1
Exhibit 1.1
Draft 10-6-97
2,000,000 Shares*
UBICS, Inc.
Common Stock
Underwriting Agreement
____________ ___, 1997
Xxxxxx/Xxxxxx Incorporated
Xxxxx & Xxxxxxxxxxxx, Inc.
As Representatives of the
Several Underwriters named
in Schedule II hereto
c/o Parker/Hunter Incorporated
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Dear Sirs:
UBICS, Inc., a Delaware corporation (the "Company"), and each of the
selling stockholders listed in Schedule I hereto (each, a "Selling Stockholder"
and collectively, the "Selling Stockholders") jointly and severally propose to
sell to you and the other underwriters named in Schedule II hereto
(collectively, the "Underwriters") for whom you are acting as Representatives
("you" or the "Representatives") an aggregate of 2,000,000 shares (the "Firm
Shares") of common stock, par value $.01 per share, of the Company (the "Common
Stock"). The number of Firm Shares which the Selling Stockholders have agreed
to sell to you is set forth opposite the name of such Selling Stockholder in
Schedule I hereto. The Firm Shares consist of 1,500,000 shares to be issued and
sold by the Company and 500,000 outstanding shares to be sold by the Selling
Stockholders. As indicated in Schedule I hereto, one of the Selling
Stockholders also proposes to sell to the Underwriters an aggregate of not more
than 300,000 additional shares of Common Stock (the "Option Shares") if
requested by the Underwriters as provided in Section 2 hereof. The Firm Shares
and the Option Shares are herein collectively called the "Shares." The Company
and the Selling Stockholders are hereinafter collectively called the "Sellers."
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company represents that
it prepared and filed on September 8, 1997 with the Securities and Exchange
Commission (the "Commission"), in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively called the "Act"), a registration statement
on Form S-1 (including the related preliminary prospectus) (File
--------
* Plus a 30-day option to purchase up to an additional 300,000 shares of
Common Stock solely to cover over-allotments.
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No. 333-35171) with respect to the Shares and such amendments thereof as may
have been required to the date of this Agreement. Copies of such registration
statement and any amendments, and all forms of the related prospectuses
contained therein, have been delivered to you. Such registration statement,
including the prospectus, Part II, any documents incorporated therein by
reference and all financial statements and exhibits included therein or filed
therewith, as amended at the time and on the date it becomes effective (the
"Effective Date"), is herein referred to as the "Registration Statement."
Promptly after execution and delivery of this Agreement, the
Company will prepare and file a prospectus in accordance with the provisions of
Rule 430A ("Rule 430A") of the Act and paragraph (b) of Rule 424 ("Rule
424(b)") of the Act. The information included in such prospectus that was
omitted from the Registration Statement at the time it became effective but
that is deemed to be part of the Registration Statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A
Information." Each prospectus used before the Registration Statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information that was used after such effectiveness and prior to the execution
and delivery of this Agreement is herein called a "preliminary prospectus." Any
registration statement filed pursuant to Rule 462(b) of the Act is herein
referred to as the "Rule 462(b) Registration Statement," and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The final prospectus in the form first furnished to the
Underwriters for use in connection with the offering of the Shares is herein
called the "Prospectus." For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("XXXXX").
The Company and the Underwriters agree that up to 50,000
shares of the Common Stock to be purchased by the Underwriters (the "Reserved
Shares") shall be reserved for sale by the Underwriters to certain employees
and directors of the Company and certain outside parties (the "Eligible
Persons"), as part of the distribution of the Common Stock by the Underwriters,
subject to the terms of this Agreement, the applicable rules, regulations and
interpretations of the National Association of Securities Dealers, Inc. (the
"NASD") and all other applicable laws, rules and regulations. To the extent
that such Reserved Shares are not orally confirmed for purchase by such
Eligible Persons by the end of the first business day after the date of this
Agreement, such Reserved Shares may be offered to the public as part of the
public offering contemplated hereby.
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, (i) the Company agrees to issue and sell to the
Underwriters 1,500,000 Firm Shares, (ii) each Selling Stockholder agrees to
sell to the Underwriters the number of Firm Shares set forth opposite such
Selling Stockholder's name in Schedule I hereto and (iii) each Underwriter
agrees, severally and not jointly, to purchase the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule II hereto, at a
purchase price per share of $________ (the "Purchase Price").
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On the basis of the representations and warranties contained in this
Agreement and subject to the terms and conditions hereof, the Selling
Stockholder identified in Schedule I hereto hereby grants to the several
Underwriters an option to purchase, severally and not jointly, all or part of
the Option Shares at the Purchase Price (the "Option"). The Option may be
exercised only to cover over-allotments in the sales of the Firm Shares by the
Underwriters and may be exercised in whole or in part from time to time and
within 30 days after the Effective Date. Any such exercise to purchase Option
Shares may be exercised only by written notice by the Representatives to the
Company and the Attorneys-in-Fact (defined herein) for the Selling Stockholders
setting forth the aggregate number of Option Shares to be purchased and the
date on which such Option Shares are to be delivered. If any Option Shares are
to be purchased, each Underwriter, severally and not jointly, agrees to
purchase the number of Option Shares (subject to such adjustments to eliminate
fractional shares as you may determine) which bears the same proportion to the
total number of Option Shares to be purchased as the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule II hereto.
3. TERMS OF PUBLIC OFFERING. The Sellers are advised by you that the
Underwriters propose (i) to make a public offering of the Shares on or as soon
after the Effective Date as in your judgment is advisable and (ii) initially to
offer the Firm Shares upon the terms set forth in the Prospectus.
4. DELIVERY AND PAYMENT. Delivery to you, as Representatives for the
respective accounts of the Underwriters, of the certificates and payment for
the Firm Shares shall be made and all other closing matters and transactions
with respect to the Firm Shares shall take place at the offices of Xxxxxxxx
Ingersoll Professional Corporation in Pittsburgh, Pennsylvania at 10:00 a.m.,
Pittsburgh time, on the fourth business day following the Effective Date, or at
any such other time as may be agreed upon by the Representatives, the Company
and the Selling Stockholders (the "Firm Closing Date"). The Firm Closing Date,
the location of the delivery of the certificates and payment for the Firm
Shares and the location of all other closing matters and transactions with
respect thereto may be varied by agreement between you and the Sellers.
Delivery to the Underwriters of the certificates and payment for any
Option Shares to be purchased by the Underwriters shall be made at the offices
of Xxxxxxxx Xxxxxxxxx Professional Corporation in Pittsburgh, Pennsylvania, at
10:00 a.m., Pittsburgh time, on such date (the "Option Closing Date"), which
may be the same as the Firm Closing Date but shall in no event be earlier than
the Firm Closing Date nor later than ten business days after the giving of the
notice referred in Section 2 hereof, as shall be specified in a written notice
from you to the Company and the Attorneys-in-Fact for the Selling Stockholders
of your determination to purchase a number, specified in said notice, of Option
Shares. All other closing matters and transactions with respect to the Option
Shares shall take place at 10:00 a.m., Pittsburgh time, at the offices of
Xxxxxxxx Ingersoll Professional Corporation in Pittsburgh, Pennsylvania on the
Option Closing Date. The Option Closing Date, the location of the delivery of
the certificates and payment for the Option Shares and the location of all
other closing matters and transactions with respect thereto may be varied by
agreement between you and the Sellers. The Firm Closing Date and the Option
Closing Date are individually referred to as a "Closing Date" and together as
the "Closing Dates."
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Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Firm Closing Date or the Option Closing Date,
as the case may be. Such certificates shall be made available to you for
inspection not later than 9:30 a.m., Pittsburgh time, on the business day next
preceding the Firm Closing Date or the Option Closing Date, as the case may be.
Certificates in definitive form evidencing the Firm Shares and Option Shares
shall be delivered to you on the Firm Closing Date or the Option Closing Date,
as the case may be, with any transfer taxes thereon duly paid by the respective
Sellers, for the respective accounts of the several Underwriters, against
payment of the purchase price therefor by certified or official bank check
payable in New York Clearing House or other next day funds to the order of the
Company and Xxxxxxx X. Xxxx, O'Xxxx Xxxxxxxx or Xxxx Xxxxxxxx as custodians for
each of the Selling Stockholders.
5. COVENANTS OF THE COMPANY. The Company covenants and agrees
with you and each Underwriter as follows:
(a) The Company will use its best efforts to cause the
Registration Statement to become effective at the
earliest possible time, and will comply with the
provisions of, and make all requisite filings with,
the Commission pursuant to Rule 430A, as applicable,
in a timely manner, and if filing of the prospectus
with the Commission is required under Rule 424(b),
the Company shall file the Prospectus, properly
completed, with the Commission pursuant to Rule
424(b) within the time period therein prescribed and
shall provide evidence satisfactory to you of such
timely filing, and prepare and file with the
Commission, promptly upon your reasonable request,
any amendments of the Registration Statement or
amendments of or supplements to the Prospectus
which, in your opinion, may be necessary or
advisable in connection with the distribution of the
Shares.
(b) The Company will, within the time during which a
Prospectus relating to the Shares is required to be
delivered under the Act, comply with all
requirements imposed upon it by the Act, as now or
hereafter amended, so far as is necessary to permit
the continuance of sales of or dealings in the
Shares as contemplated by the provisions hereof and
the Prospectus.
(c) The Company will comply with the requirements of
Rule 430A and will advise you promptly and, if
requested by you, confirm such advice in writing,
(i) when the Registration Statement has become
effective, any Rule 462(b) Registration Statement
has become effective, when the Prospectus has been
filed, when any post-effective amendment to the
Registration Statement has become effective, or any
amendment of or supplement to the Prospectus or any
amended Prospectus shall have been filed, (ii) of
the receipt of any comments from the Commission,
(iii) of any request by the Commission for
amendments to the Registration Statement
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or any amendment or supplement to the Prospectus or
for additional information, (iv) of the issuance by
the Commission or any state or other regulatory body
of any stop order or other order suspending the
effectiveness of the Registration Statement, any
462(b) Registration Statement or suspending or
preventing the use of any preliminary prospectus or
the Prospectus or suspending the qualification of the
Shares for offering or sale in any jurisdiction, or
the threatening or initiation of any proceeding for
any such purpose, (v) of receipt by the Company or
any representative of or attorney for the Company of
any other communications from the Commission relating
to the Company, the Registration Statement (including
any amendments thereto), any 462(b) Registration
Statement, any preliminary prospectus, Prospectus or
the transactions contemplated by this Agreement, and
(vi) of the happening of any event during the period
referred to in paragraph (e) below which makes any
statement of a material fact made in the Registration
Statement or the preliminary prospectus untrue or
which requires the making of any additions to or
changes in the Registration Statement or the
Prospectus in order to make the statements therein
not misleading. If at any time the Commission or any
state or other regulatory body shall issue any stop
order suspending the effectiveness of the
Registration Statement (including any post-effective
amendments thereto) or any 462(b) Registration
Statement, the Company will make every reasonable
effort to obtain the withdrawal or lifting of such
order at the earliest possible time.
(d) The Company will not file the Registration Statement
(including any amendment thereto), any 462(b)
Registration Statement or any amendment, supplement
or revision to either the prospectus included in the
Registration Statement at the time it became
effective or to the Prospectus which is not first
approved by you after reasonable notice thereof.
(e) The Company has delivered to each Underwriter,
without charge, as many copies of the preliminary
prospectus as such Underwriter reasonably requested,
and the Company hereby consents to the use of such
copies for purposes permitted by the Act. The
Company will promptly, after the Registration
Statement becomes effective and from time to time
thereafter for such period that a prospectus
relating to the Shares is required by law to be
delivered, furnish to you and to each Underwriter
and each dealer designated by you, without charge,
as many copies of the Prospectus (including any
amendment or supplement thereto) as you may from
time to time reasonably request. The Prospectus and
any amendments or supplements thereto furnished to
the Underwriters will be identical to the
electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
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(f) The Company will comply with the Act so as to
permit the completion of the distribution of the
Shares as contemplated by this Agreement and in the
Prospectus. If, during the period specified in
paragraph (e) above, any event shall occur as a
result of which the Prospectus as then amended or
supplemented includes any untrue statement of a
material fact or omits to state any material fact
required to be stated therein or necessary to make
the statements therein, in light of the
circumstances under which they were made, not
misleading or if it shall be necessary at any time
to amend the Registration Statement or amend or
supplement the Prospectus to comply with the Act and
any other law, the Company will forthwith prepare
and file with the Commission (at the expense of the
Company), subject to the provisions of paragraph (e)
above, an appropriate post-effective amendment to
the Registration Statement or amendment or
supplement to the Prospectus so that the statements
in the Registration Statement and the Prospectus as
so amended or supplemented, respectively, will
correct such statement or omission and shall use its
reasonable best efforts to have any such
post-effective amendment to the Registration
Statement declared effective as soon as possible,
and to furnish to you and to each Underwriter and
each dealer as you shall specify, such number of
copies thereof as you may reasonably request.
