement or
Misappropriation" and "Business -- Patents, Proprietary Information and
Trademarks" in the Registration Statement, at the time it became effective,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus, as of its date or the date of such
opinion contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading
In rendering such opinion, counsel may rely, as to matters of fact, to
the extent such counsel deems proper, on certificates of responsible officers of
the Company and public officials.
References to the Registration Statement and the Prospectus in this
paragraph (d) shall include any amendment or supplement thereto at the date of
such opinions.
(e) The Representatives shall have received the opinion of
Fox, Bennett & Xxxxxx, dated the Firm Closing Date, to the effect that the
statements in the Prospectus under the captions "Risk Factors --Government
Regulation; Risks Associated with Food Processing Products" and "Business --
Regulatory Requirements" and other references therein to U.S. Food and Drug
Administration regulations insofar as such statements constitute a summary of
the legal matters, documents or proceedings referred to therein, provide a fair
summary of such legal matters, documents and proceedings.
Such opinion shall also state that they have no reason to believe that
the information under the captions "Risk Factors -- Government Regulation; Risks
Associated with Food Processing Products" and "Business --
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Regulatory Requirements" in the Registration Statement, at the time it became
effective, contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of its date or the
date of such opinion contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, counsel may rely, as to matters of fact, to
the extent such counsel deems proper, on certificates of responsible officers of
the Company and public officials.
References to the Registration Statement and the Prospectus in this
paragraph (e) shall include any amendment or supplement thereto at the date of
such opinions.
(f) The Representatives shall have received the opinion of
Xxxxxxxxx & Xxxxxxx (English FDA), Xxxxxx Xxxx (English general and
environmental), Xxxx & Moliner (Spanish FDA) and Bufete Xxxxxxxxx Xxxxxxxxx
(Spanish formation and environmental), dated the Firm Closing Date, to the
effect that the statements in the Prospectus under the captions "Risk Factors --
Government Regulation; Risks Associated with Food Processing Products" and "--
Environmental Matters" and "Business -- Regulatory Requirements" and other
references therein to the regulation of the operations of the Company and its
subsidiaries in the United Kingdom and in Spain, insofar as such statements
constitute a summary of the legal matters, documents or proceedings referred to
therein, provide a fair and accurate summary of such legal matters, documents
and proceedings.
Such opinion shall also state that they have no reason to believe that
the information under the captions "Risk Factors -- Government Regulation; Risks
Associated with Food Processing Products," "Risk Factors -- Environmental
Matters" and "Business -- Regulatory Requirements" in the Registration
Statement, at the time it became effective, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus, as of its date or the date of such opinion contained any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
In rendering such opinion, counsel may rely, as to matters of fact, to
the extent such counsel deems proper, on certificates of responsible officers of
the Company and public officials.
References to the Registration Statement and the Prospectus in this
paragraph (f) shall include any amendment or supplement thereto at the date of
such opinions.
(g) The Representatives shall have received an opinion, dated
the Firm Closing Date, of Xxxxxx & Bird LLP, counsel for the Underwriters, with
respect to the issuance and sale of the Firm Securities to be sold by the
Company, the Registration Statement and the Prospectus, and such other related
matters as the Representatives may reasonably require, and the Company and the
Selling Securityholder shall have furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to pass upon such
matters. In rendering such opinion, such counsel may rely as to all matters of
Colorado law upon the opinion of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP,
referred to in paragraph (b) above.
