Optek Technology, Inc.
2,500,000 Shares
Common Stock
UNDERWRITING AGREEMENT
March ___, 1998
PRUDENTIAL SECURITIES INCORPORATED
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ABN AMRO INCORPORATED
As a Representatives of the several Underwriters
c/o Prudential Securities Incorporated
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Optek Technology, Inc., a Delaware corporation (the "Company")
and First Source Financial LLP, an Illinois limited liability
partnership (the ASelling Securityholder@), hereby confirm their
agreement with the several underwriters named in Schedule I
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 Selling Securityholder proposes to sell to the
several Underwriters an aggregate of 2,500,000 shares (the "Firm
Securities") of the Company's Common Stock, par value $0.01 per
share ("Common Stock"). The Selling Securityholder also proposes
to sell to the several Underwriters not more than 375,000
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) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"). A
registration statement on such Form (File No. 333-____________)
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 Act, and one or
more amendments to such registration statement may have been so
filed. After the execution of this Agreement, the 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 and, if reacquired to be filed pursuant to Rules
434(c)(2) and 424(b), an Integrated Prospectus (as hereinafter
defined), in either case, containing such information as is
required or permitted by Rule 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 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 (i) all financial schedules and exhibits
thereto, (ii) all documents incorporated by reference therein
filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and (iii) any information omitted therefrom
pursuant to Rule 430A under the Act and included in the
Prospectus (as hereinafter defined) or, if required to be filed
pursuant to Rule 434(c)(2) and 424(b), in the Integrated
Prospectus; 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), including all documents incorporated by
reference therein filed under the Exchange Act; 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
A. 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, including, in the case of clauses
(A), (B) or (C) of this sentence, all documents incorporated by
reference therein filed under the Exchange Act;
the term "Integrated Prospectus" means a prospectus first filed
with the Commission pursuant to Rules 434(c)(2) and 424(b) under
the Act including all documents incorporated by reference
therein; and the Term "Term Sheet" means any abbreviated term
sheet that satisfies the requirements of Rule 434 under the Act.
Any reference in this Agreement to an "amendment or supplement"
to any Preliminary Prospectus, the Prospectus or any Integrated
Prospectus or an "amendment" to any registration statement
(including the Registration Statement) shall be deemed to include
any document incorporated by reference therein that is filed with
the Commission under the Exchange Act after the date of such
Preliminary Prospectus, Prospectus, Integrated Prospectus or
registration statement, as the case may be; any reference herein
to the "date" of a Prospectus that includes a Term Sheet shall
mean the date of such Term Sheet. For purposes of the preceding
sentence, any reference to the "effective date" of an amendment
to a registration statement shall, if such amendment is effected
by means of the filing with the Commission under the Exchange Act
of a document incorporated by reference in such registration
statement, be deemed to refer to the date on which such document
was so filed with the Commission.
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus. When any
Preliminary Prospectus or any amendment or supplement thereto 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, the
Exchange Act and the respective 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, the Exchange Act and the respective
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 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, (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, the Exchange Act and
the respective 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 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.
(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 in good
standing under the laws of their respective jurisdictions of
incorporation and are duly qualified to transact business as
foreign corporations 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 does not amount to a material liability or
disability to the Company and its subsidiaries, taken as a whole.
(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, each of the Prospectus and any Integrated
Prospectus or, if the Prospectus and any required Integrated
Prospectus are 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 of each of the Company's
subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable and 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 each of the Prospectus and any
Integrated Prospectus or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus. All of the issued shares of capital
stock of the Company have been duly authorized and validly issued
and are fully paid and nonassessable. The Firm Securities 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), will be validly issued, fully paid and nonassessable. No
holders of outstanding shares of capital stock of the Company are
entitled as such 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 in the Prospectus and any Integrated Prospectus
or, if the Prospectus and any required Integrated Prospectus are
not in existence, the most recent Preliminary Prospectus.
