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EXHIBIT 1
SPIRE CORPORATION COMMON STOCK
(PAR VALUE $0.01 PER SHARE)
UNDERWRITING AGREEMENT
Boston, Massachusetts
________ __, 1998
XXXXXX XXXXXXX INCORPORATED
FIRST ALBANY CORPORATION
ADVEST, INC.
As Representatives of the
Several Underwriters
c/o Xxxxxx Xxxxxxx Incorporated
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
Spire Corporation, a Massachusetts corporation (the "Company"), and The
Xxxxx X. Xxxxxx Family Trust (the "Trust") and the Spire Corporation 401(k)
Profit Sharing Plan (the "Plan") (collectively the Trust and the Plan are
referred to herein as the "Selling Stockholders") confirm their agreement with
Xxxxxx Xxxxxxx Incorporated ("Xxxxxx Xxxxxxx"), First Albany Corporation ("First
Albany") and Advest, Inc. ("Advest"), and each of the other underwriters, if
any, named in Schedule A hereto (collectively, the "Underwriters," which term
shall also include any underwriter substituted as hereinafter provided in
Section 11), for whom Xxxxxx Xxxxxxx, First Albany and Advest are acting as
representatives (in such capacity, Xxxxxx Xxxxxxx, First Albany and Advest are
herein called the "Representatives"), with respect to the sale by the Company
and the Selling Stockholders and the purchase by the Underwriters, acting
severally and not jointly, of an aggregate of 1,500,000 shares of the Common
Stock, $0.01 par value per share, of the Company ("Common Stock"), of which
1,000,000 shares are to be sold by the Company and 500,000 shares are to be sold
by the Selling Stockholders (collectively, the "Firm Shares"), and with respect
to the grant by the Company to the Underwriters, acting severally and not
jointly, of the option described in Section 2(b) hereof to purchase therefrom
all or any part of 225,000 additional shares of Common Stock for the purpose of
covering over-allotments, if any. The Firm Shares and all or any part of the
shares of Common Stock subject to the option described in Section 2(b) hereof
(the "Option Shares") are hereinafter collectively referred to as the "Shares."
The words "you" and "your" refer to the Representatives of the Underwriters.
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1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING STOCKHOLDERS.
I. The Company represents and warrants to, and agrees with, each of the
Underwriters as of the date hereof, and as of the Closing Date, as defined
in Section 2(c) hereof, and the Option Closing Date, as defined in Section
2(b) hereof, if any, as follows:
(a) A registration statement on Form S-2 (File No. 333-41445) with
respect to the Shares, including a prospectus subject to completion,
has been prepared by the Company in conformity with the requirements
of the Securities Act of 1933, as amended (the "Act"), and the
applicable Rules and Regulations ( as defined below) of the Securities
and Exchange Commission (the "Commission") and has been filed with the
Commission; such amendments to such registration statement, and such
amended prospectuses subject to completion, as may have been required
prior to the date hereof have been similarly prepared and filed with
the Commission; and the Company will file such additional amendments
to such registration statement, and such amended prospectuses subject
to completion, as may hereafter be required. Copies of such
registration statement and each such amendment, each such related
prospectus subject to completion (collectively, the "Preliminary
Prospectuses" and individually, a "Preliminary Prospectus"), each
document incorporated by reference therein and each exhibit thereto
have been delivered to you. For purposes hereof, "Rules and
Regulations" means the rules and regulations adopted by the Commission
under either the Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as applicable. If the registration
statement has been declared effective under the Act by the Commission,
the Company will prepare and promptly file with the Commission,
pursuant to subparagraph (1) or (4) of Rule 424(b) of the Rules and
Regulations under the Act or as part of a post-effective amendment to
the registration statement (including a final form of prospectus), the
information omitted from the registration statement pursuant to Rule
430A(a) of the Rules and Regulations under the Act. If the
registration statement has not been declared effective under the Act
by the Commission, the Company will prepare and promptly file a
further amendment to the registration statement, including a final
form of prospectus. The term "Registration Statement" as hereinafter
used in this Agreement shall mean such registration statement,
including financial statements, schedules and exhibits in the form in
which it became or becomes effective (including, if the Company
omitted information from the registration statement pursuant to Rule
430A(a) of the Rules and Regulations under the Act, the information
deemed to be a part of the registration statement at the time it
became effective pursuant to Rule 430A(b) of the Rules and Regulations
under the Act) and, in the event of any amendment thereto after the
effective date of such registration statement, shall also mean (from
and after the effectiveness of such amendment) such registration
statement as so amended, together with any registration statement
filed by the Company pursuant to Rule 462(b) under the Act. The term
"Prospectus" as used in this Agreement shall mean the prospectus
relating to the Shares as included in
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such registration statement at the time it became or becomes
effective, except that if any revised prospectus shall be provided to
the Underwriters by the Company for use in connection with the
offering of the Shares that differs from the Prospectus on file with
the Commission at the time the registration statement became or
becomes effective (whether or not such revised prospectus is required
to be filed with the Commission pursuant to Rule 424(b)(3) of the
Rules and Regulations under the Act), the term "Prospectus" shall
refer to such revised prospectus from and after the time it is first
provided to the Underwriters for such use, together with the term
sheet or abbreviated term sheet filed with the Commission pursuant to
Rule 424(b)(7) under the Act. Any reference herein to the Registration
Statement, the Prospectus, any amendment or supplement thereto or any
Preliminary Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein, and any reference herein
to the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement or Prospectus shall be deemed to refer to and
include the filing of any document with the Commission deemed to be
incorporated by reference therein.
(b) Neither the Commission nor any state regulatory authority has
issued any order preventing or suspending the use of any Preliminary
Prospectus, at the time of filing thereof, or instituted proceedings
for that purpose, and each such Preliminary Prospectus, at the time of
filing thereof, has conformed in all material respects to the
requirements of the Act and the Rules and Regulations and, at the time
of filing thereof, has not included any untrue statement of a material
fact or omitted to state any material fact necessary to make the
statements therein not misleading and at the time the Registration
Statement became or becomes effective and at all times subsequent
thereto up to and including the Closing Date (as hereinafter defined)
and any Option Closing Date (as hereinafter defined), and during such
longer period as the Prospectus may be required to be delivered in
connection with sales by an Underwriter or a dealer, (i) the
Registration Statement and Prospectus, and any amendments or
supplements thereto, contained and will contain all material
information required to be included therein by the Act and the Rules
and Regulations and conformed and will conform in all material
respects to the requirements of the Act and the Rules and Regulations,
and (ii) neither the Registration Statement nor the Prospectus, nor
any amendment or supplement thereto included or will include any
untrue statement of a material fact or omitted or will omit to state
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. The documents incorporated by reference in
the Registration Statement, the Prospectus, any amendment or
supplement thereto or any Preliminary Prospectus, when they became or
become effective under the Act or were or are filed with the
Commission under the Exchange Act conformed or will conform in all
material respects with the requirements of the Act or the Exchange
Act, as applicable, and the Rules and Regulations, and as of the date
any such document was or is filed with the Commission under the
Exchange Act such document did not, and on the Closing Date and on any
Option Closing Date
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will not, omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
(c) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the Commonwealth of
Massachusetts. Each of the subsidiaries of the Company (collectively,
the "Subsidiaries" and individually, a "Subsidiary") has been duly
organized and is validly existing in good standing under the laws of
its jurisdiction of organization. The Company and each of the
Subsidiaries are duly qualified and licensed as a foreign corporation
and in good standing in each jurisdiction in which their respective
operations requires such qualification or licensing, except where the
failure to be so qualified would not have a material adverse effect on
the condition, financial or otherwise, or on the business affairs,
position, prospects, value, operation, properties, business or results
of operation of the Company and the Subsidiaries taken as a whole
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"). The Company and each of the Subsidiaries have all
requisite power and authority, and have obtained any and all necessary
authorizations, approvals, orders, licenses, certificates, franchises
and permits of and from all governmental or regulatory officials and
bodies (including, without limitation, the United States Environmental
Protection Agency and those other officials and bodies having
jurisdiction over similar matters), to own or lease their respective
properties and conduct their respective businesses as described in the
Prospectus (collectively, "Government Approvals"), except where the
failure to so obtain any such Government Approval would not have a
Material Adverse Effect; the Company and each of the Subsidiaries are
and have been doing business in compliance with all such Government
Approvals, except where the failure to so comply would not have a
Material Adverse Effect; and neither the Company nor any of the
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Government Approvals. All of
the outstanding shares of capital stock of each of the Subsidiaries
have been duly authorized and validly issued, are fully paid and
non-assessable and are owned by the Company free and clear of all
liens, encumbrances and security interests, and no options, warrants
or other rights to purchase, agreements or other obligations to issue
or other rights to convert any obligations into, or exchange any
securities for shares of capital stock of or ownership interests in
any of the Subsidiaries are outstanding.