(g) The Company will promptly deliver to you three (3)
manually signed copies of the Registration
Statement, including exhibits and all amendments
thereto, and to those persons (including your
counsel) whom you identify to the Company, such
quantity of conformed copies of the Registration
Statement with exhibits, any 462(b) Registration
Statement, each preliminary prospectus, the
Prospectus and all amendments of and supplements to
such documents, if any, as you may reasonably
request. The copies of the Registration Statement
and each amendment thereto and the Prospectus and
any amendments or supplements thereto furnished to
the Underwriters will be identical to the
electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(h) The Company will cooperate with you and counsel for
the Underwriters in connection with the registration
or qualification of the Shares for offer and sale by
the several Underwriters and by dealers under the
securities or Blue Sky laws of such jurisdictions
(domestic or foreign), as you may reasonably
request, to continue such qualification in effect so
long as reasonably required for distribution of the
Shares and to file such consents to service of
process or other documents as may be necessary in
order to effect such registration or qualification;
provided, however, that the Company shall not be
required to register or qualify as a foreign
corporation or to take any action which would
subject it to the service of process in suits, other
than as to matters and transactions relating to the
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offer and sale of the Shares, in any jurisdiction
where it is not now so subject. In each
jurisdiction in which the Shares have been so
qualified, the Company will file such amendments and
reports as may be required by the laws of such
jurisdiction to continue such qualification in
effect for a period of not less than one year from
the later of the Effective Date of the Registration
Statement and the effective date of any Rule 462(b)
Registration Statement.
(i) The Company will timely file such reports pursuant
to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as are necessary in order to
make generally available to its security holders as
soon as practicable an earnings statement for the
purposes of, and to provide the benefits
contemplated by, the last paragraph of Section 11(a)
of the Act.
(j) The Company will, during the period of five years
after the date of this Agreement, furnish to you, in
such quantity as you may reasonably request for
distribution to the Underwriters, as soon as
available, a copy of (i) each report of the Company
mailed to security holders and (ii) all reports,
financial statements and proxy or information
statements filed by the Company with the Commission
or with any national securities exchange.
(k) The Company, during the period when the Prospectus
is required to be delivered under the Act or the
Exchange Act, will file all documents required to be
filed with the Commission pursuant to the Exchange
Act, and the rules and regulations of the Commission
thereunder.
(l) The Company will use its best efforts to do and
perform all things required or necessary to be done
and performed under this Agreement by the Company
prior to the Firm Closing Date or the Option Closing
Date, as the case may be, and to satisfy all
conditions precedent to the delivery of the Shares.
(m) The Company, for a period of 180 days after the
date of the Prospectus, will not, without the prior
written consent of Xxxxxx/Hunter Incorporated,
directly or indirectly, sell, offer, contract or
grant an option to sell, pledge, transfer or
otherwise dispose of or announce the offering of or
the filing of any registration statement under the
Act, in respect of any shares of Common Stock,
options or warrants to acquire shares of Common
Stock, or publicly announce the intention to do any
of the foregoing; other than (i) the Company's
issuance and sale of Shares in accordance with this
Agreement, and (ii) the grant of stock options under
the Company's 1997 Stock Option Plan as set forth in
the Prospectus (and the filing of a registration
statement on Form S-8 in connection therewith).
(n) The Company will apply the net proceeds of the sale
of the Shares sold by the Company as set forth under
the "Use of Proceeds" in the Prospectus.
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(o) The Company shall take such steps as shall be
necessary to ensure that the Company shall not
become an "investment company" or a company
"controlled" by an "investment company" within the
meaning of such terms under the Investment Company
Act of 1940, as amended (the "Investment Company
Act").
(p) Prior to the Firm Closing Date, and if the Option
Shares are purchased by the Underwriters, the Option
Closing Date, without your prior written consent,
the Company shall issue no press release or other
communication or hold any press conference with
respect to the offering of the Shares or the
financial condition, results of operations,
operations, business, business prospects,
properties, assets or liabilities of the Company.
(q) The Company will use its best efforts to cause the
Common Stock to be quoted on the Nasdaq National
Market.
(r) The Company hereby agrees that it will ensure that
the Reserved Shares will be restricted as required
by the NASD or the NASD rules from sale, transfer,
assignment, pledge or hypothecation for a period of
three months following the date of this Agreement.
The Underwriters will notify the Company as to which
persons will need to be so restricted. At the
request of the Underwriters, the Company will direct
the transfer agent to place a stop transfer
restriction upon such securities for such period of
time. Should the Company release, or seek to
release, from such restrictions any of the Reserved
Shares, the Company agrees to reimburse the
Underwriters for any reasonable expenses (including,
without limitation, legal expenses) they incur in
connection with such release.
(s) The Company shall comply with all provisions of all
undertakings contained in the Registration
Statement.
6. COVENANTS OF THE SELLING STOCKHOLDERS. Each of the Selling
Stockholders, severally and not jointly, covenants and agrees with you and each
Underwriter as follows:
(a) Such Selling Stockholder, for a period of 180 days
from the date of the Prospectus, will not, without
the prior written consent of Xxxxxx/Xxxxxx
Incorporated, directly or indirectly, sell, offer,
contract or grant an option to sell (including,
without limitation, any short sale), pledge,
transfer, establish an open put equivalent position
or otherwise dispose of any shares of Common Stock,
options or warrants to acquire shares of Common
Stock held by it or publicly announce the intention
to do any of the foregoing; other than such Selling
Stockholder's sale of Shares in accordance with this
Agreement.
(b) To take all reasonable actions in cooperation with
the Company and the Underwriters to cause the
Registration Statement to become effective at
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the earliest practicable time, and to do and perform
all things to be done and performed by it under this
Agreement prior to each Closing Date and to satisfy
all conditions precedent to the delivery of the
Shares pursuant to this Agreement.
(c) If, at any time during the period described in
Section 5(e) hereof, there is any change in the
information referred to in Section 7(e), 7(f), 7(g)
or 7(h), if applicable, hereof, to immediately
notify you and the Company of such change.
(d) Such Selling Stockholder will not take, directly or
indirectly, prior to the termination of the offering
of the Shares contemplated by this Agreement, any
action designed to stabilize or manipulate the price
of the Common Stock or that might reasonably be
expected to cause or result in stabilization or
manipulation of the price of the Common Stock.
(e) In order to document the Underwriters' compliance
with the reporting and withholding provision of the
Internal Revenue Code of 1986, as amended (the
"Code"), such Selling Stockholder shall deliver to
you, on or prior to the Firm Closing Date, a
properly completed and executed United States
Treasury Department Form W-8 (or other applicable
form or statement specified by Treasury Department
Regulations in lieu thereof).
7. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS.
Each of the Selling Stockholders with respect to itself and severally and not
jointly, represents and warrants to you and each Underwriter that:
(a) Such Selling Stockholder is the sole owner of the
number of Shares set forth opposite such Selling
Stockholder's name in Schedule I hereto; and, upon
delivery of and payment for the Shares to be sold by
the Selling Stockholder to each Underwriter in
accordance with this Agreement, title to such Shares
will be free and clear of all liens, security
interests, pledges, charges, encumbrances,
stockholders' agreements, voting trusts and any
claims whatsoever (other than any placed thereon by
the Underwriters).
(b) Such Selling Stockholder has been duly organized and
is validly existing as a corporation in good
standing under the laws of the British Virgin
Islands and has all requisite corporate power and
authority to enter into and perform its obligations
under this Agreement.
(c) This Agreement has been duly and validly
authorized, executed and delivered by such Selling
Stockholder (or the Attorneys-in-Fact on behalf of
such Selling Stockholder) and is a legal and binding
obligation of such Selling Stockholder, enforceable
against such Selling Stockholder in accordance with
its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws
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affecting creditors' rights and remedies generally,
and subject, as to enforceability, to general
principles of equity, including principles of
commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought
in a proceeding at law or in equity) and except
insofar as rights to indemnification and contribution
contained herein may be limited by federal or state
securities laws or related public policy.
(d) The execution and delivery by such Selling
Stockholder (or the Attorneys-in-Fact, on behalf of
such Selling Stockholder) of, and its performance of
its obligations under, this Agreement, the Custody
Agreement (defined herein) and the consummation of
the transactions contemplated hereby and thereby,
respectively (including the sale of the Shares
hereunder), will not (i) conflict with or result in
a breach of any of the terms and provisions of, or
constitute a default under (or an event that with
notice or lapse of time, or both, would constitute a
default under) or require approval or consent under,
or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of
such Selling Stockholder or any of its subsidiaries
pursuant to the terms of any agreement, contract,
indenture, mortgage, lease, license, arrangement or
understanding to which such Selling Stockholder or
any of its subsidiaries is a party, or to which any
of its respective properties is subject, that is
material to such Selling Stockholder or any of its
subsidiaries or any governmental franchise, license
or permit heretofore issued to such Selling
Stockholder or any of its subsidiaries that is
material to such Selling Stockholder or any of its
subsidiaries, or (ii) violate or conflict with any
provision of the articles or certificate of
incorporation, by-laws or similar governing
instruments of such Selling Stockholder or any of
its subsidiaries or any judgment, decree, order,
statute, rule or regulation of any court or any
public, governmental or regulatory agency or body
having jurisdiction over such Selling Stockholder or
any of its subsidiaries or any of their respective
properties or assets, except for those violations or
conflicts that, individually or in the aggregate,
would not have a Material Adverse Effect (defined
herein) on such Selling Stockholder or any of its
subsidiaries, taken as a whole.
(e) No filing with, or consent, approval,
authorization, order, registration, qualification,
license, permit or decree of, any court or any
public, governmental or regulatory agency or body
having jurisdiction over a Selling Stockholder or
any of its properties or assets is required for (i)
such Selling Stockholder's execution and delivery
of, and performance of its obligations under, this
Agreement, the Custody Agreement and the
consummation of the transactions contemplated hereby
and thereby, respectively (including the sale of the
Shares hereunder), except for the registration of
the Shares under the Act and the Exchange Act, the
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authorization of the Shares for quotation on the
Nasdaq National Market, such filings and
registration as may be required under state
securities or Blue Sky laws and the securities laws
of foreign jurisdictions in connection with the
purchase and distribution of the Shares by the
Underwriters and those already obtained.
(f) Such Selling Stockholder has placed in custody
under the Irrevocable Power of Attorney and Custody
Agreement with Xxxxxxx X. Xxxx, O'Xxxx Xxxxxxxx and
Babu Srinivas, or any of them, as Attorneys-in-Fact
(the "Custody Agreement"), for delivery under this
Agreement, certificates in negotiable form
representing the Shares to be sold by such Selling
Stockholder hereunder. Such Selling Stockholder
specifically agrees that the Shares represented by
the certificates so held in custody for such Selling
Stockholder are subject to the interest of the
Underwriters, that the arrangements made by such
Selling Stockholder for such custody are to that
extent irrevocable and that the obligations of such
Selling Stockholder hereunder shall not be
terminated by any act of such Selling Stockholder,
by operation of law, by dissolution or insolvency of
such Selling Stockholder or the occurrence of any
other event.
(g) To the extent that statements or omissions are made
in the Registration Statement, the Prospectus or any
amendment or supplement thereto in reliance upon and
in conformity with written information furnished to
the Company by such Selling Stockholder specifically
for use therein (the "Written Information"), on the
Effective Date, the date the Prospectus is first
filed with the Commission pursuant to Rule 424(b) of
the Act (if required), at all times subsequent
thereto and including the Firm Closing Date, when
any 462(b) Registration Statement becomes effective,
when any post-effective amendment to the
Registration Statement becomes effective or any
amendment or supplement to the Prospectus is filed
with the Commission, and during such longer period
as the Prospectus may be required to be delivered in
connection with sales of Shares by the Underwriters
or a dealer, the Registration Statement, any 462(b)
Registration Statement, and the Prospectus (as
amended or supplemented if the Company shall have
filed with the Commission an amendment or supplement
thereto) did not and will not contain an untrue
statement of a material fact or omit to state any
material fact required to be stated therein or
necessary in order to make the statements made
therein (in the case of the Prospectus, in light of
the circumstances under which it was made) not
misleading. Such Selling Stockholder has reviewed
the most recent preliminary prospectus, the
Prospectus (if the same shall be in existence) and
the Registration Statement, and the information
regarding such Selling Stockholder set forth therein
that is based upon the Written Information is
complete and accurate. From the Effective Date
through the Firm Closing Date, such Selling
Stockholder will advise the Representatives in
writing
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if and to the extent that such information
based upon the Written Information does not conform
with the requirements of the Act or contains any
untrue statement of a material fact or omits to
state any material fact required to be stated
therein or necessary in order to make the statements
made therein (in the case of the Prospectus, in
light of the circumstances under which it was made)
not misleading.