(i) Except as described in the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary
Prospectus), there are not 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 any Integrated
Prospectus (or, if the Prospectus and any required Integrated
Prospectus are 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 dates and 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 each of the Prospectus and any Integrated Prospectus
(or, if the Prospectus and any required Integrated Prospectus are
not in existence, the most recent Preliminary Prospectus) and in
the Company's Annual Report on Form 10-K for the fiscal year
ended October 31, 1997, fairly present, on the basis stated in
each of the Prospectus and any Integrated Prospectus (or such
Preliminary Prospectus) and such Annual Report, the information
included therein.
(k) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and
delivered their report with respect to the audited consolidated
financial statements and schedules included in the Registration
Statement and each of the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary
Prospectus), are independent public accountants as required by
the Act, the Exchange Act and the related published rules and
regulations thereunder.
(l) The execution and delivery 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.
(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 or, if each of the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus), and 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 any Integrated Prospectus or to be
filed as an exhibit to the Registration Statement that is not
described therein (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus) or filed as required.
(n) The offering and sale of the Securities to the Underwriters
by the Selling Securityholder 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 (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, or the charter
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, the Prospectus or any
Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus), neither the Company nor any of its
subsidiaries has sustained any material loss or interference with
their respective businesses 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
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 or, if each of the Prospectus and
any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are 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 Selling Securityholder under this Agreement).
(q) The Company has not distributed and, prior to the later of
(i) the 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 the Registration Statement, the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus), (1) 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; (2) the Company has not purchased
any of its outstanding capital stock, nor declared, paid or
otherwise made any dividend or distribution of any kind on its
capital stock; and (3) 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 and any Integrated
Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary
Prospectus).
(s) The Company and each of its subsidiaries have good and
marketable title in fee simple to all items of real property and
marketable title to all 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 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 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 and
any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(t) No labor dispute with the employees of the Company or any
of its subsidiaries exists or is threatened or imminent that
could result in a material adverse change in the condition
(financial or otherwise), business prospects, net worth or
results of operations of the Company and its subsidiaries, except
as described in or contemplated by the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(u) The Company and its subsidiaries own or possess, or can
acquire 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
which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a
material adverse change in the condition (financial or
otherwise), business prospects, net worth or results of
operations of the Company and its subsidiaries, except as
described in or contemplated by the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated
Prospectus are 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 materially and adversely affect the condition (financial or
otherwise), business prospects, net worth or results of
operations of the Company and its subsidiaries, except as
described in or contemplated by the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary
Prospectus).
(w) 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, 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 and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are 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 change in the condition (financial or
otherwise), business prospects, net worth or results of
operations of the Company and its subsidiaries, except as
described in or contemplated by the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated
Prospectus are 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 or has requested
extensions thereof (except in any case in which the failure so to
file would not have a material adverse effect on the Company and
its subsidiaries) and has paid all taxes 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 assessment, fine or penalty that is currently
being contested in good faith or as described in or contemplated
by the Prospectus and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus).
(aa) Neither the Company nor any of its subsidiaries is in
violation of any foreign, federal, or state law or regulation
relating to occupational safety and health or to the storage,
handling or transportation of hazardous or toxic materials and
the Company and its subsidiaries have received all permits,
licenses or other approvals required of them under applicable
foreign, federal, state occupational safety and health and
environmental laws and regulations to conduct their respective
businesses, and the Company and each such 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
change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and
its subsidiaries, except as described in or contemplated by the
Prospectus and any Integrated Prospectus (or, if the Prospectus
and any required Integrated Prospectus are 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
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 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
any other equity securities of any corporation or has any equity
interest in any firm, partnership, association or other entity,
except as described in or contemplated by the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(dd) The Company and each of its subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (1) transactions are executed in accordance with
management's general or specific authorizations; (2) transactions
are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (3) access to
assets is permitted only in accordance with management's general
or specific authorization; and (4) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(ee) 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 observance 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 of its
subsidiaries or any of their respective properties is bound or
may be affected in any material adverse respect with regard to
property, business or operations of the Company and its
subsidiaries.