(h) The Representatives shall have received from Deloitte &
Touche LLP a letter or letters dated, respectively, the date hereof and the Firm
Closing Date, in form and substance satisfactory to the Representatives, to the
effect that:
(i) they are independent accountants with respect to the
Company within the meaning of the Act and the applicable rules and
regulations thereunder;
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(ii) in their opinion, the audited consolidated financial
statements and schedules examined by them and included in the
Registration Statement and the Prospectus comply in form in all
material respects with the applicable accounting requirements of the
Act and the related published rules and regulations;
(iii) on the basis of [a reading of the latest available
interim unaudited consolidated financial statements of the Company,]
carrying out certain specified procedures (which do not constitute an
examination made in accordance with generally accepted auditing
standards and that would not necessarily reveal matters of significance
with respect to the comments set forth in this paragraph (iii)), a
reading of the minute books of the shareholders, the board of directors
and any committees thereof of the Company, and inquiries of certain
officials of the Company and its subsidiaries who have responsibility
for financial and accounting matters, nothing came to their attention
that caused them to believe that:
[(A) the unaudited consolidated financial statements
of the Company and its consolidated subsidiaries included in
the Registration Statement and the Prospectus do not comply as
to form in all material respects with the applicable
accounting requirements of the Act and the related published
rules and regulations thereunder or are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited consolidated
financial statements included in the Registration Statement
and the Prospectus;]
[(B) at a specific date not more than five business
days prior to the date of such letter, there were any changes
in the capital stock or long-term debt of the Company and its
consolidated subsidiaries or any decreases in net current
assets or stockholders' equity of the Company and its
consolidated subsidiaries, in each case compared with amounts
shown on the latest [audited] consolidated balance sheet
included in the Registration Statement and the Prospectus, or
for the period from [date that is day after date of latest
balance sheet included in the Registration Statement and
Prospectus] to such specified date, there were any decreases,
as compared with [the comparable period] in the prior fiscal
year, in sales or cost of sales, except in all instances for
changes, decreases or increases set forth in such letter;]
(iv) they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information that are derived from the general accounting
records of the Company and are included in the Registration Statement
and the Prospectus under the captions "Prospectus Summary," "Risk
Factors," "Use of Proceeds," "Price Range of Common Stock,"
"Capitalization," "Dilution," "Selected Consolidated Financial Data,"
"Management's Discussion and Analysis of Financial Condition and
Results of Operations," "Business," "Management," "Principal and
Selling Shareholders," "Description of Capital Stock," "Certain
Transactions," and "Shares Eligible from Future Sale," and in Exhibit
11 to the Registration Statement, and have compared such amounts,
percentages and financial information with such records of the Company
and with information derived from such records and have found them to
be in agreement, excluding any questions of legal interpretation; and
[(v) on the basis of a reading of the unaudited pro forma
condensed consolidated financial statements included in the
Registration Statement and the Prospectus, carrying out certain
specified procedures that would not necessarily reveal matters of
significance with respect to the comments set forth in this paragraph
(v), inquiries of certain officials of the Company and its consolidated
subsidiaries (including, without limitation, Xxxxxx Artes Graficas
Xxxxxxxx, X.X.) who have responsibility for financial and accounting
matters and proving the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the unaudited pro
forma consolidated condensed financial statements, nothing came to
their attention that caused them to believe that the unaudited pro
forma consolidated condensed financial statements do not comply as to
form in all material respects with the applicable accounting
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requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts in
the compilation of such statements.]
In the event that the letters referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that (A) such letters shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (B) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as amended as of the
date hereof.
References to the Registration Statement and the Prospectus in this
paragraph (h) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(i) The Representatives shall have received from Coopers &
Xxxxxxx, X.X. a letter or letters dated, respectively, the date hereof and the
Firm Closing Date, in form and substance satisfactory to the Representatives, to
the effect that:
(i) they are independent accountants with respect to Xxxxxx
Artes Graficas Xxxxxxxx, X.X. ("Xxxxxx") within the meaning of the Act
and the applicable rules and regulations thereunder; and
(ii) in their opinion, the audited financial statements
audited by them and included in the Registration Statement and the
Prospectus comply in form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations.