(h) There are no contracts, agreements or understandings
between such Selling Stockholder and any person
entitling such person to any fee, commission or
payment from such Selling Stockholder in connection
with the Shares to be sold by such Selling
Stockholder, other than the compensation due and
payable to the Underwriters as described in the
Registration Statement.
Any certificate signed by any officer of such Selling Stockholder
delivered to the Representatives or to counsel to the Underwriters shall be
deemed a representation and warranty by such Selling Stockholder to each
Underwriter as to the matters covered thereby.
8. REPRESENTATIONS AND WARRANTIES OF THE COMPANY, THE PRINCIPAL
STOCKHOLDER AND XXXXX XXXXXX. Each of the Company, United Breweries Information
Consultancy Services Ltd., a British Virgins Islands corporation (the
"Principal Stockholder"), and Xxxxx Xxxxxx, the beneficial owner of the
Principal Stockholder, jointly and severally, represent and warrant to you and
to each Underwriter that:
(a) Each of the Registration Statement and any Rule
462(b) Registration Statement has become effective
under the Act.
(i) At the respective times the Registration
Statement, any Rule 462(b) Registration
Statement and any post-effective amendments
thereto became effective and at the Firm
Closing Date (and, if any Option Shares are
purchased, at the Option Closing Date), the
Registration Statement, any Rule 462(b)
Registration Statement and any amendments
and supplements thereto complied and will
comply in all material respects with the
requirements of the Act and did not and
will not contain an untrue statement of a
material fact or omit to state a material
fact required to be stated therein or
necessary to make the statements therein
not misleading, and the Prospectus, any
preliminary prospectus and any amendment or
supplement thereto, at their respective
times of issuance and at the Firm Closing
Date, (and, if any Option Shares are
purchased, at the Option Closing Date),
complied and will comply in all material
respects with the requirements of the Act
and did not and will not contain an untrue
statement of a material fact or omit to
state a material fact required to be stated
therein or necessary to make the statements
therein not misleading. Neither the
Prospectus nor any
- 12 -
13
amendments or supplements thereto, at the
time the Prospectus or any such amendment or
supplement was issued and at the Firm
Closing Date, (and, if any Option Shares are
purchased, at the Option Closing Date),
included or will include an untrue statement
of a material fact or omitted or will 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.
(ii) No stop order preventing or suspending the
use of any preliminary prospectus has been
issued by the Commission; and no
proceedings for that purpose have been
instituted or are pending or, to the
knowledge of the Company, the Principal
Stockholder or Xxxxx Xxxxxx, are
contemplated by the Commission, and any
request on the part of the Commission for
additional information has been complied
with, and when any preliminary prospectus
was first filed with the Commission
(whether filed as part of the Registration
Statement or as an amendment thereof or any
Rule 462(b) Registration Statement or
pursuant to Rule 424(b)) and when any
amendment thereof or supplement thereto was
first filed with the Commission, such
preliminary prospectus and any amendments
thereof and supplements thereto conformed
in all material respects with the
applicable requirements of the Act and did
not contain an untrue statement of a
material fact or omit to state any material
fact required to be stated therein or
necessary to make the statements made
therein, in light of the circumstances
under which they were made, not misleading.
(iii) Each preliminary prospectus and the
Prospectus delivered to the Underwriters for
use in connection with this offering was
identical to the electronically transmitted
copies thereof filed with the Commission
pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(iv) No representation and warranty, however,
is made in this subsection 8(a) by the
Company, the Principal Stockholder and
Xxxxx Xxxxxx with respect to written
information contained in or omitted from
the Registration Statement, any Rule 462(b)
Registration Statement, the Prospectus, any
preliminary prospectus, or any amendment or
supplement thereto, in reliance upon and in
conformity with written information with
respect to the Underwriters and the plan of
distribution of the Shares furnished to the
Company on your behalf by the
Representatives expressly for use in
connection with the preparation thereof.
- 13 -
14
(b) The Shares have been approved for quotation upon
notice of issuance on the Nasdaq National Market.
(c) Each contract, agreement, instrument, lease, license
or other item required to be described in the
Registration Statement or the Prospectus or filed as
an exhibit to the Registration Statement has been so
described or filed, as the case may be.
(d) Xxxxxx Xxxxxxxx LLP, whose separate report appears
in the Registration Statement, are independent
public accountants with respect to the Company, as
required by and within the meaning of the Act. The
financial statements (including the related notes
thereto) of the Company (the "Company Financials")
included in the Registration Statement or any
preliminary prospectus, or to be included in the
Prospectus, fairly present the financial position,
results of operations and cash flows of the Company
and the other information purported to be shown
therein at the respective dates and for the
respective periods to which they apply. The Company
Financials have been prepared in accordance with
generally accepted accounting principles as in
effect in the United States ("US GAAP") consistently
applied throughout the periods involved, except as
disclosed therein, and are, in all material
respects, in accordance with the books and records
of the Company. Any "pro forma" and "pro forma as
adjusted" financial information included in the
Registration Statement or any preliminary
prospectus, or to be included in the Prospectus,
fairly present the information purported to be shown
therein at the respective dates thereof and for the
respective periods covered thereby and all
adjustments have been properly applied. The
selected financial data and the summary financial
information included in the Registration Statement
and Prospectus present fairly the information shown
therein and have been compiled on a basis consistent
with that of the audited financial statements
included in the Registration Statement. No other
financial statements are required by Form S-1 or
otherwise to be included in the Registration
Statement or the Prospectus other than those
included therein.
(e) Subsequent to the respective dates as of which
information is given in the Registration Statement,
except as set forth in the Registration Statement or
as may be set forth in the Prospectus, there has not
been any material adverse change in the business,
business prospects, properties, operations,
condition (financial or other) or results of
operations of the Company, whether or not arising
from transactions in the ordinary course of business
(a "Material Adverse Effect"), and since the date of
the latest balance sheet of the Company included in
the Registration Statement, and except as described
in the Prospectus, (i) the Company (A) has not
incurred or undertaken any liabilities or
obligations, direct or contingent, that are,
individually or in the aggregate, material to the
Company; or (B) entered
- 14 -
15
into any transaction not in the ordinary course of
business that is material to the Company; and (ii)
the Company has not declared or paid any dividend on
or made any distribution of or with respect to any
shares of its capital stock or redeemed, purchased or
otherwise acquired or agreed to redeem, purchase or
otherwise acquire any shares of its capital stock.
(f) The Company has all requisite corporate power and
authority to execute, deliver and perform its
obligations under this Agreement and to issue, sell
and deliver the Shares in accordance with the terms
and conditions thereof.
(g) This Agreement has been duly and validly
authorized, executed and delivered by the Company
and is a legal and binding obligation of the
Company, enforceable against the Company in
accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws
affecting rights and remedies of creditors and other
obligees generally, and subject, as to
enforceability, to general principles of equity,
including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in
equity), and except insofar as rights to
indemnification and contribution contained herein
may be limited by federal or state securities laws
or related public policy.
(h) The Company's execution and delivery of, and its
performance of its obligations under, this Agreement
and the consummation of the transactions
contemplated hereby and in the Registration
Statement (including the issuance and sale of the
Shares and the use of proceeds from the sale of
Shares as described in the Prospectus under the
caption "Use of Proceeds") will not (i) conflict
with or result in a breach of any of the terms and
provisions of, or constitute a default under (or an
event that with notice or lapse of time, or both,
would constitute a default under) or require
approval or consent under, or result in the creation
or imposition of any lien, charge or encumbrance
upon any property or assets of the Company pursuant
to the terms of any agreement, contract, indenture,
mortgage, lease, license, arrangement or
understanding to which the Company is a party, or to
which any of its properties is subject, that is
material to the Company (hereafter, collectively,
"Material Contracts"), or any governmental
franchise, license or permit heretofore issued to
the Company that is material to the Company
(hereafter, collectively, "Material Permits"), (ii)
violate or conflict with any provision of the
certificate of incorporation, by-laws or similar
governing instruments of the Company or (iii)
violate or conflict with any judgment, decree,
order, statute, rule or regulation of any court or
any public, governmental or regulatory agency or
body, domestic or foreign, having jurisdiction over
the Company or any of its properties or assets
except for those violations
- 15 -
16
or conflicts that, individually or in the aggregate,
would not have a Material Adverse Effect on the
Company.
(i) No filing with, or consent, approval,
authorization, order, registration, qualification,
license, permit or decree of, any court or any
public, governmental or regulatory agency or body
having jurisdiction over the Company or any of its
respective properties or assets is required for (i)
the Company's execution and delivery of, and its
performance of its obligations under, this
Agreement, and the consummation of the transactions
contemplated hereby (including the issuance and sale
of the Shares and the use of proceeds from the sale
of Shares as described in the Prospectus under the
caption "Use of Proceeds"), except the registration
of the Shares under the Act and the Exchange Act,
the approval of the Shares for quotation on the
Nasdaq National Market, such filings and
registrations as may be required under state
securities or Blue Sky laws and the securities laws
of foreign jurisdictions in connection with the
purchase and distribution of the Shares by the
Underwriters and those already obtained.
(j) All of the currently outstanding shares of capital
stock of the Company have been duly and validly
authorized and issued, are fully paid and
nonassessable and were not issued in violation of or
subject to any preemptive rights.
(k) The Shares have been duly authorized and, when
issued, delivered and sold in accordance with the
terms of this Agreement, will be validly issued,
fully paid and nonassessable, and will not have been
issued in violation of or be subject to any
preemptive rights, and the Underwriters will receive
valid title to those Shares to be purchased by them
from the Company, free and clear of all liens,
security interests, pledges, charges, encumbrances,
stockholders' agreements, voting trusts and any
claims whatsoever (other than any placed thereon by
the Underwriters).
(l) The Company has, as of the date hereof, and will
have, as of the Firm Closing Date and the Option
Closing Date, if any, an authorized and outstanding
capitalization as set forth in the Registration
Statement and as shall be set forth in the
Prospectus, both on an historical basis and as
adjusted basis to give effect to the offering of the
Shares. The Company's capital stock conforms to the
description thereof set forth in the Registration
Statement and as shall be set forth in the
Prospectus. The authorized, issued and outstanding
capital stock of the Company is as set forth in the
Prospectus in the column entitled "Actual" under the
caption "Capitalization" (except for subsequent
issuances, if any, pursuant to this Agreement,
pursuant to reservations, agreements or employee
benefit plans referred to in the Prospectus or
pursuant to the exercise of options referred to in
the Prospectus).
- 16 -
17
(m) There is no commitment, plan or arrangement to issue,
and no outstanding option, warrant or other right
calling for the issuance of, any shares of capital
stock (or similar interests) of the Company or any
security or other instrument that by its terms is
convertible into, exercisable for or exchangeable for
or evidencing the right to purchase capital stock (or
similar interests) of the Company, except as
described in the Registration Statement and as shall
be described in the Prospectus.
(n) The Company has been duly organized and is validly
existing as a corporation in good standing under the
laws of the State of Delaware and has all requisite
corporate power and authority to enter into and
perform its obligations under this Agreement.
(o) The Company is qualified and in good standing as a
foreign corporation in each jurisdiction in which
the character or location of its properties (owned,
leased or licensed) or the nature or conduct of its
business makes such qualification necessary except
for those failures to be so qualified or in good
standing that will not in the aggregate have a
Material Adverse Effect.
(p) The Company is not in any material respect in
violation or breach of, or in default under (nor has
an event occurred that with notice, lapse of time or
both, would constitute a default under), any
Material Contract, and each Material Contract is in
full force and effect, and is the legal, valid and
binding obligation of the Company, enforceable
against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium
and other similar laws affecting the rights and
remedies of creditors and other obligees generally
and subject, as to enforceability, to general
principles of equity, including principles of
commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought
in a proceeding at law or in equity).