3. The Selling Securityholder represents and warrants to, and
agrees with, each of the several Underwriters that:
(a) The Selling Securityholder has full power (corporate and
other) 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 and delivery of this Agreement have
been duly authorized by all necessary corporate 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 power of attorney and custody agreement (with respect to such
Selling Securityholder, the "Power-of-Attorney" and the "Custody
Agreement", respectively), each in the form heretofore delivered
to the Representatives, appointing ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇▇, and each of them, as the Selling
Securityholder=s attorney-in-fact (the "Attorney-in-Fact") with
authority to execute, deliver and perform this Agreement on
behalf of such Selling Securityholder and appointing [insert name
of Custodian], 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 (corporate and other) to enter into
the Custody Agreement and the Power-of-Attorney and to perform
its obligations under the Custody Agreement. The execution and
delivery of the Custody Agreement and the Power-of-Attorney have
been duly authorized by all necessary corporate action of the
Selling Securityholder; the Custody Agreement and the
Power-of-Attorney have been duly executed and delivered by the
Selling Securityholder and, assuming due authorization, execution
and delivery by the Custodian, are the legal, valid, binding and
enforceable instruments of the Selling Securityholder. 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, the appointment of the
Attorney-in-Fact and the right, power and authority of the
Attorney-in-Fact to execute and deliver this Agreement, to agree
on the price at which the Securities are to be sold to the
Underwriters, 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, whether by its liquidation or dissolution or by the
occurrence of any other event. If any corporate or partnership
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 or not the Custodian or the
Attorney-in-Fact shall have received notice thereof.
(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
marketable 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) To the extent that any statements or omissions are made in
the Registration Statement, any Preliminary Prospectus, the
Prospectus and any Integrated 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, the Exchange 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 reviewed the
Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary
Prospectus) and the Registration Statement, and the information
regarding the Selling Securityholder set forth therein under the
caption APrincipal and Selling Stockholders@ is complete and
accurate.
(f) Based on a review of the Registration Statement and a due
and diligent inquiry, 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; (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 Integrated Prospectus or any amendment or supplement
thereto is filed with the Commission pursuant to Rule 424(b) (or,
if 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 any Integrated
Prospectus, each 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
foegoing provisions of this paragraph (f) do not apply to
statements or omissions made in reliance upon and in conformity
with written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein.
(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 and any Integrated Prospectus (or, if
the Prospectus and any required Integrated Prospectus are 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 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 and 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 subsidiaries is a party or by which the Selling
Securityholder or any of its subsidiaries or any of the Selling
Securityholder=s properties are bound, or the charter documents
or by-laws of the Selling Securityholder 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 Selling Securityholder or any of its
subsidiaries.
4. 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 Selling Securityholder
agrees to sell to each of the Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase from
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 Stockholder at least 48 hours prior to the Firm
Closing Date, shall be delivered by or on behalf of 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 Selling
Securityholder. Such delivery of and payment for the Firm
Securities shall be made at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ at
9:30 A.M., New York time, on March ___, 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 11 hereof, such time and date of delivery against payment
being herein referred to as the "Firm Closing Date". The Company
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 the
Company's transfer agent or registrar or of Prudential Securities
Incorporated at least 24 hours prior to the Firm Closing Date.