References to the Registration Statement and the Prospectus in this
paragraph (i) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(j) The Representatives shall have received a certificate,
dated the Firm Closing Date, of the principal executive officer and the
principal financial or accounting officer of the Company to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct as if made on and as of the Firm Closing
Date; the Registration Statement, as amended as of the Firm Closing
Date, does not include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading, and the Prospectus, as amended or supplemented as of the
Firm Closing Date, does 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; and the Company has performed all covenants
and agreements and satisfied all 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 or any amendment thereto has been issued, and no
proceedings for that purpose have been instituted or threatened or, to
the of the Company's knowledge, are contemplated by the Commission; and
(iii) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
neither the Company nor any of its subsidiaries has sustained any
material loss or interference with its business or properties from
fire, flood, hurricane, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or any legal or
governmental proceeding, and there has not been any material adverse
change, or, to his knowledge, any development involving a prospective
material adverse change, in the condition (financial or otherwise),
management, business prospects, net worth or results of operations of
the Company or any of its subsidiaries, except in each case as
described in or contemplated by the Prospectus (exclusive of any
amendment or supplement thereto).
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(k) The Representatives shall have received a certificate from
the Selling Securityholder, signed by the principal executive officer and the
principal financial or accounting officer of the Selling Securityholder, dated
the Firm Closing Date, to the effect that:
(i) the representations and warranties of such Selling
Securityholder in this Agreement are true and correct as if made on and
as of the Firm Closing Date;
(ii) with respect to statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto in reliance upon and in conformity
with written information furnished to the Company by the Selling
Securityholder specifically for use therein, the Registration
Statement, as amended, as of the Closing Date, does not include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading, and the
Prospectus, as amended or supplemented as of the Closing Date, does 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
light of the circumstances under which they were made, not misleading;
and
(iii) such Selling Securityholder has performed all covenants
and agreements on its part to be performed or satisfied at or prior to
the Firm Closing Date.
(l) The Representatives shall have received from each person
who is a director or executive officer of the Company an agreement to the effect
that such person will not, directly or indirectly, without the prior written
consent of Prudential Securities Incorporated, on behalf of the Underwriters,
offer, sell, offer to sell, contract to sell, pledge, grant any option to
purchase or otherwise dispose of or transfer (or announce any offer, sale, offer
of sale, contract of sale, pledge, grant of an option to purchase or other
disposition or transfer of) any shares of Common Stock or any securities
convertible into, or exchangeable or exercisable for, shares of Common Stock for
a period of 180 days subsequent to the date of the final Prospectus filed with
the Commission pursuant to Rule 424(b) of the Act promulgated by the Commission
or if no filing under Rule 424(b) is made, the date of the final Prospectus
included in the Registration Statement when declared effective under the Act.
(m) The Selling Securityholder shall have delivered to the
Representatives on or prior to the Firm Closing Date a properly completed and
executed United States Treasury Department Form W-9 (or other applicable form or
statements specified by Treasury Department regulations).
(n) On or before the Firm Closing Date, the Representatives
and counsel for the Underwriters shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Company and the Selling Securityholder.
(o) Prior to the commencement of the offering of the
Securities, the Securities shall have been included for trading on the Nasdaq
National Market, subject to official notice of issuance.
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 Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and
pay for any Option Securities shall be subject, in their discretion, to each of
the foregoing conditions to purchase the Firm Securities, except that all
references to the Firm Securities and the Firm Closing Date shall be deemed to
refer to such Option Securities and the related Option Closing Date,
respectively.
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8. Indemnification and Contribution.