(d) The Company has the duly authorized, issued and outstanding
capitalization set forth in the Prospectus under "Capitalization"
based upon the assumptions set forth therein and would have had the as
adjusted capitalization set forth therein based upon the assumptions
set forth therein, and the Company is not a party to or bound by any
instrument, agreement or other arrangement (except as disclosed in the
Prospectus) providing for it to issue any capital stock, rights,
warrants, options or other securities, except for this Agreement. The
Shares and all other securities issued or issuable by the Company
conform in all material
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respects to all statements with respect thereto contained in the
Registration Statement and the Prospectus. All issued and outstanding
shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable and were not
issued in violation of any preemptive rights or other rights to
subscribe for or purchase securities. The Shares have been duly
authorized and, when issued, paid for and delivered in accordance with
the terms hereof, will be validly issued, fully paid and
non-assessable and are not and will not be subject to any preemptive
or other rights to subscribe for or purchase securities; the holders
thereof will not be subject to any liability solely as such holders;
and the certificates representing the Shares will be in due and proper
form as previously authorized by the Company.
(e) The audited and unaudited consolidated financial statements of
the Company, together with the notes and schedules thereto, included
in the Registration Statement, each Preliminary Prospectus and the
Prospectus fairly present the financial position and the results of
operations, changes in cash flows and changes in stockholders' equity
of the Company at the respective dates and for the respective periods
to which they apply; and each of such audited consolidated financial
statements has been prepared in conformity with generally accepted
accounting principles and the Rules and Regulations, consistently
applied throughout the periods involved, all adjustments necessary for
a fair presentation of results for such periods have been made and
such unaudited consolidated financial statements have been prepared on
a basis substantially consistent with that of such audited
consolidated financial statements. Except as described in the
Prospectus, there has been no change or development involving a
Material Adverse Effect since the date of the consolidated financial
statements included in any of the Preliminary Prospectuses, the
Prospectus and the Registration Statement, and the outstanding debt,
the property, both tangible and intangible, and the business of the
Company and each of the Subsidiaries conform in all material respects
to the descriptions thereof contained in the Registration Statement
and the Prospectus. The summary and selected consolidated financial
and statistical data included in the Registration Statement and the
Prospectus present fairly the information shown therein or
incorporated by reference and have been compiled on a basis consistent
with the unaudited and audited consolidated financial statements
included therein. The Company's internal accounting controls are
sufficient to cause the Company to comply with the Foreign Corrupt
Practices Act of 1977, as amended. Neither the Company nor any of the
Subsidiaries has any material contingent obligation which is not
disclosed in the Registration Statement.
(f) KPMG Peat Marwick LLP ("KPMG"), whose reports are filed with the
Commission as a part of the Registration Statement, are independent
certified public accountants as required by the Act and the Rules and
Regulations.
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(g) (i) the Company and each of the Subsidiaries have paid all
material federal, state, local and foreign taxes for which they are
respectively liable and which are due and payable, including, but not
limited to, withholding taxes and amounts payable under Chapters 21
through 24 of the Internal Revenue Code of 1986, as amended, and (ii)
none of the Company or any Subsidiary has any tax deficiency or claims
outstanding, assessed or, to its knowledge, proposed against it.
(h) No transfer tax, stamp duty or other similar tax is payable by or
on behalf of the Underwriters in connection with (i) the issuance by
the Company of the Shares, (ii) the purchase by the Underwriters of
the Shares, or (iii) the consummation by the Company and the Selling
Stockholders of any of their respective obligations under this
Agreement.
(i) The Company and each of the Subsidiaries maintain insurance of
the types and in the amounts which the Company reasonably believes to
be adequate for their respective businesses, all of which insurance is
in full force and effect.
(j) Except as disclosed in the Prospectus, there is no action, suit,
proceeding, inquiry, investigation, litigation or governmental
proceeding, domestic or foreign, pending or, to the Company's
knowledge, threatened against (or currently existing or previously
occurring facts or circumstances that provide a basis for the same),
or involving the properties or business of the Company or any of the
Subsidiaries, that (i) questions the validity of the capital stock of
the Company or this Agreement or of any action taken or to be taken by
the Company pursuant to or in connection with this Agreement, (ii) is
required to be disclosed in the Registration Statement that is not so
disclosed (and such proceedings, if any, as are summarized in the
Registration Statement are accurately summarized in all material
respects), (iii) would have a Material Adverse Effect or (iv) relates
to or affects the Company or processes or products which the Company
designed, developed, licenses, uses, manufactures or markets which, if
adversely determined, would have a Material Adverse Effect.
(k) The Company has full legal right, power and authority to enter
into this Agreement and to consummate the transactions provided for
herein and therein; and this Agreement has been duly authorized,
executed and delivered by the Company. This Agreement, assuming it has
been duly authorized, executed and delivered by the Underwriters,
constitutes a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms (except
as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general
application relating to or affecting enforcement of creditors' rights
and the application of equitable principles in any action, legal or
equitable, and except as rights to indemnify or contribution may be
limited by applicable law), and none of the Company's execution or
delivery of this Agreement, its performance hereunder,
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its consummation of the transactions contemplated herein or the
conduct of its business and that of each of the Subsidiaries as
described in the Registration Statement, the Prospectus and any
amendments or supplements thereto conflicts with or will conflict with
in any material respect or results, or will result, in any breach or
violation of any of the material terms or provisions of, or
constitutes, or will constitute, a default under, or result in the
creation or imposition of any lien, charge, claim, encumbrance,
pledge, security interest, defect or other restriction on equity of
any kind whatsoever upon, any property or assets (tangible or
intangible) of the Company or any of the Subsidiaries, pursuant to the
terms of (i) the corporate charter, operating agreement or by-laws of
the Company or any of the Subsidiaries, (ii) any license, contract,
indenture, mortgage, deed of trust, voting trust agreement,
stockholders agreement, note, loan or credit agreement or any other
agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them is or may be bound or
to which any of their respective properties or assets (tangible or
intangible) is or may be subject or (iii) any statute, judgment,
decree, order, rule or regulation applicable to the Company or any of
the Subsidiaries of any arbitrator, court, regulatory body or
administrative agency or other governmental agency or body, domestic
or foreign, having jurisdiction over the Company or any of the
Subsidiaries or any of their respective activities or properties.
(l) No consent, approval, authorization or order of, and no filing
with, any court, regulatory body, government agency or other body,
domestic or foreign, is required for the issuance of the Shares
pursuant to the Prospectus and the Registration Statement, or the
performance of this Agreement and the transactions contemplated
hereby, except such as have been or may be obtained under the Act, the
Exchange Act or the Rules and Regulations or may be required under
state securities or Blue Sky laws in connection with the Underwriters'
purchase and distribution of the Shares.