(q) There is no action, suit, litigation, arbitration,
claim, governmental or other proceeding before or
brought by any court or governmental agency or body,
domestic or foreign, pending or, to the best
knowledge of the Company, the Principal Stockholder
or Xxxxx Xxxxxx, threatened or contemplated with
respect to the Company or any of their respective
operations, businesses, properties or assets, except
as described in the Registration Statement and as
shall be described in the Prospectus. The Company is
not or, to the best knowledge of the Company, the
Principal Stockholder or Xxxxx Xxxxxx, with the
giving of notice or lapse of time or both would be,
in violation of or noncompliance with the
requirements of any Material Permit or the
provisions of any law, rule, regulation, order,
judgment or decree, including, but without
limitation thereto, all
- 00 -
00
xxxxxxxxxx xxxxxxx, xxxxx and local laws and
regulations relating to (i) immigration, (ii) zoning,
land use, protection of the environment, human health
and safety or hazardous or toxic substances, wastes,
pollutants or contaminants and (ii) employee or
occupational safety, discrimination in hiring,
promotion or pay of employees, employee hours and
wages or employee benefits, except for such
violations or failures of compliance that,
individually or in the aggregate, would not have a
Material Adverse Effect.
(r) Except as described in the Registration Statement
and as shall be described in the Prospectus, the
Company has (i) good and marketable title to all
real and personal properties owned by it, free and
clear of all liens, security interests, pledges,
charges, claims, encumbrances, restrictions and
mortgages and (ii) valid, subsisting and enforceable
leases and subleases for all real and personal
properties leased by it, subject to such exceptions
as, individually or in the aggregate, do not have
and are not reasonably likely to have a Material
Adverse Effect, and the Company has not had any
notice of any material claim of any sort that has
been asserted by anyone adverse to the rights of the
Company under any of the leases or subleases
mentioned above, or affecting or questioning the
rights of the Company to the continued possession of
the leased or subleased premises under any such
lease or sublease. No real property owned, leased,
licensed or used by the Company lies in an area that
is, or to the best knowledge of the Company will be,
subject to zoning, use or building code restrictions
that would prohibit, and, to the best knowledge of
the Company, no state of facts relating to the
actions or inaction of another person or entity or
his, her or its ownership, leasing, licensing or use
of any real or personal property exists that would
prevent, the continued effective ownership, leasing,
licensing or use of such real property in the
business of the Company as presently conducted or as
the Prospectus indicates are contemplated to be
conducted, subject to such exceptions as,
individually or in the aggregate, do not have, and
are not reasonably likely to have, a Material
Adverse Effect.
(s) The Company directly owns or possesses all patents,
patent rights, licenses, inventions, copyrights,
trademarks, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures),
service marks and trade names or other intellectual
property and intangibles (collectively,
"Intellectual Property") necessary to conduct its
business as now conducted and proposed to be
conducted as disclosed in the Registration Statement
and as shall be disclosed in the Prospectus, except
where the failure to own or possess such
Intellectual Property, individually or in the
aggregate, would not have a Material Adverse Effect.
Other than as disclosed in the Registration
Statement and as shall be disclosed in the
- 18 -
19
Prospectus, neither the Company, the Principal
Stockholder nor Xxxxx Xxxxxx has received any
notice, or is otherwise aware of, infringement of or
conflict with the asserted rights of others with
respect to any Intellectual Property or any facts or
circumstances which would render any Intellectual
Property invalid or inadequate to protect the
interest of the Company therein, and which
infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or
invalidity or inadequacy, individually or in the
aggregate which, if adversely determined, would have
a Material Adverse Effect. To the best knowledge of
the Company, the Principal Stockholder and Xxxxx
Xxxxxx, there is no infringement by others of any
Intellectual Property of the Company that has had or
is reasonably likely to have a Material Adverse
Effect. The Company has registered and owns the
rights to the trademark and related logo for "UBICS"
in all jurisdictions, domestic or foreign, in which
such trademarks and logos are currently being or are
contemplated to be used and in which such
registration is currently permitted.
(t) The Company possesses such permits, licenses,
approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct
the business now operated by it; the Company is in
compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so
to comply would not, individually or in the
aggregate, have a Material Adverse Effect; all of
the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such
Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect; and the
Company has not received any notice of proceedings
relating to the revocation or modification of any
such Governmental Licenses which, individually or in
the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a
Material Adverse Effect.
(u) Except as described in the Registration Statement
and except as would not, individually or in the
aggregate, result in a Material Adverse Effect (A)
the Company is not in violation of any federal,
state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of
common law or any judicial or administrative
interpretation thereof, including any judicial or
administrative order, consent, decree or judgment,
relating to pollution or protection of human health,
the environment (including, without limitation,
ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations
relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or
petroleum products (collectively, "Hazardous
Materials") or
- 19 -
20
to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling
of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company has all permits,
authorizations and approvals required under any
applicable Environmental Laws and is in compliance
with their requirements, (C) there are no pending or
threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violations,
investigations or proceedings relating to any
Environmental Law against the Company, and (D) there
are no events or circumstances that might reasonably
be expected to form the basis of an order for
clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body
or agency, against or affecting the Company relating
to Hazardous Materials or any Environmental Laws.
(v) The Company and any entity which would be treated
as a single employer under Section 414(b), (c), (m)
or (o) of the Code, including the regulations and
published interpretations thereunder (the "Code")
(each such entity, an "ERISA Affiliate"), is in
compliance in all material respects with all
presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended,
including the regulations and published
interpretations thereunder ("ERISA") and, if
applicable, the Code; no "reportable event" (as
defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) for which the
Company or any ERISA Affiliate would have any
liability; neither the Company nor any ERISA
Affiliate has incurred or expects to incur liability
under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any such
"pension plan" or (ii) Sections 412 or 4971 of the
Code; and each "pension plan" for which the Company
or any ERISA Affiliate would have any liability that
is intended to be qualified under Section 401(a) of
the Code is so qualified in all material respects
and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such
qualification.
(w) Neither the Company nor, to the Company's, the
Principal Stockholder's or Xxxxx Xxxxxx'x best
knowledge, any director, officer or employee of the
Company or the Principal Stockholder has, directly
or indirectly, used any corporate funds for unlawful
contributions, gifts, entertainment or other
unlawful expenses relating to political activity;
made any unlawful payment to foreign or domestic
government officials or employees or to foreign or
domestic political parties or campaigns from
corporate funds; violated any provision of the
Foreign Corrupt Practices Act of 1977, as amended,
or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
- 20 -
21
(x) No person or entity has the right, by contract or
otherwise, to require registration under the Act of
shares of capital stock or other securities of the
Company.
(y) Neither the Company, the Principal Stockholder nor
any of their respective officers, directors or
affiliates (as defined in the Act) has taken or will
take, directly or indirectly, prior to the
termination of the offering of the Shares
contemplated by this Agreement, any action designed
to stabilize or manipulate the price of the Common
Stock or that might reasonably be expected to cause
or result in stabilization or manipulation of the
price of the Common Stock.
(z) The Company is not, and upon the issuance and sale
of the Shares as herein contemplated and the
application of the net proceeds therefrom as
described in the Prospectus will not be, an
"investment company" or a company "controlled" by an
"investment company" as such terms are defined in
the Investment Company Act.
(aa) Except as may be set forth in the Prospectus, the
Company has not incurred any liability for a fee,
commission or other compensation on account of the
employment of a broker or finder in connection with
the transactions contemplated by this Agreement.
(bb) The Company maintains systems of internal
accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in
accordance with management's general or specific
authorization; (ii) transactions are recorded as
necessary to permit preparation of financial
statements in conformity with US GAAP and to
maintain accountability for assets; (iii) the access
to the respective assets of the Company is permitted
only in accordance with management's general or
specific authorization; and (iv) the recorded
accountability for assets is compared with existing
assets at reasonable intervals, and appropriate
action is taken with respect to any differences.
(cc) Other than as disclosed in the Registration
Statement and as shall be disclosed in the
Prospectus, no labor dispute with the employees of
the Company exists or, to the best knowledge of the
Company, the Principal Stockholder or Xxxxx Xxxxxx,
is imminent, and the Company, the Principal
Stockholder and Xxxxx Xxxxxx are not aware of any
existing or imminent labor disturbance by the
employees of any of the Company's suppliers,
customers or contractors which, in either case, is
or is reasonably likely to have a Material Adverse
Effect.
(dd) (i) All United States federal income tax returns of
the Company required by law to be filed have been
filed, and all taxes shown by such returns or
otherwise assessed that are due and payable have
been paid, except
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22
assessments against which appeals have been or will
be promptly taken and (ii) the Company has filed all
other tax returns that are required to have been
filed by them pursuant to the applicable laws of all
other jurisdictions, and the Company has paid all
taxes due pursuant to said returns or pursuant to any
assessment received by the Company, except for such
taxes, if any, as are being contested in good faith
and as to which adequate reserves have been provided
in accordance with US GAAP. The charges, accruals
and reserves on the consolidated books of the Company
in respect of any tax liability for any years not
finally determined are adequate to meet any
assessments or reassessments for additional tax for
any years not finally determined.
(ee) The Company is insured by insurers of recognized
financial responsibility against such losses and
risks and in such amounts as are prudent and
customary in the businesses in which the Company is
engaged. The Company has no reason to believe that
it will not be able to renew its existing insurance
coverage from similar insurers as may be necessary
to continue its business, except as are disclosed in
the Registration Statement and as shall be disclosed
in the Prospectus.
(ff) No relationship, direct or indirect, exists between
or among the Company on the one hand and the
directors, officers, the Principal Stockholder,
customers or suppliers of the Company on the other
hand, which is required to be described in the
Registration Statement and Prospectus by the Act and
which is not so described.
(gg) There are no contracts or documents which are
required to be described in the Registration
Statement or the Prospectus or to be filed as
exhibits thereto which have not been so described
and filed as required.
Any certificate signed by any officer of the Company or by any officer
of the Principal Stockholder delivered to the Representatives or to counsel for
the Underwriters shall be deemed a representation and warranted by the Company
or the Principal Stockholder, as the case may be, to each Underwriter as to the
matters covered thereby.
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23
9. INDEMNIFICATION.
(a) Each of the Company, the Principal Stockholder and
Xxxxx Xxxxxx agrees, jointly and severally, 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, from and against any
and all losses, claims, damages, liabilities,
judgments or expenses (including the reimbursement
of any legal or other expenses incurred by them in
connection with investigating, preparing or
defending against any litigation, commenced or
threatened, or any claim whatsoever and any and all
amounts paid in settlement of any claim or
litigation), to which they or any of them may become
subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities,
claims, damages or expenses (or action in respect
thereof) (i) arise out of or based upon any untrue
statement or alleged untrue statement made by the
Company, the Principal Stockholder and Xxxxx Xxxxxx
in Section 8 hereof or (ii) arise out of or based
upon any untrue statement or alleged untrue
statement of a material fact contained in the
Registration Statement (or any amendment thereto),
including the Rule 430A Information or the
Prospectus or any preliminary prospectus, or in any
amendment or supplement thereto, any Rule 462(b)
Registration Statement, or caused by any omission or
alleged omission to state in such document such
material fact if required to be stated therein or
necessary to make the statements therein not
misleading or (iii) or in any Blue Sky application
or other document executed by the Company
specifically for that purpose or based upon any
written information furnished by the Company filed
in that state or other jurisdiction in order to
qualify any Shares under the securities laws
thereof, or arise out of or are based upon any
omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein not
misleading; provided, however, that such indemnity
shall not inure to the benefit of any Underwriter
(or any person controlling such Underwriter) to the
extent that but only to the extent that any such
losses, claims, damages, liabilities, judgments or
expenses arise out of or are based upon any such
untrue statement or alleged untrue statement or
omission or alleged omission made in reliance upon
and in conformity with information furnished in
writing to the Company by you or on your behalf with
respect to the Underwriters expressly for use
therein.
(b) Each of the Selling Stockholders agrees, severally
and not jointly, 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, from and
against any and all losses, claims, damages,
liabilities, judgments or expenses (including the
reimbursement of any legal or other expenses
incurred by them in
- 23 -
24
connection with investigating, preparing or defending
against any litigation, commenced or threatened, or
any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation) to which they
or any of them may become subject under the act or
otherwise, insofar as such losses, liabilities,
claims, damages or expenses (or actions in respect
thereof) (i) arise out of or based upon any untrue
statement or alleged untrue statement made by such
Selling Stockholder in Section 7 hereof or (ii) arise
out of or based only upon an untrue statement or
alleged untrue statement of a material fact contained
in the section entitled "Principal and Selling
Stockholders" (including the table and notes thereto)
or elsewhere in the Registration Statement (or any
amendment thereto), including Rule 430A Information
or the Prospectus or any preliminary prospectus, or
in any amendment or supplement thereto, any Rule
462(b) Registration Statement, or caused by any
omission or alleged omission to state in such
document or section such material fact if required to
be stated therein or necessary to make the statements
therein not misleading; provided, however, that such
indemnity shall not inure to the benefit of any
Underwriter to the extent that but only to the extent
that any such losses, claims, damages, liabilities,
judgments or expenses arise out of or are based upon
any such untrue statement or alleged untrue statement
or omission or alleged omission made in reliance upon
and in conformity with information furnished in
writing to the Company by you or on your behalf with
respect to the Underwriters expressly for use
therein.