(a) The Company, with respect to clauses (i) through (v)
below, and the Selling Securityholder, with respect to clauses (ii), (iii) and
(iv) below (and with respect to clauses (iii) and (iv) below only with respect
to statements or omissions in any (1) Preliminary Prospectus or Prospectus or
any amendment or supplement thereto, (2) Registration Statement or any amendment
thereto, or (3) any Application (as defined below), made in reliance upon and in
conformity with written information furnished to the Company by the Selling
Securityholder specifically for use therein), jointly and severally agree to
indemnify and hold harmless each Underwriter and each person if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter or such controlling person may become
subject under the 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:
(i) any untrue statement or alleged untrue statement
made by the Company in Section 2 of this Agreement,
(ii) any untrue statement or alleged untrue statement
made by the Selling Securityholder in Section 2A of this
Agreement,
(iii) any untrue statement or alleged untrue
statement of any material fact contained in (A) the
Registration Statement or any amendment thereto or 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 the Selling Securityholder or based upon written
information furnished by or on behalf of the Company or the
Selling Securityholder filed in any jurisdiction in order to
qualify the Securities under the securities or blue sky laws
thereof or filed with the Commission or any securities
association or securities exchange (each an "Application"),
(iv) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, 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, or
(v) any untrue statement or alleged untrue statement
of any material fact contained in any audio or visual
materials used in connection with the marketing of the
Securities, including, without limitation, slides, videos,
films and tape recordings,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the Company and the Selling
Securityholder will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement or any amendment thereto, any Preliminary Prospectus
or the Prospectus or any amendment or supplement thereto, or any Application in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use
therein; and provided further that the Company and the Selling Securityholder
will not be liable to any Underwriter or any person controlling such Underwriter
with respect to any such untrue statement or omission made in any Preliminary
Prospectus that is corrected in the Prospectus (or any amendment or supplement
thereto) if the person asserting any such loss, claim, damage or liability
purchased Securities from such Underwriter but was not sent or given a copy of
the Prospectus (as amended or supplemented) prior to or at the
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written confirmation of the sale of such Securities to such person in any case
where such delivery of the Prospectus (as amended or supplemented) is required
by the Act, unless such failure to deliver the Prospectus (as amended or
supplemented) was a result of non-compliance by the Company with Section 5(d) or
5(e) of this Agreement. This indemnity agreement will be in addition to any
liability which the Company and the Selling Securityholder may otherwise have.
Neither the Company nor the Selling Securityholder will, without the prior
written consent of the Underwriter or Underwriters purchasing, in the aggregate,
more than fifty percent (50%) of the Securities, 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 any such Underwriter or any person who controls any such 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 all of the
Underwriters and such controlling persons from all liability arising out of such
claim, action, suit or proceeding.
(b) Each Underwriter will, severally and not jointly,
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement, the Selling Securityholder and
each person, if any, who controls the Company or the Selling Securityholder
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, any
such director or officer of the Company, the Selling Securityholder or any such
controlling person of the Company or the Selling Securityholder 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 (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any amendment thereto,
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 or any amendment thereto, 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 any Underwriter through the
Representatives 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, any such director, officer
or controlling person or the Selling Securityholder 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 such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 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 8, 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 8. 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
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 8 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
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in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Representatives in the case of
paragraph (a) of this Section 8, representing the indemnified parties under such
paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party or (iii) 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 8 is unavailable or
insufficient, for any reason, 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 Securities 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 any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Securityholder on the one hand and the Underwriters 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 and the Selling Securityholder bear
to the total underwriting discounts and commissions received by the
Underwriters. 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, the Selling Securityholder or
the Underwriters, the parties' relative intents, 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, the Selling Securityholder and the Underwriters agree that it would not
be equitable if the amount of such contribution were determined by pro rata or
per capita allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take into
account the equitable considerations referred to above in this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Underwriter shall
be obligated to make contributions hereunder that in the aggregate exceed the
total public offering price of the Securities purchased by such Underwriter
under this Agreement, less the aggregate amount of any damages that such
Underwriter has otherwise been required to pay in respect of the same or any
substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among Underwriters shall be governed by the provisions
of the Prudential Securities Incorporated Master Agreement Among Underwriters.
For purposes of this paragraph (d), each person, if any, who controls an
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 such 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 or the
Selling Securityholder 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
or the Selling Securityholder, as the case may be.