(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 Selling Securityholder
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 dividend 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 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 and the Selling
Securityholder setting forth the aggregate principal amount 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 11 hereof, is
herein called the "Option Closing Date" with respect to such
Option Securities. Upon exercise of the option as provided
herein, the Selling Securityholder 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 Selling Securityholder, 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 Selling Securityholder hereby acknowledges 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 Selling Securityholder. Furthermore, in the event that the
Underwriters wire funds to the Selling Securityholder prior to
the completion of the closing of a purchase of Securities, the
Selling Securityholder hereby acknowledges that until the
Underwriters execute and deliver a receipt for the Securities, by
facsimile or otherwise, 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 Selling Securityholder to the Underwriters on
the same day the wired funds were received by the Selling
Securityholder, the Selling Securityholder agrees to pay to the
Underwriters in respect of each day the wire funds are not
returned by it, in same-day funds, interest on the amount of such
wire 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.
5 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.
6 Covenants of the Company. 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 Rule 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 Exchange Act and the respective 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 each of the Prospectus
and any Integrated Prospectus, as then amended or supplemented,
and (ii) will not file with the Commission the prospectus or the
amendment referred to in the third sentence of Section 2(a)
hereof, any amendment or supplement to such prospectus or any
amendment to the Registration Statement or any Rule 462(b)
Registration Statement of which the Representatives shall not
previously have been advised and furnished with a copy for a
reasonable period of time prior to the proposed filing and as to
which filing the 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 and any Integrated
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 and any
Integrated 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 post-effective amendment
thereto or any order directed at any document incorporated by
reference in the Registration Statement or the Prospectus and any
required Integrated Prospectus or any amendment or supplement
thereto or any order preventing or suspending the use of any
Preliminary Prospectus or, the Prospectus and any Integrated
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 any Preliminary Prospectus, the
Prospectus and any Integrated 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 arrange for the qualification of 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 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 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, the Exchange Act or the respective rules
or regulations of the Commission thereunder, the Company will
promptly notify the Representatives thereof and, subject to
Section 6(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 or any
Integrated 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) 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, the Prospectus or any Integrated
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 AM, 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 AM, 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 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 sell
or dispose (or announce any offer, sale, offer of sale, contract
of sale, pledge, grant of any option to purchase or other sale or
disposition) of any shares of Common Stock or any securities
convertible into, or exchangeable or exercisable for, shares of
Common Stock for a period of ninety (90) days after the date
hereof, except pursuant to this Agreement and except for
issuances pursuant to the exercise of employee stock options
outstanding on the date hereof, or pursuant to the terms of
convertible securities of the Company outstanding on the date
hereof.
(h) 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 Selling Securityholders under this
Agreement).
(i) The Company will obtain the agreements described in Section
9(f) hereof prior to the Firm Closing Date.
(j) 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 and any Integrated 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.
(k) 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).
(l) The Company will use its best efforts to 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. The Company will ensure that the
Securities remain included for quotation on the Nasdaq National
Market following the Firm Closing Date.
7 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 13 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, the
Prospectus and any Integrated 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, 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
fees and disbursements of counsel for the Underwriters relating
thereto, (vi) the filing fees of the Commission (and the National
Association of Securities Dealers, Inc.) relating to the
Securities, (vii) the quotation of the Securities on the Nasdaq
National Market, (viii) meetings with prospective investors in
the Securities (other than 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 shall have been specifically approved by the
Representatives to be paid for by the Underwriters). 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 9 hereof is not satisfied, because this Agreement is
terminated pursuant to Section 13 hereof or because of any
failure, refusal or inability on the part of the Company 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 will reimburse
the Underwriters severally upon demand for all out-of-pocket
expenses (including fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed
purchase and sale of the Securities. The Company 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.
8 Covenants of the Selling Securityholder
(a) The Selling Securityholder will not, directly or indirectly,
without the prior written consent of Prudential Securities
Incorporated, offer, sell, offer to sell, contract to sell,
pledge, grant any option to purchase or otherwise sell or dispose
(or announce any offer, sale, offer of sale, contract of sale,
pledge, grant of any option to purchase or other sale or
disposition) of any Securities legally or beneficially owned by
such Selling Securityholder or any securities convertible into,
or exchangeable or exercisable for, Securities for a period of
ninety (90) days after the date hereof.