(c) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its
directors, each of its officers who signed the
Registration Statement, the Selling Stockholders,
and any person, if any, controlling the Company and
the Selling Stockholders within the meaning of
Section 15 of the Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity
from the Company and the Selling Stockholders to
each Underwriter, but only with reference to
information furnished in writing by or on behalf of
such Underwriter expressly for use in the
Registration Statement (or any amendment thereto)
including Rule 430A Information, the Prospectus or
any preliminary prospectus, or in any amendment or
supplement thereto; provided, however, that in no
case shall the Underwriters be liable or responsible
for any amount in excess of the aggregate
underwriting discounts and commissions applicable to
the Shares purchased by such Underwriters hereunder.
This indemnity will be in addition to any liability
that the Underwriters may otherwise have to the
Company or any such director, officer or controlling
person, or the Selling Stockholders, including under
this Agreement. The Company acknowledges that the
statements set forth in the last paragraph of the
cover page, the legend concerning stabilization on
the inside front cover page of the Prospectus and
the statements set forth under the captions
"Underwriting" in the Prospectus constitute the only
information furnished
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25
in writing by or on behalf of any Underwriter
expressly for use in the Registration Statement (or
any amendment thereto), and any related preliminary
prospectus and the Prospectus, or in any amendment or
supplement thereto.
(d) Any party that proposes to assert the right to be
indemnified under this Section will, promptly after
receipt of notice of commencement of any action,
suit or proceeding against such party in respect of
which a claim is to be made against an indemnifying
party or parties under this Section, notify each
such indemnifying party of the commencement of such
action, suit or proceeding, enclosing a copy of all
papers served (but the omission so to notify such
indemnifying party of such action, suit or
proceeding shall not relieve it from any liability
that it may have to any indemnified party under this
Section and except to the extent that it has been
prejudiced in any material respect by such failure
or from any liability that it may have otherwise).
In case any action, suit or proceeding shall be
brought against any Underwriter or any person
controlling such Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange
Act, and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party
shall assume the defense thereof, including the
employment of counsel and payment of all fees and
expenses. In case any such action, suit or
proceeding shall be brought against any other
indemnified party and it shall notify the
indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate
in and, to the extent that it shall wish, jointly
with any other indemnifying party similarly
notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party
to such indemnified party of its election so to
assume the defense thereof and the approval by the
indemnified party of such counsel, the indemnifying
party shall not be liable to such indemnified party
for any legal or other expenses, except as provided
below and except for the reasonable costs of
investigation subsequently incurred by such
indemnified party in connection with the defense
thereon. Any indemnified party shall have the right
to employ separate counsel in any such action, but
the fees and expenses of such counsel shall be at
the expense of such indemnified party, unless (i)
the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying
parties, (ii) the indemnified party shall have
reasonably concluded that there may be a conflict of
interest between the indemnifying parties and the
indemnified party in the conduct of the defense of
such action (in which case the indemnifying parties
shall not have the right to direct the defense of
such action on behalf of the indemnified party), or
(iii) the indemnifying parties shall not have
employed counsel to assume the defense of such
action within a reasonable time after notice of the
commencement thereof, in each of
- 00 -
00
xxxxxxx (x), (xx) and (iii), the fees and expenses of
counsel shall be borne by the indemnifying parties;
provided, however, that the indemnifying parties
shall not be liable for more than one firm of counsel
on behalf of the indemnified parties. An
indemnifying party shall not be liable for any
settlement of any action, suit, proceeding or claim
effected without its written consent (which consent
shall not be unreasonably withheld).
(e) In connection with the offer and sale of the
Reserved Shares, the Company agrees, promptly upon a
request in writing, to indemnify and hold harmless
the Underwriters from and against any and all
losses, liabilities, claims, damages and expenses
incurred by them as a result of the failure of the
Eligible Persons to pay for and accept delivery of
Reserved Shares which, by the end of the first
business day following the date of this Agreement,
were subject to a properly confirmed agreement to
purchase.
(f) In order to provide for contribution in
circumstances in which the indemnification provided
for in this Section 9 is for any reason held to be
unavailable or is insufficient to hold harmless a
party indemnified thereunder, the indemnifying party
shall contribute to the aggregate losses, claims,
damages, liabilities and expenses of the nature
contemplated by such indemnification provisions
(including any investigation, legal and other
expenses incurred in connection with, and any amount
paid in settlement of, any action, suit or
proceeding or any claims, damages, liabilities and
expenses suffered by the Company and the Selling
Stockholders, any contribution received by the
Company and the Selling Stockholders from persons,
other than one or more of the Underwriters, who may
also be liable for contribution, including persons
who control the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange
Act, directors of the Company and officers of the
Company who signed the Registration Statement) to
which the indemnified party may be subject, in such
proportions as are appropriate to reflect the
relative benefits received by the Company, the
Selling Stockholders and Xxxxx Xxxxxx, on the one
hand, and the Underwriters, on the other hand, from
the offering of the Shares or, if such allocation is
not permitted by applicable law or indemnification
is not available as a result of the indemnifying
party not having received notice as provided in this
Section 9, in such proportion as is appropriate to
reflect not only the relative benefits referred to
above but also the relative fault of the Company,
the Selling Stockholders and Xxxxx Xxxxxx, on the
one hand, and the Underwriters, on the other hand,
in connection with the statements or omissions that
resulted in such losses, claims, damages,
liabilities or expenses, as well as any other
relevant equitable considerations. The relative
benefits received by the Company, the Selling
Stockholders and Xxxxx Xxxxxx, on the one hand, and
the Underwriters, on the other hand, shall be deemed
to be in the same proportion as (x) the total
proceeds from the offering (net of
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27
underwriting discounts and commissions but before
deducting expenses) received by the Company and the
Selling Stockholders (the "Net Proceeds") and (y) the
underwriting discounts and commissions received by
the Underwriters, respectively bear to the total
proceeds to the public of the Shares, in each case as
set forth in the table on the cover page of the
Prospectus. The relative fault of the Company, the
Selling Stockholders and Xxxxx Xxxxxx, on the one
hand, and the Underwriters, on the other hand, shall
be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to
state a material fact relates to information supplied
by the Company, the Selling Stockholders or Xxxxx
Xxxxxx, as such, on the one hand, or the
Underwriters, on the other hand, and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or
omission. The Company, the Selling Stockholders,
Xxxxx Xxxxxx and the Underwriters agree that it would
not be just and equitable if contribution pursuant to
this Subsection 9(f) were determined by pro rata
allocation or by any other method of allocation that
does not take account of the equitable considerations
referred to above. The Company's, the Selling
Stockholders' and Xxxxx Xxxxxx'x obligations in this
Subsection 9(f) to contribute are joint and several,
and the Underwriters' obligations under this
Subsection 9(f) to contribute are several and not
joint. Notwithstanding the provisions of this
Subsection 9(f), (i) in no case shall any Underwriter
be required to contribute any amount in excess of the
amount by which the aggregate public offering price
of the Shares underwritten by it and distributed to
the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement
or such omission or alleged omission and (ii) no
person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For
purposes of this Subsection 9(f), each person, if
any, who controls any 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 person, if
any, who controls the Company or the Selling
Stockholders within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, the directors
of the Company and each officer of the Company who
shall have signed the Registration Statement shall
have the same rights to contribution as the Company,
subject in each case to clauses (i) and (ii) of this
Subsection 9(f). Any party entitled to contribution
shall, promptly after receipt of notice of
commencement of any action, suit or proceeding
against such party in respect of which a claim for
contribution may be made against another party or
parties under this Subsection 9(f), notify such party
or parties from whom contribution may be sought, but
the omission to so notify such party or parties shall
not relieve the party or
- 27 -
28
parties from whom contribution may be sought from
any obligation it or they may have under this
Subsection 9(f) or otherwise. No party shall be
liable for contribution with respect to any action
or claim settled without its written consent;
provided, however, that such written consent was not
unreasonably withheld. For purposes of this
Section, the Net Proceeds deemed to be received by
the Company shall be deemed to be also for the
benefit of the Selling Stockholders and Xxxxx Xxxxxx
and information supplied by the Company shall also
be deemed to have been supplied by the Selling
Stockholders and Xxxxx Xxxxxx.
(g) The obligations of the Company, the Selling
Stockholders and Xxxxx Xxxxxx under this Section 9
shall be in addition to any liability which the
Company, the Selling Stockholders and Xxxxx Xxxxxx
may otherwise have, and shall extend, upon the same
terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange
Act; and the obligations of the Underwriters under
this Section 9 shall be in addition to any liability
that the respective Underwriters may otherwise have,
and shall extend, upon the same terms and
conditions, to each director of the Company
(including any person who, with his consent, is
named in the Registration Statement as about to
become a director of the Company), to each officer
of the Company who has signed the Registration
Statement and to each person, if any, who controls
the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act.
10. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Shares are subject to the
satisfaction of each of the following conditions:
(a) All of the representations and warranties of the
Company and the Selling Stockholders contained in
this Agreement shall be true and correct in all
material respects on each Closing Date with the same
force and effect as if made on and as of such
Closing Date, and the Company and the Selling
Stockholders shall have performed all covenants and
agreements and satisfied all the conditions in this
Agreement required to be performed or satisfied by
them at or prior to such Closing Date.
(b) The Registration Statement, including any Rule
462(b) Registration Statement, has become effective
under the Act not later than 5:00 p.m., Pittsburgh
time, on the date of this Agreement or at such later
date and time as you may approve in writing, and all
other post-effective amendments thereto shall have
become effective and, if applicable, all filings
required by Rule 424(b) and Rule 430A shall have
been timely made and no stop order suspending the
effectiveness of the Registration Statement or the
use of the Prospectus shall have been issued and no
- 28 -
29
proceedings for that purpose shall have been
initiated or threatened or shall be pending or
contemplated by the Commission; and any request of
the Commission for additional information (to be
included in the Registration Statement or the
Prospectus or otherwise) shall have been disclosed
to you and complied with to your satisfaction.
(c) (i) Since the date of the latest balance sheet
included in the Registration Statement, there shall
not have been any material adverse change in the
condition, financial or otherwise, or in the
earnings, affairs or business prospects, whether or
not arising in the ordinary course of business, of
the Company, from that set forth in the Registration
Statement; (ii) since the date of the latest balance
sheet included in the Registration Statement, except
as contemplated in the Registration Statement, there
shall not have been any change in the capital stock
or material increase in the debt of the Company from
that set forth in the Registration Statement; (iii)
since the date of the latest balance sheet included
in the Registration Statement, the Company shall not
have become a party to or subject to any litigation
which is material to the Company; and (iv) the
Company shall have no liability or obligation,
direct or contingent, which is material to the
Company, other than those reflected in or
contemplated by the Registration Statement and the
Prospectus or incurred in the ordinary course of
business.
(d) The representations and warranties of the Company
contained in this Agreement shall be true and
correct on each Closing Date with the same force and
effect as if made on and as of such Closing Date,
and you shall have received a certificate of each of
the Company and Xxxxx Xxxxxx dated such Closing Date
and addressed to you, and, in the case of the
certificate of the Company, executed by the Chairman
and the Chief Financial Officer in their capacities
as executive officers of the Company, and, in each
case, confirming the matters set forth in paragraphs
(a), (b) and (c) of this Section 10 and confirming
that the signers have carefully examined the
Registration Statement (including any amendment
thereto), any 462(b) Registration Statement, and the
Prospectus, and any amendments or supplements
thereto, and they do not include any untrue
statement of material fact or omit to state any
material fact required to be stated therein or
necessary to make the statements therein not
misleading.
(e) The representations and warranties of the Selling
Stockholders contained in this Agreement shall be
true and correct on each Closing Date with the same
force and effect as if made on and as of such
Closing Date, and you shall have received a
certificate of each of the Selling Stockholders
dated such Closing Date and addressed to you, signed
by a person authorized to legally bind such Selling
Stockholder in his capacity as such, confirming
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30
the matters set forth in paragraph (a) with respect
to such Selling Stockholder.