(m) All executed agreements or copies of executed agreements filed as
exhibits to the Registration Statement to which the Company or any of
the Subsidiaries is a party or by which any of them may be bound or to
which any of their respective assets, properties or businesses may be
subject have been duly and validly authorized, executed and delivered
by the Company or such Subsidiaries, and, assuming due authorization,
execution and delivery by the other parties thereto, constitute the
legal, valid and binding agreements of the Company and such
Subsidiaries enforceable against the Company and such Subsidiaries in
accordance with their respective terms (except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application relating to or
affecting enforcement of creditors' rights and the application of
equitable principles in any action, legal or equitable, and except as
rights to indemnity or contribution may be limited by applicable law).
The descriptions in the Registration Statement of contracts and other
documents are accurate in all material respects and fairly present the
information required to
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be shown with respect thereto by Form S-2, and there are no contracts
or other documents that are required by the Act to be described in the
Registration Statement or filed as exhibits to the Registration
Statements that are not described or filed as required, and the
exhibits that have been filed are complete and correct copies of the
documents of which they purport to be copies.
(n) Subsequent to the respective dates as of which information is set
forth in the Registration Statement and Prospectus, and except as may
otherwise be indicated or contemplated herein or therein, neither the
Company nor any of the Subsidiaries has (i) issued any securities or
incurred any liability or obligation, direct or contingent, for
borrowed money (except for borrowings made pursuant to the Company's
and the Subsidiaries' existing credit agreements), (ii) entered into
any transaction which could reasonably be expected to have a Material
Adverse Effect or (iii) declared or paid any dividend or made any
other distribution on or in respect of its capital stock.
(o) Except as disclosed in the Registration Statement, no material
default exists in the due performance and observance of any term,
covenant or condition of any license, contract, indenture, mortgage,
installment sale agreement, lease, deed of trust, voting trust
agreement, stockholders agreement, note, loan or credit agreement or
any other agreement or instrument evidencing an obligation for
borrowed money, or any other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which the Company
or any of the Subsidiaries may be bound or to which any of the
property or assets (tangible or intangible) of the Company or any of
the Subsidiaries is subject or affected.
(p) The Company and each of the Subsidiaries have a generally
satisfactory employer-employee relationship with their respective
employees and are in compliance with all federal, state, local, and,
where applicable, foreign, laws and regulations respecting employment
and employment practices, terms and conditions of employment and wages
and hours, except where the failure to so comply would not have a
Material Adverse Effect. To the Company's knowledge, there are no
pending investigations involving the Company or any of the
Subsidiaries by the United States Department of Labor or any other
governmental agency responsible for the enforcement of such federal,
state, local or foreign laws and regulations. To the Company's
knowledge, there is no unfair labor practice charge or complaint
against the Company or any of the Subsidiaries pending before the
National Labor Relations Board or any strike, picketing, boycott,
dispute, slowdown or stoppage pending or threatened against or
involving the Company or any of the Subsidiaries, and no such strike,
picketing, boycott, dispute, slowdown or stoppage has ever occurred.
No representation question exists respecting the employees of the
Company or any of the Subsidiaries, and no collective bargaining
agreement or modification thereof is currently being negotiated by the
Company or any of the Subsidiaries. There are no expired or
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existing collective bargaining agreements of the Company or any of the
Subsidiaries.
(q) Neither the Company nor any of the Subsidiaries has incurred any
liability arising under or as a result of any breach of the provisions
of the Act.
(r) Except as disclosed in the Prospectus or Exhibit 1 hereto,
neither the Company nor any of the Subsidiaries maintains, sponsors or
contributes to any program or arrangement that is an "employee pension
benefit plan", an "employee welfare benefit plan", or a "multiemployer
plan" (collectively, the "ERISA Plans") as such terms are defined in
Sections 3(2), 3(1) and 3(37), respectively, of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). With
respect to any ERISA Plan that the Company or any of the Subsidiaries,
now or at any time previously, maintains or contributes to, all
applicable federal laws and regulations have been complied with,
except for such instances of noncompliance which, either singly or in
the aggregate, would not have a Material Adverse Effect. Neither the
Company nor any of the Subsidiaries has ever completely or partially
withdrawn from a "multiemployer plan".
(s) The Company and its Subsidiaries are in compliance with all
applicable existing federal, state, local and foreign laws and
regulations relating to the protection of human health or the
environment or imposing liability or requiring standards of conduct
concerning any Hazardous Materials ("Environmental Laws"), except for
such instances of noncompliance which, either singly or in the
aggregate, would not have a Material Adverse Effect. The term
"Hazardous Material" means (i) any "hazardous substance" as defined by
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, (ii) any "hazardous waste" as defined by the
Resource Conservation and Recovery Act, as amended, (iii) any
petroleum or petroleum product, (iv) any polychlorinated biphenyl and
(v) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material, waste or substance regulated under or within the
meaning of any other Environmental Law.
(t) The Company maintains a system 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 generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(u) The Company has not distributed and will not distribute (within
the meaning of Rule 140 of the Rules and Regulations under the Act)
any offering
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material in connection with the offering and sale of the Shares, other
than the Prospectus, any Preliminary Prospectus, the Registration
Statement and other materials permitted by the Act.
(v) No holders of any securities of the Company or of any options,
warrants or other convertible or exchangeable securities of the
Company exercisable for or convertible or exchangeable for securities
of the Company have the right, except as may have been waived, to
include any securities issued by the Company in the Registration
Statement or any registration statement to be filed by the Company
within 180 days of the date hereof or to require the Company to file a
registration statement under the Act during such 180 day period.
(w) The Company has not taken and will not take, directly or
indirectly (except for any action that may be taken by the
Underwriters), any action designed to or which has constituted or
which might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Shares or otherwise.
(x) Except to the extent disclosed in the Prospectus, (i) the Company
and each of the Subsidiaries own or possess, or have a license or
other right to use, the patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems
or procedures), technology, trademarks, service marks and trade names,
together with all applications for any of the foregoing, currently
used or held for use by them in connection with their respective
businesses, except where the failure to own or possess, alone or in
aggregate, would not have a Material Adverse Effect on the Company,
(ii) neither the Company nor any of the Subsidiaries has received any
notice of infringement of or conflict with asserted rights of others
with respect to any of the foregoing which has not been finally
resolved and (iii) except as set forth in the Registration Statement,
neither the Company nor any of the Subsidiaries is obligated or under
any liability whatsoever to make any material payments by way of
royalties, fees or otherwise to any owner or licensee of, or other
claimant to, any patent, patent right, license, invention, trademark,
service xxxx, trade name, copyright, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), technology or other intangible
asset, with respect to the use thereof or in connection with the
conduct of its business or otherwise.
(y) The Company and each of the Subsidiaries have good and marketable
title to, or valid and enforceable leasehold estates in, all items of
real and personal property stated in the Prospectus (including the
financial statements included or incorporated by reference therein) to
be owned or leased by them, free and clear of all liens, charges,
claims, encumbrances, pledges, security interests, defects or
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other restrictions on equity of any kind whatsoever, other than (i)
those referred to in the Prospectus (including such financial
statements), (ii) liens for taxes not yet due and payable and (iii)
mechanics, materialmen, warehouse and other statutory liens arising in
the ordinary course of business which, either individually or in the
aggregate, do not have a Material Adverse Effect.