(b) Such 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 Selling Securityholder under
this Agreement).
(c) The Selling Securityholder agrees to deliver to you prior to
or at the Firm Closing Date a properly completed and executed
United States Treasury Department Form W-9 (or other applicable
form or statement specified by Treasury Department regulation in
lieu thereof).
9 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 its respective
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 initial 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 Integrated Prospectus and
any amendment or supplement thereto shall have been filed with
the Commission in the manner and within the time period required
by Rule 434 and 424(b) under the Act; no stop order suspending
the effectiveness of the Registration Statement or any
post-effective amendment thereto and no order directed at any
document incorporated by reference in the Registration Statement,
the Prospectus or any Integrated Prospectus or any amendment or
supplement 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, the
Prospectus or any Integrated Prospectus or otherwise).
(b) The Representatives shall have received an opinion, dated
the Firm Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the
Company, to the effect that:
(i) the Company and each of its subsidiaries listed in Schedule
2 hereto (the "Subsidiaries") have been duly incorporated and are
validly existing as corporations in good standing under the laws
of their respective jurisdictions of incorporation and are duly
qualified to transact business as foreign corporations 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 does
not amount to a material liability or disability to the Company
and the Subsidiaries, taken as a whole;
(ii) the Company and each of the Subsidiaries have corporate
power to own or lease their respective properties and conduct
their respective businesses as described in the Registration
Statement and the Prospectus or any Integrated Prospectus, and
the Company has corporate power to enter into this Agreement and
to carry out all the terms and provisions hereof and thereof to
be carried out by it;
(iii) the issued shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable and are owned beneficially by the
Company free and clear of any perfected security interests or, to
the best 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 or any Integrated
Prospectus; all of the issued shares of capital stock of the
Company have been duly authorized and validly issued and are
fully paid and nonassessable, have been issued in compliance with
all applicable federal and state securities laws and were not
issued in violation of or subject to any preemptive rights or
other rights to subscribe for or purchase securities; the Firm
Securities have been duly authorized by all necessary corporate
action of the Company and, when delivered to and paid for by the
Underwriters pursuant to this Agreement, will be validly issued,
fully paid and nonassessable; the Securities have been duly
included for trading on the Nasdaq National Market; no holders of
outstanding shares of capital stock of the Company are entitled
as such to any preemptive or other 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; the warrant pursuant to which the
Securities were issued was duly exercised;
(v) the statements set forth under the heading "Description of
Capital Stock" in each of the Prospectus and any Integrated
Prospectus, insofar as such statements purport to summarize
certain provisions of the capital stock of the Company, provide a
fair summary of such provisions;
(vi) the execution and delivery 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) no legal or governmental proceedings are pending to
which the Company or any of the Subsidiaries is a party or to
which the property of the Company or any of the Subsidiaries is
subject that are required to be described in the Registration
Statement, the Prospectus and any Integrated Prospectus and are
not described therein, and, to the best knowledge of such
counsel, no such proceedings have been threatened against the
Company or any of the 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, the
Prospectus and any Integrated Prospectus or to be filed as an
exhibit to the Registration Statement that is not described
therein or filed as required;
(viii) the offering and sale of the Securities to the
Underwriters by the Selling Securityholder 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 (A) require the consent,
approval, authorization, registration or qualification of or with
any governmental authority, except such as have been obtained and
such as may be required under state securities or blue sky laws,
or (B) 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, known to such counsel, to which the Company or any of
the Subsidiaries is a party or by which the Company or any of the
Subsidiaries or any of their respective properties are bound, or
the charter documents or by-laws of the Company or any of the
Subsidiaries, or any statute or 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 of the Subsidiaries;
(ix) the Registration Statement is effective under the Act; any
required filing of the Prospectus, or any Term Sheet that
constitutes a part thereof, and any Integrated Prospectus
pursuant to Rules 434 and 424(b) has been made in the manner and
within the time period required by Rules 434 and 424(b); and no
stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto and no order
directed at any document incorporated by reference in the
Registration Statement, the Prospectus and any Integrated
Prospectus or any amendment or supplement thereto has been
issued, and no proceedings for that purpose have been instituted
or threatened or, to the best knowledge of such counsel, are
contemplated by the Commission;
(x) the Registration Statement originally filed with respect to
the Securities and each amendment thereto and any Rule 462(b)
Registration Statement, the Prospectus and any Integrated
Prospectus (in each case, including the documents incorporated by
reference therein but not including the financial statements and
other financial 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,
the Exchange Act and the respective rules and regulations of the
Commission thereunder;
(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 any 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 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 and any Integrated 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 were made, not
misleading.