(f) You shall have received an opinion on the Firm
Closing Date, addressed to the Underwriters
(satisfactory to you and counsel for the
Underwriters) and dated such Closing Date, of Xxxxx
& Xxxxxxx, P.C., counsel to the Company, to the
effect that:
(i) The Company is a corporation duly
organized, validly existing and in good
standing under the laws of the State of
Delaware and has the corporate power and
authority to own, lease and operate its
properties and to conduct its business as
described in the Prospectus and to enter
into and perform its obligations under this
Agreement; the Company does not control,
directly or indirectly, any corporation,
partnership, joint venture, association or
other business association; and the Company
is duly qualified and in good standing as a
foreign corporation authorized to do
business in each jurisdiction in which the
nature of its business or its ownership or
leasing of property requires such
qualification, except for failures to be so
qualified which would not, individually or
in the aggregate, have a Material Adverse
Effect on the Company.
(ii) The Company has all requisite corporate
power and authority to execute, deliver and
perform its obligations under this Agreement
and to issue, sell and deliver the Shares in
accordance with the terms and conditions
herein.
(iii) The Company has all requisite power and
authority and all necessary material
authorizations, approvals, consents,
orders, licenses, certificates and permits
to own, lease and license its respective
properties and conduct its respective
businesses as now being conducted and as
described in the Registration Statement and
the Prospectus, no such authorization,
approval, consent, order, license,
certificate or permit contains a materially
burdensome restriction other than as
disclosed in the Registration Statement and
the Prospectus; and the Company has all
requisite power and authority and all
necessary authorizations, approvals,
consents, orders, licenses, certificates
and permits to enter into, deliver and
perform this Agreement and to issue and
sell the Shares to be sold by it hereunder,
other than those required under foreign and
state Blue Sky or securities laws;
(iv) This Agreement has been duly authorized,
executed and delivered by the Company and
is a valid and binding agreement and
obligation of the Company and is
enforceable against the Company
- 30 -
31
in accordance with its terms, subject to
applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization,
moratorium and other similar laws affecting
rights and remedies of creditors and other
obligees generally, and subject, as to
enforceability, to general principles of
equity, including principles of commercial
reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought
in a proceeding at law or in equity).
(v) No holder of any security of the Company or
of any right to receive any security of the
Company has the right to have any
securities owned by such holder registered
pursuant to the Registration Statement or
otherwise registered by the Company under
the Act.
(vi) The authorized, issued and outstanding
capital stock of the Company is as set
forth in the Prospectus (except for
subsequent issuances, if any, pursuant to
this Agreement or pursuant to reservations,
agreements or employee benefit plans
referred to in the Prospectus or pursuant
to the exercise of options referred to in
the Prospectus) and the shares of issued
and outstanding capital stock of the
Company have been duly authorized and
validly issued, fully paid and
nonassessable and none of the outstanding
shares of capital stock of the Company was
issued in violation of or subject to any
preemptive or other similar rights.
(vii) The Shares have been duly authorized and,
when issued, delivered and sold in
accordance with the terms of this Agreement
will be validly issued, fully paid and
nonassessable and will not have been issued
in violation of or be subject to any
preemptive rights; and upon delivery of the
Shares and payment therefor in the manner
described in this Agreement, each of the
Underwriters will receive title to such
Shares, free and clear of all liens,
pledges, charges, claims, security
interests, restrictions on transfer,
agreements or other defects of title
whatsoever other than those resulting from
any action taken by the Underwriters, if
such Underwriters acquire the Shares in
good faith and without notice of adverse
claim.
(viii) There is no outstanding option, warrant or
other right calling for the issuance of,
and no commitment, plan or arrangement to
issue, any share of capital stock of the
Company or any security convertible into or
exercisable for or exchangeable for capital
stock of the Company other than as referred
to herein or described in the Registration
Statement and the Prospectus.
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32
(ix) The Common Stock conforms in all material
respects to the description thereof
contained in the Registration Statement and
the Prospectus under the caption
"Description of Capital Stock;" all of the
shares of capital stock of the Company
outstanding prior to the Effective Date have
been legended to restrict the
transferability thereof.
(x) The Registration Statement, including any
462(b) Registration Statement, and all
post-effective amendments have been
declared effective under the Act, all
filings required by Rule 424(b) and Rule
430A have been timely made, and no stop
order suspending the use of any preliminary
prospectus or the Prospectus or the
effectiveness of the Registration Statement
or any Rule 462(b) Registration Statement
has been issued, and no proceedings for
that purpose have been taken or are pending
before or are threatened or contemplated by
the Commission.
(xi) The statements under the captions
"Management," "Business--Litigation" and
"Description of Capital Stock" in the
Registration Statement and the Prospectus,
and under Items 14 and 15 of Part II of the
Registration Statement, insofar as such
statements constitute summaries of legal
matters, documents or proceedings referred
to therein, the Company's charter and bylaws
or legal conclusions, has been reviewed by
us and is correct in all material respects.
(xii) The Company owns or possesses adequate and
enforceable rights to use, all Intellectual
Property necessary in all material respects
for the conduct of its business as
described in the Registration Statement and
the Prospectus and there is no material
claim pending against the Company with
respect to such Intellectual Property, and
the Company has not received notice that
use of such Intellectual Property infringes
upon or conflicts with the rights of any
third party which might materially
adversely affect the properties, business,
financial condition or results of operation
of the Company.
(xiii) The form of certificate used to evidence
the Common Stock complies in all material
respects with all applicable statutory
requirements and with any applicable
requirements of the charter and by-laws of
the Company.
(xiv) There is not pending or, to our best
knowledge after due inquiry, threatened any
action, suit, proceeding, inquiry or
investigation, to which the Company is a
party, or to which the property of the
Company is subject, before or brought by
any court or
- 32 -
33
governmental agency or body, domestic or
foreign, which might reasonably be expected
to result in a Material Adverse Effect, or
which might reasonably be expected to
materially adversely affect the consummation
of the transactions contemplated in this
Agreement (including, the issuance and sale
of the Shares and the use of proceeds from
the sale of Shares as described in the
Prospectus under the caption "Use of
Proceeds") or the performance by the Company
of its obligations thereunder.
(xv) There is not pending or, to our best
knowledge after due inquiry, threatened any
action, suit, proceeding, inquiry or
investigation, to which the Company is a
party, or to which the property of the
Company is subject, before or brought by
any court or any governmental agency or
other proceeding, domestic or foreign,
which is required to be described in the
Registration Statement or the Prospectus
and is not so described, or of any contract
or other document which is required to be
described in the Registration Statement or
the Prospectus or is required to be filed
as an exhibit to the Registration Statement
which is not described or filed as
required.
(xvi) There are no statutes or regulations that
are required to be described in the
Prospectus that are not described as
required.
(xvii) All descriptions in the Registration
Statement of contracts and other documents
to which the Company is a party are
accurate in all material respects; there
are no franchises, contracts, indentures,
mortgages, loan agreements, notes, leases
or other instruments required to be
described or referred to in the
Registration Statement or to be filed as
exhibits thereto other than those described
or referred to therein or filed as exhibits
thereto, and the descriptions thereof or
references thereto are correct in all
material respects.
(xviii) The Company is not in violation of its
charter or by-laws and no default by the
Company exists in the due performance or
observance of any material obligation,
agreement, covenant or condition contained
in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or
instrument that is described or referred to
in the Registration Statement or the
Prospectus or filed as an exhibit to the
Registration Statement.
(xix) The Company's execution and delivery of,
and its performance of its obligations
under, this Agreement and the consummation
of the transactions contemplated hereby and
in the Registration Statement (including
the issuance and sale of the Shares and the
use of the
- 33 -
34
proceeds from the sale of the Shares as
described in the Prospectus under the
caption "Use of Proceeds") will not (i)
conflict with or result in a breach of any
of the terms and provisions of, or
constitute a default under (or an event that
with notice or lapse of time, or both, would
constitute a default under) or require
approval or consent under, or result in the
creation or imposition of any lien, charge
or encumbrance upon any property or assets
of the Company pursuant to the terms of any
Material Contract or any Material Permit,
(ii) violate or conflict with any provision
of the certificate of incorporation, by-laws
or similar governing instruments of the
Company or (iii) violate or conflict with
any judgment, decree, order, statute, rule
or regulation of any court or any public,
governmental or regulatory agency or body,
domestic or foreign, having jurisdiction
over the Company or any of its properties or
assets, except for those violations or
conflicts that, individually or in the
aggregate, would not have a Material Adverse
Effect on the Company.
(xx) Except for the order of the Commission
declaring the Registration Statement
effective and permits and similar
authorizations required under foreign or
state securities or Blue Sky laws, no filing
with, or authorization, approval, consent,
license, order, registration, qualification
or decree of, any court or governmental
authority or agency, domestic or foreign, is
necessary or required in connection with the
due authorization, execution and delivery of
this Agreement or for the offering, issuance
or sale of the Shares.
(xxi) All sales by the Company of its capital
stock since the date of incorporation
(except for sales by the Company of Shares
pursuant to this Agreement) were duly
registered or the subject of an available
exemption from the registration requirements
of applicable securities laws (except in all
such cases for any application of the
principles or doctrine of integration of
offerings or issuances, as to which such
counsel need express no opinion).
(xxii) The Registration Statement (including any
amendment thereto), any Rule 462(b)
Registration Statement and the Rule 430A
Information, all preliminary prospectuses
and the Prospectus, and any supplement or
amendment thereto (including any document
incorporated by reference into the
Prospectus), comply as to form in all
material respects with the Act and Form S-1
promulgated under the Act (except the
financial statements, selected financial
data and financial schedules, if any, as to
which such counsel need express no
opinion), including the published rules and
regulations
- 34 -
35
of the Commission thereunder; the conditions
for use of Form S-1, set forth in the
General Instructions thereto, have been
satisfied.
(xxiii) The Company is not an "investment company"
or an entity "controlled" by an investment
company," as such terms are defined in the
1940 Act.
In addition to the matters set forth above, such
opinion shall also include a statement to the effect
that although such counsel has not independently
verified the accuracy or completeness of the
information in the Registration Statement and
Prospectus, they have participated in conferences
with representatives of the Company and its
independent accountants and investment bankers and
their counsel at which the contents of the
Registration Statement and the Prospectus were
discussed at length and nothing has come to their
attention that causes them to believe that (except
for financial statements and schedules and other
financial or statistical data, as to which such
counsel need express no opinion) the Registration
Statement and the Prospectus included therein at the
time the Registration Statement became effective,
contained any untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as
amended or supplemented, if applicable (except for
financial statements and schedules and other
financial or statistical data, as to which such
counsel need express no opinion) contained any
untrue statement of a material fact or omitted to
state a material fact necessary in order to make the
statements therein, in the light of the
circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may rely as
to matters of fact (but not as to legal
conclusions), on certificates of the executive
officers of the Company and of governmental
officials, provided that their opinion states that
they are so doing and that the Underwriters are
justified in relying on such certificates and copies
of such certificates of executive officers of the
Company are attached to the opinion.
Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise
subject to, any treatise, written policy or other
document relating to legal opinions, including,
without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
(g) You will have received an opinion on each Closing
Date, addressed to the Underwriters (satisfactory to
you and counsel for the Underwriters) and dated such
Closing Date, of Xxxxx & Xxxxxxx, P.C., special
counsel to each Selling Stockholder, to the effect
that:
- 35 -
36
(i) Each Selling Stockholder is a corporation
duly organized, validly existing and in good
standing under the laws of the British
Virgin Islands.
(ii) Each Selling Stockholder has all requisite
corporate power and authority to execute,
deliver and perform its obligations under
this Agreement and to sell and deliver the
Shares in accordance with the terms and
conditions herein.
(iii) Each Selling Stockholder has good and clear
title to the certificates for the Shares to
be sold by it and upon delivery thereof,
pursuant hereto and payment therefor, good
and clear title will pass to the
Underwriters, severally, free of all
restrictions on transfer, liens,
encumbrances, security interests and claims
whatsoever, assuming the Underwriters
purchase without notice of any adverse
claim to the Shares.
(iv) This Agreement and the Custody Agreement
have been duly authorized, executed and
delivered by each Selling Stockholder (or
the Attorneys-in-Fact, on behalf of the
Selling Stockholders) and are valid and
binding instruments, agreements and
obligations of each Selling Stockholder and
are enforceable against each Selling
Stockholder in accordance with their terms,
subject to applicable bankruptcy,
insolvency, fraudulent conveyance,
reorganization, moratorium and other
similar laws affecting rights and remedies
of creditors and other obligees generally,
and subject, as to enforceability, to
general principles of equity, including
principles of commercial reasonableness,
good faith and fair dealing (regardless of
whether enforcement is sought in a
proceeding at law or in equity).