(e) The liability of Selling Securityholder under this Section
8 with respect to losses, claims, damages or liabilities (or actions in respect
thereof) relating to any untrue statement or alleged untrue statement made by
the Selling Securityholder in Section 2A(h) shall not exceed an amount equal to
the product of (A) such
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losses, claims, damages or liabilities (or actions in respect thereof) and (B) a
fraction, the numerator of which is the aggregate initial public offering price
(net of underwriting discounts and commissions) of the Securities sold by the
Selling Securityholder to the Underwriters and the denominator of which is the
aggregate initial public offering price (net of underwriting discounts and
commissions) of the Securities sold by the Selling Securityholders and the
Company to the Underwriters. Notwithstanding the immediately preceding sentence,
the liability of the Selling Securityholder under this Section 8 shall not
exceed an amount equal to the aggregate initial public offering price (net of
underwriting discounts and commissions) of the Securities sold by the Selling
Securityholder to the Underwriters.
(f) The parties hereto agree that the representations and
warranties made in Section 2A(h) of this Agreement and any indemnification
pursuant to Section 8 of this Agreement with respect thereto shall survive for
two years after the Firm Closing Date, or if there is an Option Closing Date,
then the Option Closing Date; provided that such limitation period shall not
apply with respect to claims made prior to the expiration of such two year
limitation period.
9. Default of Underwriters. If one or more Underwriters default in
their obligations to purchase Firm Securities or Option Securities hereunder and
the aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or Option
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase. If one or more Underwriters so default with respect to an aggregate
number of Securities that is more than ten percent of the aggregate number of
Firm Securities or Option Securities, as the case may be, to be purchased by all
of the Underwriters at such time hereunder, and if arrangements satisfactory to
the Representatives are not made within 36 hours after such default for the
purchase by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives) of the Securities with respect to
which such default occurs, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company other than as provided
in Section 10 hereof. In the event of any default by one or more Underwriters as
described in this Section 9, the Representatives shall have the right to
postpone the Firm Closing Date or the Option Closing Date, as the case may be,
established as provided in Section 3 hereof, for not more than seven business
days in order that any necessary changes may be made in the arrangements or
documents for the purchase and delivery of the Firm Securities or Option
Securities, as the case may be. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 9. Nothing herein shall relieve any defaulting Underwriter from
liability for its default.
10. Survival. Except as specifically limited in Section 8(f) of this
Agreement, the respective representations, warranties, agreements, covenants,
indemnities and other statements of the Company, its officers, the Selling
Securityholder and the several Underwriters 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, any Selling
Securityholder, any Underwriter or any controlling person referred to in Section
8 hereof and (ii) delivery of and payment for the Securities. The respective
agreements, covenants, indemnities and other statements set forth in Sections 6
and 8 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
11. Termination. (a) This Agreement may be terminated with respect to
the Firm Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Company and the Selling Securityholder given
prior to the Firm Closing Date or the related Option Closing Date, respectively,
in the event that the Company or the Selling Securityholder shall have failed,
refused or been unable to perform all obligations and satisfy all
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conditions on their part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Firm Closing Date or such Option Closing Date,
respectively,
(i) the Company shall have, in the sole judgment of the
Representatives, sustained any material loss or interference with its
business or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding or 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 condition
(financial or otherwise), business prospects, net worth or results of
operations of the Company, except in each case as described in or
contemplated by the Prospectus (exclusive of any amendment or
supplement thereto);
(ii) trading in the Common Stock shall have been suspended by
the Commission or the Nasdaq National Market or trading in securities
generally on the New York Stock Exchange or Nasdaq National Market
shall have been suspended or minimum or maximum prices shall have been
established on such exchange or market system;
(iii) a banking moratorium shall have been declared by New
York or United States authorities; or
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or (C) any other calamity or crisis or
material adverse change in general economic, political or financial
conditions having an effect on the U.S. financial markets that, in the
sole judgment of the Representatives, makes it impractical or
inadvisable to proceed with the public offering or the delivery of the
Securities as contemplated by the Registration Statement, as amended as
of the date hereof.
(b) Termination of this Agreement pursuant to this Section 11
shall be without liability of any party to any other party except as provided in
Section 10 hereof.