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 Texas or Delaware or the
United States, to the extent satisfactory in form and scope to
counsel for the Underwriters, upon the opinion of Mexican
counsel. The foregoing opinion shall also state that the
Underwriters are justified in relying upon such opinion of
Mexican counsel, and copies of such opinion shall be delivered to
the Representatives and counsel for the Underwriters.
References to the Registration Statement and the Prospectus and
any Integrated Prospectus in this paragraph (b) shall include any
amendment or supplement thereto at the date of such opinion.
(c) The Representatives shall have received an opinion, dated
the Firm Closing Date, of [patent and trademark counsel], patent
and trademark counsel for the Company in such form and covering
such intellectual property matters as are reasonably requested by
the Representative and counsel for the Underwriters.
(d) The Representatives shall have received an opinion, dated
the Firm Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, counsel for the
Underwriters, with respect to the issuance and sale of the Firm
Securities, the Registration Statement, the Prospectus, or any
Integrated Prospectus, and such other related matters as the
Representatives may reasonably require, and the Company 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 law upon the opinion of referred to in
paragraph (b) above.
(e) The Selling Securityholder shall have furnished to the
Representatives the opinion of [First Source outside counsel],
counsel for the Selling Securityholder, dated the Closing Date,
to the effect that:
(i) the Selling Securityholder has full corporate power to enter
into this Agreement, the Custody Agreement, and the
Power-of-Attorney and to sell, transfer and deliver the
Securities being sold by the Selling Securityholder hereunder in
the manner provided in this Agreement and to perform its
obligations under the Custody Agreement; the execution and
delivery of this Agreement, the Custody Agreement and the
Power-of-Attorney have been duly authorized by all necessary
corporate action of the Selling Securityholder; this Agreement,
the Custody Agreement and the Power-of-Attorney have been duly
executed and delivered by the Selling Securityholder; assuming
due authorization, execution and delivery by the Custodian, the
Custody Agreement and the Power-of-Attorney are the legal, valid,
binding and enforceable instruments 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 (regardless
of whether enforcement is sought in a proceeding in equity or at
law);
(ii) the delivery by the Selling Securityholder to the several
Underwriters of certificates for the Securities being sold
hereunder by the Selling Securityholder 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 interest, liens, encumbrances, equities, claims or other
defects;
(iii) 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 and such as may be required under state securities or
blue sky laws, 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 subsidiaries is a party or by which the Selling
Securityholder or any of its subsidiaries or any of the Selling
Securityholder's or any of its subsidiaries' respective
properties are bound, or the charter documents or by-laws of the
Selling Securityholder 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 Selling Securityholder or any of its subsidiaries.
In rendering such opinion, such counsel may rely, as to the
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 opinion.