(v) Except for permits and similar
authorizations required under the securities
or Blue Sky laws of certain jurisdictions,
no filing with, or authorization, approval,
consent, license, order, registration,
qualification or decree of, any court or
governmental authority or agency, domestic
or foreign, is necessary or required in
connection with the due authorization,
execution and delivery of this Agreement or
for the offering, issuance or sale of the
Shares.
(vi) The execution and delivery by each Selling
Stockholder (or the Attorneys-in-Fact, on
behalf of the Selling Stockholders), and
its performance of its obligations under
this Agreement, the Custody Agreement and
the consummation of the transactions
contemplated hereby and thereby,
respectively (including the sale of the
Shares by such Selling Stockholder), will
not (i) conflict with or result in a
- 36 -
37
breach of any of the terms and provisions
of, or constitute a default under (or an
event that with notice or lapse of time, or
both, would constitute a default under) or
require approval or consent under, or result
in the creation or imposition of any lien,
charge or encumbrance upon any property or
assets of such Selling Stockholder or any of
its subsidiaries pursuant to the terms of
any agreement, contract, indenture,
mortgage, lease, license, arrangement or
understanding to which such Selling
Stockholder or any of its subsidiaries is a
party, or to which any of their properties
is subject, that is material to such Selling
Stockholder or any of its subsidiaries or
any governmental franchise, license or
permit heretofore issued to such Selling
Stockholder or any of its subsidiaries that
is material to such Selling Stockholder, or
(ii) violate or conflict with any provision
of the articles or certificate of
incorporation, by-laws or similar governing
instruments of such Selling Stockholder or
any of its subsidiaries or any judgment,
decree, order, statute, rule or regulation
of any court or any public, governmental or
regulatory agency or body having
jurisdiction over such Selling Stockholder
or any of its subsidiaries or any of their
respective properties or assets except for
those violations or conflicts that,
individually or in the aggregate, would not
have a Material Adverse Effect on such
Selling Stockholder or any of its
subsidiaries, taken as a whole.
In rendering such opinion, such counsel may rely (A)
as to matters involving the application of the laws
of the British Virgin Islands, upon the opinion of
___________, special counsel to the Company (which
opinion shall be dated and furnished to the
Representatives at the Firm Closing Date or the
Option Closing Date, as the case may be, shall be
satisfactory in form and substance to counsel for
the Underwriters and shall expressly state that the
Underwriters may rely on such opinion as if it were
addressed to them), provided that Xxxxx & Xxxxxxx,
P.C. shall state in their opinion that they believe
that they and the Underwriters are justified in
relying upon such opinion, and (B), as to matters of
fact (but not as to legal conclusions), to the
extent they deem proper, on certificates of
responsible officers of each Selling Stockholder and
public officials, provided that their opinion states
that they are doing so and that the Underwriters are
justified in relying on such certificates and copies
of certificates of officers of such Selling
Stockholder are attached to the opinion. Such
opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to,
any treatise, written policy or other document
relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA
Section of Business Law (1991).
- 37 -
38
(h) You shall have received on each Closing Date, an
opinion (satisfactory to you and counsel for the
Underwriters), dated such Closing Date, of
______________________, special immigration counsel
for the Company, to the effect that: the statements
under the captions "Risk Factors-Recruitment and
Retention of IT Professionals," "-U.S. Regulation
of Immigration," and "Business-Human Resources" in
the Prospectus insofar as such statements constitute
a summary of legal matters, documents or proceedings
referred to therein, fairly present the information
called for with respect to such legal matters,
documents and proceedings and that, except as
disclosed therein, nothing has come to such
counsel's attention that would cause such counsel to
believe that the Company is not conducting its
business in compliance with such summary as so
stated, except for such violations that would not,
individually or in the aggregate, have a Material
Adverse Effect on the Company.
In rendering such opinion, such counsel may rely as
to matters of fact (but not as to legal
conclusions), on certificates of the executive
officers of the Company and of governmental
officials, provided that their opinion states that
they are so doing and that the Underwriters are
justified in relying on such certificates and copies
of such certificates of executive officers of the
Company are to attached to the opinion.
(i) You shall have received on each Closing Date an
opinion, dated the date of such Closing Date, from
Xxxxxxxx Xxxxxxxxx Professional Corporation, counsel
for the Underwriters, as to the matters referred to
in clauses (iv) (but only as to authorization,
execution and delivery of this Agreement by the
Company), (vi) and (vii) (but only as to the shares
to be issued and sold by the Company), (x), (xx),
(xxii) and to the effect of the first unnumbered
paragraph of the foregoing paragraph (f), and to the
effect that the statements under the caption
"Underwriting" in the Prospectus, insofar as such
statements constitute a summary of the documents
referred to therein, fairly present the information
called for with respect to such documents. In
rendering such opinion with respect to the matters
covered by clause (xxii), such counsel may state
that their opinion and belief are based upon the
procedures specified in such opinion.
In addition to the matters set forth above, such
opinion shall also include a statement to the effect
that although such counsel has not independently
verified the accuracy or completeness of the
information in the Registration Statement and
Prospectus, they have participated in conferences
with representatives of the Company, its independent
accountants and its counsel and the investment
bankers at which the contents of the Registration
Statement and the Prospectus were discussed at
length and nothing has come to their attention that
causes them to believe that (except for financial
statements and schedules and other
- 38 -
39
financial or statistical data, as to which such
counsel need express no opinion) the Registration
Statement and the Prospectus included therein at the
time the Registration Statement became effective,
contained any untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as
amended or supplemented, if applicable (except for
financial statements and schedules and other
financial or statistical data, as to which such
counsel need express no opinion) contained any untrue
statement of a material fact or omitted to state a
material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading.
(j) At the time of the execution of this Agreement, the
Representatives shall have received from Xxxxxx
Xxxxxxxx LLP a letter dated such date and addressed
to the Underwriters, in form and substance
satisfactory to the Representatives, together with
signed or reproduced copies of such letter for each
of the Underwriters, (i) confirming that they are
independent public accountants within the meaning of
the Act including the applicable published rules and
regulations and are in compliance with the
applicable requirements relating to the
qualification of accountants under Regulation S-X
and (ii) containing statements and information of
the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to
the financial statements and certain financial
information contained in the Registration Statement
and the Prospectus.
(k) At the Firm Closing Date, the Representatives shall
have received from Xxxxxx Xxxxxxxx LLP a letter,
dated as of such Closing Date, to the effect that
they reaffirm the statements made in the letter
furnished pursuant to subsection (j) of this
Section, except that the specified date referred to
shall be a date not more than three business days
prior to the Firm Closing Date.
(l) At the Firm Closing Date, the Shares shall have been
approved for quotation on the Nasdaq National
Market, subject only to official notice of issuance.
(m) The NASD shall have confirmed that it has not raised
any objection with respect to the fairness and
reasonableness of the underwriting terms and
arrangements.
(n) At the date of this Agreement, the Representatives
shall have received an agreement (i) from the
Company substantially in the form of Exhibit A-1
hereto, (ii) from the Selling Stockholders
substantially in the form of
- 39 -
40
Exhibit A-2 hereto and (iii) from the persons and
entities listed on Exhibit C hereto substantially in
the form of Exhibit B hereto.
(o) In the event that the Underwriters exercise their
option provided in Section 2 hereof to purchase all
or any portion of the Option Shares, the
representations and warranties of the Company and
the Selling Stockholders contained herein and the
statements in any certificates furnished by the
Company, the Selling Stockholders hereunder or Xxxxx
Xxxxxx shall be true and correct as of each Closing
Date, the Representatives shall have received:
(i) Certificates, dated such Closing Date, of
the President and Chief Financial Officer of
the Company, an authorized representative of
the Principal Stockholder and Xxxxx Xxxxxx,
respectively, each confirming that the
certificates delivered at the Firm Closing
Date remain true and correct as of such
date.
(ii) The favorable opinions of Xxxxx & Xxxxxxx,
P.C., counsel for the Company and the
Principal Stockholder, together with the
favorable opinion of _____________, special
counsel to the Company, each in form and
substance satisfactory to counsel for the
Underwriters, dated such Closing Date,
relating to the Option Shares to be
purchased on such Closing Date and
otherwise to the same effect as the
opinions required by Sections 10(f), 10(g)
and 10(h) hereof.
(iii) The favorable opinion of Xxxxxxxx Ingersoll
Professional Corporation, counsel for the
Underwriters, dated such Closing Date
relating to the Option Shares to be
purchased on such Closing Date and
otherwise to the same effect as the
opinions required by Section 10(i) hereof.
(iv) A letter from Xxxxxx Xxxxxxxx LLP, in form
and substance satisfactory to the
Representatives and dated such Closing
Date, substantially in the same form and
substance as the letter furnished to the
Representatives pursuant to Section 10(k)
hereof, except that the "specified date" in
the letter furnished pursuant to this
paragraph shall be a date not more than
five days prior to such Closing Date.
(p) On each date requested, counsel for the
Underwriters shall have been furnished with such
documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance
and sale of the Shares as herein contemplated, or in
order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all
proceedings taken by the Company in connection
- 40 -
41
with the issuance and sale of the Shares as herein
contemplated shall be satisfactory in form and
substance to the Representatives and counsel for the
Underwriters.
(q) If any condition specified in this Section shall
not have been fulfilled when and as required to be
fulfilled, by the date of this Agreement, or, in the
case of any condition to the purchase of Option
Shares, on a date which is after the Firm Closing
Date, the obligations of the several Underwriters to
purchase the relevant Option Shares, may be
terminated by the Representatives by notice to the
Company at any time at or prior to such Closing
Date, as the case may be, and such termination shall
be without liability or any party to any other party
except as provided in Section 13 is and except that
Sections 7, 8, 9 and 14 shall survive any such
termination and remain in full force and effect.
11. EFFECTIVE DATE OF AGREEMENT AND TERMINATION. This Agreement
shall become effective when notification of the effectiveness of the
Registration Statement has been released by the Commission.
This Agreement may be terminated at any time prior to the Firm Closing
Date by you by written notice to the Company and the Selling Stockholders if
any of the following has occurred: (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
adverse change or a development involving a prospective adverse change in or
affecting particularly the condition, financial or otherwise, of the Company or
the earnings, business affairs or business prospects of the Company, whether or
not arising in the ordinary course of business, which would, in your reasonable
judgment, materially impair the investment quality of the Shares, (ii) any
outbreak of hostilities or other national or international calamity or crisis
or change in the economic conditions, if the effect of such outbreak, calamity,
crisis or change on the financial markets of the United States would, in your
reasonable judgment, make the offering or delivery of the Shares impracticable,
(iii) suspension of trading in securities generally on the New York Stock
Exchange or limitation on prices (other than limitations on hours or numbers of
days of trading) for securities on such exchange, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
your reasonable opinion materially and adversely affects or will materially and
adversely affect the business or operations of the Company, (v) declaration of
a banking moratorium by either federal, New York or Pennsylvania state
authorities, (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in your
reasonable opinion has a material adverse effect on the financial markets in
the United States, or (vii) if there shall have been such a material change in
the general economic, political or financial conditions or if the effect of
international conditions on the financial markets in the United States shall be
such as, in your reasonable judgment, makes it inadvisable to proceed with the
delivery of the Shares. Any termination of this Agreement pursuant to this
paragraph of Section 11 shall be without liability on the part of the Company
or the Selling Stockholder or any Underwriter, except as otherwise provided in
Sections 9 and 12 hereof.
- 41 -
42
If on the Firm Closing Date or on the Option Closing Date, as the case
may be, any of the Underwriters shall fail or refuse to purchase the Firm
Shares or Option Shares, as the case may be, which it has agreed to purchase
hereunder on such date, and arrangements satisfactory to the non-defaulting
Underwriter(s) for purchase of such Shares are not made within 48 hours after
such default, this Agreement will terminate without liability on the part of
the non-defaulting Underwriter(s); provided, however, that if the number of
Shares to be purchased by the defaulting Underwriter(s) on such Closing Date
shall not exceed 10% of the Shares that all the Underwriters are obligated to
purchase on such date, then each of the non-defaulting Underwriter(s) shall be
obligated to purchase such Shares on the terms herein set forth in proportion
to their respective obligations hereunder. In any such case which does not
result in termination of this Agreement, either the non-defaulting
Underwriter(s) or the Company shall have the right to postpone the Firm Closing
Date or the Option Closing Date, as the case may be, but in no event for longer
than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve the defaulting Underwriter(s) from liability in respect of any default
of such Underwriter(s) under this Agreement. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 11.