(z) Except as described in the Prospectus under "Underwriting" and on
the cover page thereof, there are no claims, payments, issuances,
arrangements or understandings for services in the nature of a
finder's or origination fee with respect to the sale of the Shares
hereunder or any other arrangements, agreements, understandings,
payments or issuance with respect to the Company or any of the
Subsidiaries or any of their respective officers, directors, employees
or affiliates that may affect the Underwriters' compensation, as
determined by the National Association of Securities Dealers, Inc.
("NASD").
(aa) Quotations and last sale data with respect to the Company's
Common Stock are and will be reported on the National Association of
Securities Dealers Automated Quotation National Market (the
"NASDAQ-NM") under the symbol "SPIR" and the Company knows of no
currently existing reason or set of facts which is likely to result in
the inability or refusal to so quote the Common Stock or the Shares.
(ab) The Company is not an "investment company" or an "affiliated
person" or "promoter" of, or "principal underwriter" for, an
"investment company", as such terms are defined in the Investment
Company Act of 1940, as amended (the "1940 Act"), or subject to
regulation under the 1940 Act.
(ac) Any certificate signed by any officer of the Company and
delivered to the Underwriters or to the Underwriters' Counsel (as
hereinafter defined) shall be deemed a representation and warranty by
the Company to the Underwriters as to the matters covered thereby.
(ad) The Company has delivered to the Representatives written
agreements (collectively, the "Lock-Up Agreements"), in form and
substance satisfactory to the Representatives, with each of its
directors and executive officers and each of the Selling Stockholders
(each such person is named in Schedule C hereto), to the effect that,
among other things, such person will not, for a period ending 180 days
after the date of the Prospectus, directly or indirectly, offer, sell,
assign, transfer, encumber, contract to sell, grant an option to
purchase or otherwise sell or dispose of shares of Common Stock or
other capital stock of the Company, any options, rights or warrants to
purchase shares of Common Stock or other capital stock of the Company
or any securities convertible into or exchangeable or exercisable for
shares of Common Stock or other capital stock of the Company now owned
by such person or subsequently acquired (or as to which such person
now or hereafter has the right to direct the disposition of) otherwise
than hereunder or with the
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prior written consent of Xxxxxx Xxxxxxx; provided, however, that such
agreements may contain an exception providing that such persons
during such period may, without such consent, exercise options
outstanding as of the date of the Prospectus or convey shares of
Common Stock by gift to immediate family members or by will or
intestacy to immediate family members, provided in both cases that
such persons or transferees enter into agreements for the benefit of
the Underwriters containing all of the restrictions set forth in this
Section 1.I.(ad) with respect to such shares of Common Stock; and
further provided that the Trustees of the Plan may cause the Plan to
sell such shares of Common Stock as may be required pursuant to the
terms of the Plan consistent with prior practice.
II. Each Selling Stockholder represents and warrants to, and agrees with,
each of the Underwriters and the Company as of the date hereof and as of
the Closing Date, as defined in Section 2(c) hereof, that:
(a) Such Selling Stockholder as of the Closing Date will have valid
marketable title to such of the Shares as are to be sold by such
Selling Stockholder, free and clear of any pledge, lien, security
interest, encumbrance, claim or equitable interest other than pursuant
to this Agreement; such Selling Stockholder has full right, power and
authority to sell, assign, transfer and deliver the Shares to be sold
by such Selling Stockholder hereunder; and upon delivery of such
Shares and payment of the purchase price as herein contemplated, each
of the Underwriters will obtain valid marketable title to the Shares
purchased by it from such Selling Stockholder, free and clear of any
pledge, lien, security interest, encumbrance, claim or equitable
interest.
(b) Such Selling Stockholder has duly authorized, executed and
delivered, in the form heretofore furnished to the Representatives, a
Power of Attorney (the "Power of Attorney") appointing Xxxxx X.
Xxxxxx and Xxxxxxx X. Xxxxxxxx as attorneys-in-fact (collectively, the
"Attorneys" and individually, an "Attorney") and a Custody Agreement
(the "Custody Agreement") with American Stock Transfer and Trust
Company named therein, as custodian (the "Custodian"); each of the
Power of Attorney and such Custody Agreement constitutes a valid and
binding agreement of the Selling Stockholder, enforceable in
accordance with its terms, except as the enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application relating to or
affecting enforcement of creditors' rights and the application of
equitable principles in any action, legal or equitable, and except as
rights to indemnity or contribution may be limited by applicable law;
and each of such Attorneys approved by such Selling Stockholder,
acting alone, is authorized to execute and deliver this Agreement and
the Certificate referred to in Section 6(j) hereof on behalf of such
Selling Stockholder, to determine the purchase price to be paid by the
several Underwriters to such Selling Stockholder as provided in
Section 2 hereof, to authorize the delivery of the Shares as are to be
sold by such Selling Stockholder under this Agreement and to duly
endorse (in
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blank or otherwise) the certificate or certificates representing such
Shares or a stock power or powers with respect thereto, to accept
payment therefor and otherwise to act on behalf of such Selling
Stockholder in connection with this Agreement and to pay all expenses
in connection therewith.
(c) All authorizations, approvals, consents and orders necessary for
the execution and delivery on behalf of each Selling Stockholder of
the Power of Attorney and the Custody Agreement, the execution and
delivery on behalf of such Selling Stockholder of this Agreement, and
the sale and delivery of the Shares as are to be sold by such Selling
Stockholder under this Agreement (other than, at the time of the
execution hereof (if the Registration Statement has not yet been
declared effective by the Commission), the issuance of the order of
the Commission declaring the Registration Statement effective and
such authorizations, approvals or consents as may be necessary under
state or other securities or Blue Sky laws) have been obtained and
are in full force and effect; and the Selling Stockholder has full
right, power and authority to enter into and perform its obligations
under the Power of Attorney and Custody Agreement and this Agreement,
to sell, assign, transfer and deliver the Shares to be sold by such
Selling Stockholder under this Agreement.
(d) Such Selling Stockholder will not, for a period ending 180 days
after the effective date of the Registration Statement, offer, sell,
assign, transfer, encumber, contract to sell, grant an option to
purchase, or otherwise sell or dispose of any shares of Common Stock,
any options or warrants to purchase any shares of Common Stock, or
any securities convertible into or exchangeable for shares of Common
Stock, owned directly by such Selling Stockholder or with respect to
which such Selling Stockholder has the power of disposition,
otherwise than hereunder or with the prior written consent of Xxxxxx
Xxxxxxx, except as may otherwise be provided in the Lock-Up Agreement
signed by each such Selling Stockholder; provided, however, that the
Trustees of the Plan may cause the Plan to sell such shares of Common
Stock as may be required pursuant to the terms of the Plan. Such
Selling Stockholder agrees and consents to the entry of stop transfer
instruction with the Company's transfer agent against the transfer of
shares of Common Stock held by such Selling Stockholder except in
compliance with the foregoing restrictions.
(e) Certificates in negotiable form for all Shares to be sold by such
Selling Stockholder under this Agreement, together with a stock power
or powers duly endorsed in blank by such Selling Stockholder, have
been placed in custody with the Custodian for the purpose of effecting
delivery of such Shares hereunder.
(f) This Agreement has been duly executed and delivered by or on
behalf of such Selling Stockholder and is a valid and binding
agreement of such Selling Stockholder, enforceable in accordance with
its terms, except as the indemnification and contribution provisions
hereunder may be limited by
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applicable law and except as the enforcement hereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
laws of general application relating to or affecting enforcement of
creditors' rights and the application of equitable principles in any
action, legal or equitable; and the performance of this Agreement and
the consummation of the transactions herein contemplated will not
result in a breach of or default under any bond, debenture, note or
other evidence of indebtedness, or any contract, indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
to which such Selling Stockholder is a party or by which such Selling
Stockholder or any Shares as are to be sold by such Selling
Stockholder hereunder may be bound or result in any violation of any
law, order, rule, regulation, writ, injunction or decree of any court
or governmental agency or body.