12. Information Supplied by Underwriters. The statements set forth in
the last paragraph on the front cover page, the last two paragraphs on the
inside front cover, and the paragraphs under the heading "Underwriting" in any
Preliminary Prospectus or the Prospectus (to the extent such statements relate
to the Underwriters) constitute the only information furnished by any
Underwriter through the Representatives to the Company for the purposes of
Sections 2(b) and 8 hereof. The Underwriters confirm that such statements (to
such extent) are correct.
13. Notices. All communications hereunder shall be in writing and, if
sent to any of the Underwriters, shall be delivered or sent by mail, and either
telex or facsimile transmission to Prudential Securities Incorporated, Xxx Xxx
Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Transactions Group; if
sent to the Company, shall be delivered or sent by mail, telex or facsimile
transmission and confirmed in writing to the Company at 0 Xxxxxxxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention: Xxxx X. Xxxxxx,
with a copy to Xxxxxxx X. Xxxxx, Esq., Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP,
0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000; and if sent to the
Selling Securityholder, shall be delivered to or sent by mail, telex or
facsimile transmission and confirmed in writing to the Selling Securityholder at
________________, with a copy to Xxxxx X. Xxxxx, Esq., Pryor, Cashman, Xxxxxxx &
Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
14. Successors. This Agreement shall inure to the benefit of and shall
be binding upon the several Underwriters, the Company, the Selling
Securityholder 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 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 and the
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Selling Securityholder contained in Section 8 of this Agreement shall also be
for the benefit of any person or persons who control any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act and (ii) the
indemnities of the Underwriters contained in Section 8 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, any person or persons who
control the Company within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, the Selling Securityholder and any person or persons who
control the Selling Securityholder within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act. No purchaser of Securities from any
Underwriter shall be deemed a successor because of such purchase.
15. 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.
16. Consent to Jurisdiction and Service of Process. All judicial
proceedings arising out of or relating to this Agreement may be brought in any
state or federal court of competent jurisdiction in the State of New York, and
by execution and delivery of this Agreement, the Selling Securityholder accepts
for itself and in connection with its properties, generally and unconditionally,
the nonexclusive jurisdiction of the aforesaid courts and waives any defense of
forum non conveniens and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Agreement. The Selling Securityholder designates
and appoints Xxxxx X. Xxxxx, and such other persons as may hereafter be selected
by the Selling Securityholder irrevocably agreeing in writing to so serve, as
its agent to receive on its behalf service of all process in any such
proceedings in any such court, such service being hereby acknowledged by the
Selling Securityholder to be effective and binding service in every respect. A
copy of any such process so served shall be mailed by registered mail to the
Selling Securityholder at its address provided in Section 13 hereof; provided,
however, that, unless otherwise provided by applicable law, any failure to mail
such copy shall not affect the validity of service of such process. If any agent
appointed by the Selling Securityholder refuses to accept service, the Selling
Securityholder hereby agrees that service of process sufficient for personal
jurisdiction in any action against the Selling Securityholder in the State of
New York may be made by registered or certified mail, return receipt requested,
to the Selling Securityholder at its address provided in Section 13 hereof, and
the Selling Securityholder hereby acknowledges that such service shall be
effective and binding in every respect. Nothing herein shall affect the right to
serve process in any other manner permitted by law or shall limit the right of
any Underwriter to bring proceedings against the Selling Securityholder in the
courts of any other jurisdiction.
17. 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, the
Selling Securityholder and each of the several Underwriters.
Very truly yours,
EPL TECHNOLOGIES, INC.
By
Name:
Title:
TRILON DOMINION
PARTNERS, L.L.C.
By
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
PRUDENTIAL SECURITIES INCORPORATED
By
Xxxx-Xxxxxx Canfin
Managing Director
For itself and on behalf of the Underwriters.
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SCHEDULE 1
UNDERWRITERS
Number of Firm
Securities to
Underwriter be Purchased
Prudential Securities Incorporated
Pennsylvania Merchant Group
---------
3,500,000