(f) The Representatives shall have received from KPMG Peat
Marwick 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
and its consolidated subsidiaries within the meaning of the Act,
the Exchange Act and the applicable rules and regulations
thereunder;
(ii) in their opinion, the audited consolidated financial
statements and schedules examined by them and included in the
Registration Statement, the Prospectus and any Integrated
Prospectus comply in form in all material respects with the
applicable accounting requirements of the Act, the Exchange Act
and the related published rules and regulations thereunder;
(iii) [assumes no reports will be filed for interim
financial] on the basis of a reading of the latest available
interim unaudited consolidated condensed financial statements of
the Company and its consolidated subsidiaries, carrying out
certain specified procedures (which do not constitute an
examination made in accordance with generally accepted auditing
standards) 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 each of its consolidated subsidiaries, and
inquiries of certain officials of the Company and its
consolidated subsidiaries who have responsibility for financial
and accounting matters, nothing came to their attention that
caused them to believe that:
(A) the unaudited consolidated condensed financial statements of
the Company and its consolidated subsidiaries included in the
Registration Statement, the Prospectus and any Integrated
Prospectus do not comply in form in all material respects with
the applicable accounting requirements of the Act, the Exchange
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 and any Integrated
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
January 31, 1998 unaudited consolidated balance sheet included in
the Registration Statement, the Prospectus and any Integrated
Prospectus, or for the period from January 31, 1998 to such
specified date there were any decreases, as compared with [insert
appropriate comparative period or, if no appropriate period
exists, insert dollar amounts for each item], in sales, net
revenues, net income before income taxes or total or per share
amounts of net income of the Company and its consolidated
subsidiaries [conform the above list of items to line items in
financial statements and add other line items as appropriate],
except in all instances for changes, decreases or increases set
forth in such letter; and
(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 its consolidated
subsidiaries and are included in the Registration Statement, the
Prospectus and any Integrated Prospectus under the captions
[headings as appropriate], in Exhibit II to the Registration
Statement or under [insert item numbers and titles of any
Exchange Act reports containing information as to which comfort
is sought] incorporated by reference in the Registration
Statement, the Prospectus and any Integrated Prospectus, and have
compared such amounts, percentages and financial information with
such records of the Company and its consolidated subsidiaries and
with information derived from such records and have found them to
be in agreement, excluding any questions of legal interpretation.
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, the Prospectus and any
Integrated Prospectus in this paragraph (f) with respect to
either letter referred to above shall include any amendment or
supplement thereto at the date of such letter.
(g) 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, the Prospectus and
any Integrated 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 post-effective amendment thereto
and no order directed at any document incorporated by reference
in the Registration Statement or the Prospectus or any amendment
or supplement thereto has been issued, and no proceedings for
that purpose have been instituted or threatened or, to the best
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, the
Prospectus and any Integrated Prospectus, neither the Company nor
any of its Subsidiaries has sustained any material loss or
interference with their respective businesses 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 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
and any Integrated Prospectus.
(h) 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 the Selling
Securityholder in this Agreement are true and correct as if made
on and as of the Firm Closing Date;
(ii) 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 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 the light
of the circumstances under which they were made, not misleading;
(iii) the Selling Securityholder has reviewed the Prospectus,
any Integrated Prospectus and the Registration Statement, as
amended as of the Closing Date, and the information regarding
the Selling Securityholder set forth therein under the caption
APrincipal and Selling Stockholders@ is complete and accurate;
(iv) based on a review of the Registration Statement and a due
and diligent inquiry, nothing came to the attention of the
Selling Securityholder that caused the Selling Securityholder to
believe that (i) the Preliminary Prospectus as amended or
supplemented as of the Closing Date, 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; (ii) when the Registration Statement or any amendment
thereto was declared effective, it included any untrue statement
of a material fact or omitted to state any material fact
necessary to make the statements therein not misleading; or (iii)
the Prospectus or any Integrated Prospectus, each as amended or
supplemented as of the Closing Date, 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;
(v) the Selling Securityholder has performed all covenants and
agreements on its part to be performed or satisfied at or prior
to the Closing Date.