(g) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to, or which might
reasonably be expected to, cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate the sale
or resale of the Shares.
(h) Such Selling Stockholder has not distributed and will not
distribute any prospectus or other offering material in connection
with the offering and sale of the Shares.
(i) All information furnished by or on behalf of such Selling
Stockholder in the capacity as Selling Stockholder relating to such
Selling Stockholder and the Shares as are to be sold by such Selling
Stockholder that is contained in such representations and warranties
of such Selling Stockholder, in the Selling Stockholder's Power of
Attorney or set forth in the Registration Statement and the Prospectus
is, and on the Closing Date and on the Option Closing Date, as
applicable, will be, true, correct and complete, and does not, and on
the Closing Date and on the Option Closing Date, as applicable, 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.
(j) Such Selling Stockholder will review the Prospectus and will
comply with all agreements and satisfy all conditions on its part to
be complied with or satisfied pursuant to this Agreement on or prior
to the Closing Date or the Option Closing Date, as applicable, and
will advise one of its Attorneys prior to the Closing Date or Option
Closing Date, as applicable, if any statement to be made on behalf of
the Selling Stockholder in the certificate contemplated by Section
6(j) would be inaccurate if made as of the Closing Date or the Option
Closing Date, as applicable.
(k) The Selling Stockholder does not have any preemptive right,
co-sale right or right of first refusal or other similar right to
purchase any of the Shares that are to be sold by the Company to the
Underwriters pursuant to this Agreement.
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2. PURCHASE, SALE AND DELIVERY OF THE SHARES.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, and subject to the terms and conditions
herein set forth, the Company agrees to sell 1,000,000 Firm Shares
and the Option Shares to the several Underwriters and the Selling
Stockholders agree to sell to the several Underwriters the number of
the Firm Shares set forth on Schedule B opposite the name of each
Selling Stockholder, and each Underwriter, severally and not jointly,
agrees to purchase that number of Firm Shares set forth in Schedule A
opposite its name plus any additional number of Firm Shares that such
Underwriter may become obligated to purchase pursuant to the
provisions of Section 11 hereof. As of the Closing Date, certificates
in negotiable form for the total number of Shares to be sold
hereunder by the Selling Stockholders will have been placed in
custody with the Custodian pursuant to the Custody Agreements
executed by the Selling Stockholders for delivery of all Shares to be
sold hereunder by the Selling Stockholders. The Selling Stockholders
specifically agree that the Shares represented by the certificates
held and to be held in custody for the Selling Stockholders under the
Custody Agreements are subject to the interests of the Underwriters
hereunder, and that the obligations of the Selling Stockholders
hereunder shall not be terminable by any act or deed of such Selling
Stockholders (or by any other person, firm or corporation including
the Company, the Custodian or the Underwriters) or by operation of
law (including without limitation, the bankruptcy, insolvency,
dissolution, liquidation or termination of the Selling Stockholders)
or by the occurrence of any other event or events, except as set
forth in the Custody Agreements. If any such event should occur prior
to the delivery to the Underwriters of the Shares hereunder,
certificates for the Shares shall be delivered by the Custodian in
accordance with the terms and conditions of this Agreement as if such
event has not occurred, regardless of whether or not the Custodian
shall have received notice of such event.
(b) In addition, on the basis of the representations, warranties,
covenants and agreements herein contained and upon not less than two
business days' notice from the Representatives of the Underwriters,
for a period of thirty days from the effective date of this Agreement,
the Company grants to the Underwriters an option to purchase up to
225,000 Option Shares. Such option is granted solely for the purpose
of covering over-allotments in the sale of Firm Shares and is
exercisable as provided in Section 4 hereof. Option Shares shall be
purchased severally for the account of the Underwriters in proportion
to the number of Firm Shares set forth opposite the name of such
Underwriters in Schedule A hereto. The time and date of delivery of
any of the Option Shares is herein called the "Option Closing Date".
The respective purchase obligations of each Underwriter with respect
to the Option Shares may be adjusted by the Representatives so that no
Underwriter shall be obligated to purchase Option Shares other than in
100 share increments. The price of both the Firm Shares and any Option
Shares shall be $_____ per share.
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(c) Payment of the purchase price for, and delivery of certificates
for, the Firm Shares and the Option Shares shall be made on each of
the Closing Date and the Option Closing Date, respectively, by wire
transfer of immediately available funds, payable to the order of the
Company and the Custodian, as applicable, at the offices of Xxxxxx
Xxxxxxx at Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, or at such other
place as shall be agreed upon by the Representatives, the Company and
the Selling Stockholders or, if mutually agreed to by the Company and
the Representatives, by wire transfer, upon delivery of certificates
(in form and substance satisfactory to the Representatives)
representing such securities to the Representatives. Delivery and
payment for the Firm Shares shall be made at 10:00 a.m. (Eastern Time)
on the third business day following the public offering, or at such
other time and date as shall be agreed upon by the Representatives and
the Company. The time and date of payment for and delivery of the Firm
Shares is herein called the "Closing Date." In the event that any or
all of the Option Shares are purchased by the Underwriters, the date
and time at which certificates for Option Shares are to be delivered
shall be determined by the Representatives and the Company but shall
not be earlier than three nor later than ten full business days after
the exercise of such option, nor in any event prior to the Closing
Date. Certificates for the Firm Shares and the Option Shares, if any,
shall be in definitive, fully registered form, shall bear no
restrictive legends and shall be in such denominations and registered
in such names as the Representatives may request in writing at least
two (2) business days prior to the Closing Date or the Option Closing
Date, as applicable. The certificates for the Firm Shares and the
Option Shares, if any, shall be made available to the Representatives
at such office or such other place as the Representatives may
designate for inspection and packaging not later than 9:30 a.m.
(Eastern Time) on the last business day prior to the Closing Date or
the Option Closing Date, as applicable.
3. PUBLIC OFFERING OF THE SHARES.
As soon after the Registration Statement becomes effective as the
Representatives deem advisable, the Underwriters shall make a public offering of
the Shares at the price and upon the other terms set forth in the Prospectus.