Failure or refusal by any Selling Stockholder (otherwise than for a
reason sufficient hereunder to justify the termination of this Agreement) to
sell and deliver on the Firm Closing Date or the Option Closing Date, as the
case may be, the aggregate number of Shares agreed to be sold and delivered by
such Selling Stockholder shall in no manner relieve the Company of its
obligations under this Agreement, and the Underwriters shall have the right to
elect to purchase on such Closing Date, in accordance with the terms and
provision of this Agreement, the number of Shares to be sold by the Company. In
the event the Underwriters elect to purchase the remaining Shares, then the
Firm Closing Date or the Option Closing Date, as the case may be, may be
postponed, in your discretion, for a period of not more than seven days in
order that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected.
12. EXPENSES. Whether or not this Agreement becomes effective or is
terminated or the sale of Shares to the Underwriters is consummated, the
Company shall pay all costs, including mailing costs, expenses (including stock
transfer taxes), fees (other than the fees of counsel for the Underwriters
except to the extent set forth in clause (iv) of this Section 12 or in Section
14 hereof) and taxes incident to (i) the preparation, printing, filing and
distribution under the Act of the Registration Statement (including the
financial statements therein and exhibits thereto) and the Prospectus, each
preliminary prospectus and all amendments and supplements to any of them prior
to or during the period specified in paragraph (e) of Section 5 hereof, but not
exceeding ten months after the Effective Date, (ii) the printing and
distribution of the Prospectus and all amendments or supplements to it during
the period specified in paragraph (e) of Section 5 hereof, but not exceeding
ten months after the Effective Date, (iii) the preparation, printing and
distribution of the Blue Sky Memoranda and the printing and distribution of
this Agreement and other underwriting documents, including the Agreement Among
Underwriters, the Dealer Agreement, the Underwriters' Questionnaire and Power
of Attorney, and all other agreements,
- 42 -
43
memoranda, correspondence and other documents printed and delivered in
connection with the offering of the Shares, (iv) the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of the several states (including the fees and disbursements of counsel for
the Underwriters relating to such registration or qualification), (v) filing
fees and clearance of the NASD in connection with the offering, (vi)
underwriter, dealer and institutional meetings (including the travel, lodging
and other expenses of the Company's representatives), except that the
Underwriters shall pay their own respective travel and lodging expenses, and
(vii) the performance by the Company and the Selling Stockholder of their other
obligations under this Agreement.
13. NOTICES. All notices and communications given pursuant to
this Agreement shall be in writing and mailed or transmitted by any standard
form of telecommunication: (a) if to the Company, at 100 Sainte Claire Plaza,
0000 Xxxxx Xxxx, Xxxxxxxxxx, XX 00000, Attention: Xxxxxxx X. Xxxx, telephone
number: (000) 000-0000, facsimile number: (000) 000-0000, with a copy to Xxxxx
& Xxxxxxx, P.C., 2900 CNG Tower, 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX
00000-0000, Attention: Xxxxx Xxxx, Esq., telephone number: (000) 000-0000,
facsimile number: (000) 000-0000; (b) if to the Selling Stockholders, to the
Selling Stockholders c/o UBICS, Inc., 100 Sainte Claire Plaza, 0000 Xxxxx Xxxx,
Xxxxxxxxxx, XX 00000, Attention: Xxxxxxx X. Xxxx, telephone number: (412)
000-0000, facsimile number: (000) 000-0000, with a copy to Xxxxx & Xxxxxxx,
P.C., 2900 CNG Tower, 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000-0000,
Attention: Xxxxx Xxxx, Esq., telephone number: (000) 000-0000, facsimile
number: (000) 000-0000; and (c) if to you, c/o Parker/Xxxxxx Incorporated at
000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx, XX 00000, Attention: Syndicate
Department, telephone number: (000) 000-0000, facsimile number (000) 000-0000,
with a copy to Xxxxxxxx Xxxxxxxxx Professional Corporation, One Oxford Centre,
000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx, XX 00000-0000, Attention: Xxxxxx
Xxxxx, Esq., telephone number: (000) 000-0000, facsimile number: (412)
562-1041; or in any case to such other address as the person to be notified may
have requested in writing.
14. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(a) The respective indemnities, agreements,
representations, warranties and other statements of
the Selling Stockholders, the Company, Xxxxx Xxxxxx,
the officers and directors of the Company and
Selling Stockholders and of the several Underwriters
set forth in or made pursuant to this Agreement
shall remain operative and in full force and effect,
and will survive delivery and payment for the
Shares, regardless of (i) any investigation, or
statement as to the results thereof, made by or on
behalf of any Underwriter or by or on behalf of
Xxxxx Xxxxxx, the Company, its officers or directors
or any controlling person of the Company or the
Selling Stockholders or any controlling person of
the Selling Stockholders or (ii) acceptance of the
Shares and payment for them hereunder.
(b) If this Agreement is terminated pursuant to this
Section, such termination shall be without liability
of any party to any other party except as provided
- 43 -
44
in Section 12 hereof, and provided further that
Sections 7, 8, 9 and 14 shall survive such
termination and remain in full force and effect.
(c) If this Agreement shall be terminated by the
Underwriters because of any failure or refusal on
the part of the Sellers to comply with the terms or
to fulfill any of the conditions of this Agreement,
the Company agrees to reimburse the several
Underwriters for all out-of-pocket expenses
(including the fees and expenses of its counsel)
reasonably incurred by them.
15. PARTIES. Except as otherwise expressly provided, this Agreement
has been and is made solely for the benefit of and shall be binding upon the
Company, the Selling Stockholders, the Underwriters, any controlling persons
referred to herein and their respective heirs, executors, successors and
assigns, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this Agreement.
The terms "successors and assigns" shall not include a purchaser of any of the
Shares from any of the several Underwriters merely because of such purchase.
16. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania.
- 44 -
45
17. COUNTERPARTS. This Agreement may be signed in various counterparts
which together shall constitute one and the same instrument. Please confirm by
signing and returning to us four counterparts of this Agreement that the
foregoing correctly sets forth the agreement among the Company, the Selling
Stockholders, Xxxxx Xxxxxx and the several Underwriters.
Very truly yours,
UBICS, INC.
By:
-----------------------------------
Name:
Title:
THE SELLING STOCKHOLDERS NAMED
IN SCHEDULE I
By:
-----------------------------------
Name:
Title: Attorney-in-Fact
--------------------------------------
Xxxxx Xxxxxx
The foregoing Underwriting Agreement is hereby confirmed and accepted on behalf
of each Underwriter as of the date first above written.
XXXXXX/HUNTER INCORPORATED
By:
----------------------------
Name:
Title:
XXXXX & XXXXXXXXXXXX, INC.
By:
----------------------------
Name:
Title:
Acting on behalf of themselves and as Representatives of the several
Underwriters named in Schedule II annexed hereto.
- 45 -
46
SCHEDULE I
Number of Number of
Firm Shares Option Shares
Selling Stockholders to be sold to be sold
-------------------- ---------- ----------
United Breweries Information & 400,000 300,000
Consultancy Services Ltd.
Arco Investment Group Ltd. 100,000 --------
47
SCHEDULE II
Firm Shares
to be Purchased
Xxxxxx/Hunter Incorporated...............................
Xxxxx & Xxxxxxxxxxxx, Inc................................
48
EXHIBIT A-1 TO UNDERWRITING AGREEMENT
UBICS, Inc.
Initial Public Offering of Common Stock
Xxxxxx/Hunter Incorporated
Xxxxx & Xxxxxxxxxxxx, Inc.
as Representatives of the several Underwriters
c/o Parker/Hunter Incorporated
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Re: UBICS, Inc.
Initial Public Offering of Common Stock
---------------------------------------
Ladies and Gentlemen:
The undersigned, on behalf of UBICS, Inc., a Delaware corporation (the
"Company"), has been advised and understands that in connection with the
proposed initial public offering of common stock, par value $.01 per share (the
"Common Stock"), of the Company, the Company intends to enter into the
Underwriting Agreement (the "Underwriting Agreement") with you. In order to
induce you to execute the Underwriting Agreement, the undersigned, on behalf of
the Company, agrees that, during the period of 180 days from the date of the
Prospectus (as defined in the Underwriting Agreement), without the prior
written consent of Xxxxxx/Xxxxxx Incorporated, the Company will not, directly
or indirectly, sell, offer, pledge, contract or grant an option to sell,
transfer, or otherwise dispose of, or announce the offering of, or file any
registration statement under the Securities Act of 1933, as amended, in respect
of, any shares of Common Stock or securities convertible into or exchangeable
or exercisable for shares of Common Stock or publicly announce the intention to
do any of the foregoing, except for sales of shares of Common Stock in
accordance with the Underwriting Agreement.
If for any reason the Underwriting Agreement shall be terminated prior
to the Firm Closing Date (as defined in the Underwriting Agreement), the
agreement set forth herein shall likewise be terminated.
Dated: ________________ __, 1997.
Very truly yours,
UBICS, INC.
----------------------------------------
Name:
Title:
49
EXHIBIT A-2 TO UNDERWRITING AGREEMENT
UBICS, Inc.
Initial Public Offering of Common Stock
Xxxxxx/Xxxxxx Incorporated
Xxxxx & Xxxxxxxxxxxx, Inc.
as Representatives of the several Underwriters
c/o Parker/Hunter Incorporated
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Re: UBICS, Inc.
Initial Public Offering of Common Stock
---------------------------------------
Ladies and Gentlemen:
The undersigned has been advised and understands that in connection
with the proposed initial public offering of common stock, par value $.01 per
share (the "Common Stock"), of UBICS, Inc., a Delaware corporation (the
"Company"), the Company intends to enter into the Underwriting Agreement (the
"Underwriting Agreement") with you. In order to induce you to execute the
Underwriting Agreement, the undersigned agrees that, during the period of 180
days from the date of the Prospectus (as defined in the Underwriting
Agreement), without the prior written consent of Xxxxxx/Xxxxxx Incorporated,
the undersigned will not, directly or indirectly, sell, offer, pledge, contract
or grant an option to sell (including without limitation any short sale),
transfer, establish an open put equivalent or otherwise dispose of any shares
of Common Stock, options or warrants to acquire shares of Common Stock held by
the undersigned, or publicly announce the intention to do any of the foregoing,
except for sales of shares of Common Stock in accordance with the Underwriting
Agreement.
If for any reason the Underwriting Agreement shall be terminated prior
to the Firm Closing Date (as defined in the Underwriting Agreement), the
agreement set forth herein shall likewise be terminated.
Dated: ___________ __, 1997.
Very truly yours,
[INSERT NAME OF SELLING STOCKHOLDER]
----------------------------------------
Name:
Title:
50
EXHIBIT B TO UNDERWRITING AGREEMENT
UBICS, Inc.
Initial Public Offering of Common Stock
Xxxxxx/Xxxxxx Incorporated
Xxxxx & Xxxxxxxxxxxx, Inc.
as Representatives of the several Underwriters
c/o Parker/Hunter Incorporated
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Re: UBICS, Inc.
Initial Public Offering of Common Stock
---------------------------------------
Ladies and Gentlemen:
The undersigned has been advised and understands that in connection
with the proposed initial public offering of common stock, par value $.01 per
share (the "Common Stock"), of UBICS, Inc., a Delaware corporation (the
"Company"), the Company intends to enter into the Underwriting Agreement (the
"Underwriting Agreement") with you. In order to induce you to execute the
Underwriting Agreement, the undersigned agrees that, during the period of 180
days from the date of the Prospectus (as defined in the Underwriting
Agreement), without the prior written consent of Xxxxxx/Xxxxxx Incorporated,
the undersigned will not, directly or indirectly, sell, offer, pledge, contract
or grant an option to sell (including without limitation any short sale),
transfer, establish an open put equivalent or otherwise dispose of any shares
of Common Stock, options or warrants to acquire shares of Common Stock held by
the undersigned, or publicly announce the intention to do any of the foregoing,
except for sales of shares of Common Stock in accordance with the Underwriting
Agreement.
If for any reason the Underwriting Agreement shall be terminated prior
to the Firm Closing Date (as defined in the Underwriting Agreement), the
agreement set forth herein shall likewise be terminated.
Dated: ______________ __, 1997.
Very truly yours,
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Name:
51
EXHIBIT C
Xxxxx Xxxxxx
Xxxxxxx X. Xxxx
O'Xxxx Xxxxxxxx
Xxxx Xxxxxxxx