(i) The Representatives shall have received from each person who
is a director or officer of the Company or who beneficially owns
five percent or more of the shares of Common Stock 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 (except to the extent already
pledged), grant any option to purchase or otherwise sell or
dispose (or announce any offer, sale, offer of sale, contract of
sale, pledge, grant of an option to purchase or other sale or
disposition) of any shares of Common Stock or any securities
convertible into, or exchangeable or exercisable for, shares of
Common Stock for a period of ninety (90) days after the date of
this Agreement.
(j) 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.
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.
10. 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, in the case of the Selling
Securityholder, with respect to clauses (iii) and (iv) below,
only with respect to statements or omissions in any (1)
Preliminary Prospectus, Integrated 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 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 3 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, any Integrated
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, any Integrated 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, tape records,
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. 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 the clause, will reimburse, as incurred, any legal or
other expenses reasonably incurred by the Company, any such
director, officer of 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 10 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 10, 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 10. 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 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 10, 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 10 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 Securityholders 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 Securityholders 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 10(d). Notwithstanding any other
provision of this paragraph 10(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 fraud
representation (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 ad 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
10(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.
11. 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 11 hereof. In the event of any
default by one or more Underwriters as described in this Section
11, 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.
12. Survival. 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,
the Selling Securityholder, any Underwriter or any controlling
person referred to in Section 10 hereof and (ii) delivery of and
payment for the Securities. The respective agreements,
covenants, indemnities and other statements set forth in Sections
7 and 10 hereof shall remain in full force and effect, regardless
of any termination or cancellation of this Agreement.
13. 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
given prior to the Firm Closing Date or the related Option
Closing Date, respectively, in the event that the Company shall
have failed, refused or been unable to perform all obligations
and satisfy all conditions on its 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 or any of its subsidiaries shall have, in the
sole judgment of the Representatives, sustained any material loss
or interference with their respective businesses 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 and its subsidiaries,
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 the 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 Texas,
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 13
shall be without liability of any party to any other party except
as provided in Section 12 hereof.
14. Information Supplied by Underwriters. The statements set
forth in the last paragraph on the front cover page and under the
heading "Underwriting" in any Preliminary Prospectus, the
Prospectus or any Integrated 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 10 hereof. The Underwriters confirm that such statements (to
such extent) are correct.
15. Notices. All communications hereunder shall be in writing
and, if sent to any of the Underwriters, shall be delivered or
sent by mail, telex or facsimile transmission and confirmed in
writing to Prudential Securities Incorporated, ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇; if sent to the Selling
Securityholder, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to the Selling
Securityholder at [address].
16. Successors. This Agreement shall inure to the benefit of
and shall be binding upon the several Underwriters, the Company
and their respective successors and legal representatives, and
nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any other person any legal or
equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained, this Agreement and
all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of such persons and for
the benefit of no other person except that (i) the indemnities of
the Company contained in Section 10 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 10 of this Agreement shall also
be for the benefit of the directors of the Company, the officers
of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act. No
purchaser of Securities from any Underwriter shall be deemed a
successor because of such purchase.
17. 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.
18. 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 _____________, and such other persons as
may hereafter be selected by the Selling Securityholder
irrevocable 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 Shareholder 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 15 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 Shareholder 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 15 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.
19. 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.
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for
that purpose, whereupon this letter shall constitute an agreement
binding the Company and each of the several Underwriters.
Very truly yours,
OPTEK TECHNOLOGY, INC.
By _________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, CFO
FIRST SOURCE FINANCIAL LLP
By ______________________________
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ABN AMRO Incorporated
By: PRUDENTIAL SECURITIES INCORPORATED
By ______________________________________
▇▇▇▇-▇▇▇▇▇▇ Canfin
Managing Director
For itself and on behalf of the Representatives.
PAGE
SCHEDULE 1
UNDERWRITERS
Underwriter
Number of Firm
Securities to be Purchased
Prudential Securities Incorporated.....
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ABN AMRO Incorporated
Total
SCHEDULE 2
SUBSIDIARIES
Name
Jurisdiction of Incorporation