4. COVENANTS OF THE COMPANY AND THE SELLING STOCKHOLDERS.
I. The Company agrees with each of the Underwriters as follows:
(a) The Company will use its best efforts to cause the Registration
Statement and any amendment thereof, if not effective at the time and date that
this Agreement is executed and delivered by the parties hereto, to become
effective as promptly as possible; it will notify the Representatives, promptly
after it shall receive notice thereof, of the time when the Registration
Statement or any subsequent amendment to the Registration Statement has become
effective or any supplement to the Prospectus has been filed; if the Company
omitted information from the Registration Statement at the time it was
originally declared effective in reliance upon Rule
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430A(a), the Company will provide evidence satisfactory to the Representatives
that the Prospectus contains such information and has been filed, within the
time period prescribed, with the Commission pursuant to subparagraph (1) or (4)
of Rule 424(b) of the Rules and Regulations under the Act or as part of a
post-effective amendment to such Registration Statement as originally declared
effective which is declared effective by the Commission; if for any reason the
filing of the final form of Prospectus is required under Rule 424(b)(3) of the
Rules and Regulations under the Act, it will provide evidence satisfactory to
the Representatives that the Prospectus contains such information and has been
filed with the Commission within the time period prescribed; it will notify the
Representatives promptly of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional
information; promptly upon the Representatives' request, it will prepare and
file with the Commission any amendments or supplements to the Registration
Statement or Prospectus which, in the opinion of counsel for the several
Underwriters ("Underwriters' Counsel"), may be necessary or advisable so as to
comply with all applicable laws and regulations (including, without limitation,
Section 11 under the Act and Rule 10b-5 under the Exchange Act) in connection
with the distribution of the Shares by the Underwriters; it will promptly
prepare and file with the Commission, and promptly notify the Representatives
of the filing of, any amendments or supplements to the Registration Statement
or Prospectus which may be necessary to correct any statements or omissions,
if, at any time when a prospectus relating to the Shares is required to be
delivered under the Act, any event shall have occurred as a result of which the
Prospectus or any other prospectus relating to the Shares as then in effect
would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; in case any
Underwriter is required so as to comply with all applicable laws and
regulations (including, without limitation, Section 11 under the Act and Rule
10b-5 under the Exchange Act) to deliver a prospectus nine months or more after
the effective date of the Registration Statement in connection with the sale of
the Shares, it will prepare promptly upon request, but at the expense of such
Underwriter, such amendment or amendments to the Registration Statement and
such prospectus or prospectuses as may be necessary to permit compliance with
the requirements of Section 10(a)(3) of the Act; and it will file no amendment
or supplement to the Registration Statement or Prospectus (other than any
document required to be filed under the Exchange Act that upon filing is deemed
incorporated therein by reference) which shall not previously have been
submitted to the Representatives a reasonable time prior to the proposed filing
thereof or to which you shall reasonably object in writing or which is not in
compliance with the Act and the Rules and Regulations under the Act. Until the
distribution of the Shares pursuant to the Prospectus has been completed, the
Company will furnish to the Representatives at or prior to the filing thereof a
copy of any document that upon filing is deemed to be incorporated by reference
in the Registration Statement or Prospectus.
(b) The Company will advise the Representatives, promptly after it
shall receive notice or obtain knowledge thereof, of the issuance of any stop
order by the Commission suspending the effectiveness of the Registration
Statement or of the initiation or threat of any proceeding for that purpose; and
it will promptly use its best efforts to prevent the issuance of any stop order
or to obtain its withdrawal at the earliest possible moment if such stop order
should be issued.
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(c) The Company will use its best efforts to qualify the Shares for
offering and sale under the securities laws of such jurisdictions as the
Representatives may designate and to continue such qualifications in effect for
so long as may be required for the purposes of the distribution of the Shares,
except that the Company shall not be required in connection therewith or as a
condition thereof to qualify as a foreign corporation or to execute a general
consent to service of process in any jurisdiction. In each jurisdiction in which
the Shares shall have been qualified as above provided, the Company will make
and file such statements and reports in each year as are or may be reasonably
required by the laws of such jurisdiction.
(d) The Company will furnish to each of the Underwriters, as soon as
available, copies of the Registration Statement (three of which, to be delivered
to the Representatives, will be manually signed and which will include all
exhibits), each Preliminary Prospectus, the Prospectus and any amendment or
supplements to such documents, including any prospectus prepared to permit
compliance with Section 10(a)(3) of the Act, all in such quantities as you may
from time to time reasonably request.
(e) The Company will make generally available to its stockholders as
soon as practicable, but in any event not later than the 45th day following the
end of the fiscal quarter first occurring after the first anniversary of the
effective date of the Registration Statement, an earnings statement (which will
be in reasonable detail but need not be audited) complying with the provisions
of Section 11(a) of the Act and covering a twelve-month period beginning after
the effective date of the Registration Statement.
(f) During a period of five years after the date hereof, the Company
will furnish to its stockholders, to the extent required by applicable laws or
the Rules and Regulations, as soon as practicable after the end of each
respective period, annual reports (including financial statements audited by
independent certified public accountants) and unaudited quarterly reports of
operations for each of the first three quarters of the fiscal year, and will
furnish to you and each of the Underwriters, upon written request (i)
concurrently with furnishing to its stockholders, statements of operations of
the Company for each of the first three quarters in the form furnished to the
Company's stockholders; (ii) concurrently with furnishing to its stockholders, a
balance sheet of the Company as of the end of such fiscal year, together with
statements of operations, cash flows and stockholders' equity of the Company for
such fiscal year, accompanied by a copy of the certificate or report thereon of
independent certified public accountants; (iii) as soon as they are available,
copies of all reports (financial or other) mailed to stockholders; (iv) as soon
as they are available, copies of all reports and financial statements furnished
to or filed with the Commission, any securities exchange or the NASD; (v) every
material press release and every material news item or article in respect of the
Company or its affairs which was released or prepared by the Company or any of
the Subsidiaries; and (vi) any additional information of a public nature
concerning the Company or any of the Subsidiaries, or their respective
businesses, which you may reasonably request. During such five year period the
foregoing financial statements shall be on a consolidated basis to the extent
that the accounts of the Company and the Subsidiaries are consolidated, and
shall be accompanied by similar financial statements for any Subsidiary which is
not so consolidated.
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(g) The Company will apply the net proceeds from the sale of the
Shares being sold by it in the manner set forth under the caption "Use of
Proceeds" in the Prospectus.
(h) The Company will maintain a transfer agent and, if necessary
under the jurisdiction of incorporation of the Company, a registrar (which may
be the same entity as the transfer agent) for its Common Stock.
(i) The Company will cause the transfer agent for the Common Stock to
register the transfer of the Shares upon their presentation in proper form for
transfer by the Selling Stockholders and to have certificates representing the
Shares available to you as required hereunder; provided, that the Company shall
not be required to take any action unless the Registration Statement is then
effective under the Act.
(j) If the transactions contemplated hereby are not consummated by
reason of any failure, refusal or inability on the part of the Company or the
Selling Stockholders to perform any agreement on its part to be performed
hereunder or to fulfill any condition of the Underwriters' obligations
hereunder, or if the Company shall terminate this Agreement under Section 10(a),
the Company will reimburse the several Underwriters for all reasonable
out-of-pocket expenses up to $75,000 including reasonable fees and disbursements
of Underwriters' Counsel incurred by the Underwriters in investigating,
preparing to market and marketing the Shares.
(k) If at any time during the 90-day period after the Registration
Statement becomes effective, any publication or event relating to or affecting
the Company shall occur as a result of which in your opinion the market price of
the Common Stock has been or is likely to be materially affected (regardless of
whether such publication or event necessitates a supplement to or amendment of
the Prospectus), the Company will, after written notice from the Representatives
advising the Company to the effect set forth above, forthwith prepare, consult
with the Representatives concerning the substance of and disseminate a press
release or other public statement, reasonably satisfactory to the
Representatives, responding to or commenting on such publication or event,
consistent with past practice.
(l) For a period ending 180 days from the date of the Prospectus, the
Company will not, without your prior written consent, issue, sell, offer or
agree to sell, or otherwise dispose of, directly or indirectly, any Common
Stock, any options, rights or warrants with respect to any shares of Common
Stock or any securities convertible into, exercisable for or exchangeable for
Common Stock other than the sale of the Shares and the Option Shares to be sold
by the Company hereunder, and the Company's issuance of shares of Common Stock
pursuant to the exercise of currently outstanding stock options and warrants or
grants of options under the Company's 1985 Incentive Stock Option Plan,
Directors Stock Option Plan and 1996 Equity Incentive Plan.
II. The Selling Stockholders agree with each of the Underwriters and the
Company that in order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal Responsibility
Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with
respect to the transactions herein contemplated, the Selling
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Stockholders shall deliver to you prior to or on the Closing Date a properly
completed and executed United States Treasury Department Form W-9 or Form W-8
(or other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
5. PAYMENT OF EXPENSES.
(a) The Company and the Selling Stockholders hereby agree to pay on
each of the Closing Date and the Option Closing Date (to the extent not paid on
the Closing Date) all expenses and fees (other than fees of Underwriters'
Counsel, except as provided in (iii), (v) and (vii) below) up to a maximum of
$100,000 incident to the performance of the obligations of the Company and the
Selling Stockholders under this Agreement (provided that as between the Company
and the Selling Stockholders their relative obligations to pay shall be in such
a manner as the Company and the Selling Stockholders have agreed or shall
agree), including, without limitation, (i) the fees and expenses of accountants
and counsel for the Company and the Selling Stockholders, (ii) all costs and
expenses incurred in connection with the preparation, duplication, printing,
filing (including the filing fees of the Commission), mailing (including postage
with respect thereto) and delivery of the Registration Statement, the
Preliminary Prospectuses and the Prospectus and any amendments and supplements
thereto, including the cost of all copies thereof supplied to the Underwriters
in quantities as hereinabove stated, (iii) all costs and expenses incurred in
connection with the printing, mailing and delivery of this Agreement, the
Selected Dealer Agreements, the Agreement Among Underwriters, Underwriters'
Questionnaires, Underwriters' Powers of Attorney, the Selling Stockholders'
Powers of Attorney and Custody Agreements and related documents, including the
cost of all copies thereof supplied to the Underwriters in quantities as
hereinabove stated, (iv) the printing, engraving, issuance and delivery of the
Shares, including any transfer or other taxes payable thereon, (v) the
qualification of the Shares under state or foreign securities or Blue Sky laws,
including the costs of printing and mailing a Blue Sky Memorandum and any
supplements or amendments thereto and disbursements and fees of Underwriters'
Counsel, in connection therewith, (vi) fees and expenses of the Company's
transfer agent, (vii) fees and expenses incurred in connection with the review
by the NASD of certain of the matters set forth in this Agreement, and (viii)
the fees and expenses incurred in connection with the listing of the Shares on
the NASDAQ-NM and any other exchange.
(b) If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 6, Section 10(b) or Section 12, unless
the basis upon which the Representatives terminate this Agreement results from
the default or omission of any Underwriter, the Company shall reimburse and
indemnify the Underwriters for (i) all of their reasonable out-of-pocket
expenses up to $75,000 (provided that as between the Company and the Selling
Stockholders their relative obligations to pay shall be in such a manner as the
Company and the Selling Stockholders have agreed or shall agree), including the
fees and disbursements of Underwriters' Counsel, plus (ii) the Blue Sky fees and
expenses identified in Section 5(a)(v) above.
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6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters hereunder shall be subject to the
continuing accuracy of the representations and warranties of the Company and the
Selling Stockholders herein as of the date hereof and as of the Closing Date and
the Option Closing Date, if any, as if they had been made on and as of the
Closing Date or the Option Closing Date, as the case may be; the accuracy on and
as of the Closing Date or Option Closing Date, if any, of the statements of
officers of the Company made pursuant to the provisions hereof; and the
performance by the Company and the Selling Stockholders on and as of the Closing
Date and the Option Closing Date, if any, of their respective covenants and
obligations hereunder and to the following further conditions:
(a) The Registration Statement shall have become effective not later
than 5:00 p.m., Eastern Time, on the date of this Agreement or such
later date and time as shall be consented to in writing by the
Representatives, and, at the Closing Date and the Option Closing Date,
if any, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or shall be pending or contemplated by the
Commission and any request on the part of the Commission for
additional information shall have been complied with to the
satisfaction of Underwriters' Counsel. If the Company has elected to
rely upon Rule 430A of the Rules and Regulations under the Act, the
price of the Shares and any other information previously omitted from
the effective Registration Statement pursuant to such Rule 430A shall
have been transmitted to the Commission for filing pursuant to Rule
424(b) of the Rules and Regulations under the Act within the
prescribed time period, and, prior to the Closing Date, the Company
shall have provided evidence satisfactory to the Representatives of
such timely filing, or a post-effective amendment providing such
information shall have been promptly filed and declared effective in
accordance with the requirements of Rule 430A of the Rules and
Regulations under the Act.
(b) The Representatives shall not have advised the Company that the
Registration Statement, or any amendment thereto, contains an untrue
statement of fact that, in the Representatives' opinion or in the
opinion of Underwriters' Counsel, is material, or omits to state a
fact that, in the Representatives' opinion or in the opinion of
Underwriters' Counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading,
or that the Prospectus, or any supplement thereto, contains an untrue
statement of fact that, in the Representatives' opinion or in the
opinion of Underwriters' Counsel, is material, or omits to state a
fact that, in the Representatives' opinion or in the opinion of
Underwriters' Counsel, is material and is required to be stated
therein or is necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
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(c) On the Closing Date and the Option Closing Date, if any, the
Representatives shall have received from Underwriters' Counsel the
favorable opinion to the effect that:
(i) the capital stock of the Company, including, without
limitation, the Common Stock, conforms in all material
respects to the description thereof contained in the
Prospectus;
(ii) the Registration Statement is effective under the Act,
and if applicable, the filing of all pricing and other
information has been timely made in the appropriate
form under Rule 430A of the Rules and Regulations, and,
to such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has
been issued, and no proceedings for that purpose have
been instituted or threatened by the Commission. Such
counsel shall state that such counsel has participated
in conferences with officers and other representatives
of the Company, counsel for the Company,
representatives of the independent certified public
accountants for the Company and the Representatives, at
which conferences the contents of the Registration
Statement and the Prospectus and related matters were
discussed and, although such counsel is not passing
upon and does not assume any responsibility for, nor
has such counsel independently verified, the accuracy,
completeness or fairness of the statements contained in
the Registration Statement and Prospectus (except as to
matters referred to in subparagraph (i) above of this
Section 6(c), no facts have come to the attention of
such counsel (relying as to materiality to a large
extent upon the opinions of officers and other
representatives of the Company) that lead them to
believe that either the Registration Statement or any
amendment thereto, at the time such Registration
Statement or amendment became effective or any
Preliminary Prospectus (other than information omitted
pursuant to Rule 430A) or the Prospectus or any
amendment or supplement thereto as of the date of such
opinion contained or contains any untrue statement of a
material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make
the statements therein not misleading (it being
understood that such counsel need express no view with
respect to the financial statements and schedules and
other financial and statistical data included in any
Preliminary Prospectus, the
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Registration Statement (including any exhibit thereto)
or the Prospectus or any amendment or supplement
thereto);
(iii) each of the Preliminary Prospectuses, the Registration
Statement and the Prospectus and any amendments or
supplements thereto (other than the financial
statements and schedules, related notes and other
financial and statistical data included therein, as to
which no opinion need be rendered) comply as to form in
all material respects with the requirements of the Act
and the Rules and Regulations; and
(iv) this Agreement has been duly authorized, executed and
delivered by the Company.
The opinion of Underwriters' Counsel to be dated the Option Closing
Date, if any, may confirm as of the Option Closing Date the statements
made by such counsel in their opinion delivered on the Closing Date.
(d) On the Closing Date and the Option Closing Date, if any, the
Underwriters shall have received the favorable opinion of Xxxxxxxxx &
Manello, P.C., counsel to the Company, dated the Closing Date and the
Option Closing Date, if any, addressed to the Underwriters and in form
and substance reasonably satisfactory to Underwriters' Counsel, to the
effect that:
(i) (A) the Company and each of the Subsidiaries are
duly organized and validly existing as corporations in
good standing under the laws of the jurisdiction of
their organization, and (B) the Company is duly
qualified as a foreign corporation and in good
standing in listed jurisdictions; all of the
outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly
issued and are fully-paid and non-assessable and are
owned of record by the Company; the outstanding shares
of capital stock of the Subsidiaries are owned by the
Company free and clear of all liens, encumbrances and
security interests (except as described in the
Prospectus), and, to such counsel's knowledge, no
options, warrants or other rights to purchase,
agreements or other obligations to issue or other
rights to convert any obligations into, or exchange
any securities for, any shares of capital stock of or
ownership interests in any of the Subsidiaries are
outstanding;
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(ii) the Company and each of the Subsidiaries have the
corporate power to own, lease and operate their
respective properties and to conduct their respective
businesses as described in the Prospectus;
(iii) the authorized and outstanding capital stock of the
Company is as set forth in the Prospectus under the
heading "Capitalization," subject to the assumptions
set forth therein, and, except as provided for in this
Agreement and as described in the Prospectus, to such
counsel's knowledge, the Company is not a party to or
bound by any instrument, agreement or other arrangement
providing for it to issue any capital stock, rights,
warrants, options or other securities. All shares of
Common Stock of the Company issued and outstanding on
the date hereof prior to the issuance of the Shares
have been duly authorized and validly issued and are
fully paid and non-assessable; and to such counsel's
knowledge, none of such shares were issued in violation
of any preemptive rights under the Massachusetts
Business Corporation Law, or similar statutory rights;
and the capital stock of the Company, including,
without limitation, the Common Stock, conforms in all
material respects to the description thereof contained
in the Prospectus. To such counsel's knowledge, the
Firm Shares and the Option Shares are not and will not
be subject to any preemptive rights under the
Massachusetts Business Corporation Law or similar
statutory rights. The Firm Shares and the Option Shares
being sold by the Company have been duly authorized and
(with respect to the Shares being sold by the Company),
when issued, paid for and delivered in accordance with
the terms hereof, will be validly issued, fully paid
and non-assessable; and the certificates representing
the Shares are in due and proper form. To such
counsel's knowledge, no holders of any securities of
the Company or of any options, warrants or other
convertible or exchangeable securities of the Company
exercisable for or convertible or exchangeable for
securities of the Company have the right, except as
have been waived, to include any securities as issued
by the Company in the Registration Statement or any
registration statement to be filed by the Company
within 180 days of the date hereof or to require the
Company to file a registration statement under the Act
during such 180 day period;
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(iv) the Registration Statement is effective under the Act,
and, if applicable, the filing of all pricing and other
information has been timely made in the appropriate
form under Rule 430A of the Rules and Regulations under
the Act, and, to the best of such counsel's knowledge,
no stop order suspending the effectiveness of the
Registration Statement has been issued, and no
proceedings for that purpose have been instituted or,
to such counsel's knowledge, threatened by the
Commission;
(v) the Registration Statement and the Prospectus and any
amendment or supplement thereto (other than the
financial statements and schedules, related notes and
other financial and statistical data included therein,
as to which no opinion need be rendered) comply as to
form in all material respects with the requirements of
the Act and the Rules and Regulations under the Act.
(vi) (A) to such counsel's knowledge, there is not pending
or threatened against the Company or any of the
Subsidiaries, or involving any of their respective
properties or businesses, any action, suit, proceeding,
inquiry, investigation, litigation or governmental
proceeding, domestic or foreign, that (y) is required
to be disclosed in the Registration Statement and is
not so disclosed (and such proceedings as are
summarized in the Registration Statement are accurately
summarized in all material respects), or (z) questions
the validity of the capital stock of the Company, this
Agreement, or any action taken or to be taken by the
Company pursuant to or in connection with this
Agreement and (B) no statute or regulation or legal or,
to such counsel's knowledge, governmental proceeding
required to be described in the Prospectus is not
described as required;
(vii) the Company has the corporate power and authority to
enter into this Agreement and to consummate the
transactions provided for herein; and this Agreement
has been duly authorized, executed and delivered by the
Company. None of the Company's execution or delivery of
this Agreement, its performance hereunder or its
consummation of the transactions contemplated herein
results or will result in any breach or violation of
any of the material terms or provisions of, or
constitutes or will constitute a default under, or
result in the creation or imposition of any lien,
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charge, claim, pledge, security interest, or other
encumbrance upon, any property or assets (tangible or
intangible) of the Company or any of the Subsidiaries
pursuant to the terms of (A) the corporate charter,
operating agreement or by-laws or other governing
instrument of the Company or any of the Subsidiaries,
(B) to such counsel's knowledge, any voting trust
agreement or any stockholders agreement, or any
indenture, mortgage, deed of trust, note, loan or
credit agreement or other agreement or instrument known
to such counsel to which the Company or any of the
Subsidiaries is a party or by which any of them is or
may be bound or to which any of their respective
properties or assets (tangible or intangible) is or may
be subject, or (C) any statute, rule or regulation or,
to such counsel's knowledge, any judgment, decree or
order applicable to the Company or any of the
Subsidiaries of any arbitrator, court, regulatory body
or administrative agency or other governmental agency
or body having jurisdiction over the Company or any of
the Subsidiaries or any of their respective activities
or properties, the violation of which would have a
Material Adverse Effect;
(viii) no consent, approval, authorization or order, and no
filing with, any federal or state court, regulatory
body, government agency or other body (other than such
as have been effected under the Act and the Exchange
Act and such as may be required under Blue Sky or state
securities laws or the rules of the NASD in connection
with the purchase and distribution of the Shares by the
Underwriters, as to which no opinion need be rendered)
is required in connection with the issuance of the
Shares pursuant to the Prospectus and the Registration
Statement, the performance of this Agreement and the
transactions contemplated hereby;
(ix) to such counsel's knowledge neither the Company nor any
of the Subsidiaries is in violation of any term or
provision of its corporate charter, operating
agreement, or by-laws or other governing instrument;
(x) the statements in the Prospectus under the captions
"DIVIDEND POLICY," "BUSINESS-GOVERNMENT REGULATION,"
"DESCRIPTION OF SECURITIES TO BE REGISTERED" and
"SHARES ELIGIBLE FOR FUTURE SALE" have been reviewed by
such counsel, and
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insofar as they refer to statements of law,
descriptions of statutes, written contracts, or rules
or regulations are correct in all material respects;
and
(xi) the Company is not an "investment company" or an
"affiliated person" or "promoter" of, or "principal
underwriter" for, an "investment company," as defined
in the 1940 Act or subject to regulation under the 1940
Act.
Such counsel shall state that such counsel has participated in
conferences with officers and other representatives of the
Company and representatives of the independent certified public
accountants for the Company, at which conferences the contents of
the Registration Statement and the Prospectus and related matters
were discussed, and, although such counsel is not passing upon
and does not assume any responsibility for, nor has such counsel
independently verified, the accuracy, completeness or fairness of
the statements contained in the Registration Statement and
Prospectus, no facts have come to the attention of such counsel
that lead them to believe that either the Registration Statement
or any amendment thereto, at any time such Registration Statement
or amendment became effective or any Preliminary Prospectus
circulated by the Underwriters (other than information omitted
pursuant to Rule 430A as of the date of such Preliminary
Prospectus) or the Prospectus or any amendment or supplement
thereto as of the date of such opinion contained or contains any
untrue statement of a material fact or omitted or omits to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances under which they were made (it being understood
that such counsel need express no view with respect to the
financial statements and schedules, related notes, and other
financial and statistical data included or incorporated by
reference in any Preliminary Prospectus circulated by the
Underwriters, the Registration Statement (including any exhibit
thereto) or the Prospectus or any amendment or supplement
thereto). In addition, such counsel shall state that they know of
no contracts, leases or other documents of a character required
to be described in the Registration Statement or Prospectus or to
be filed or incorporated by reference as exhibits to the
Registration Statement which are not described or filed or
incorporated by reference as required.
The foregoing opinions may be limited to the laws of the
Commonwealth of Massachusetts, the laws of the jurisdictions of
incorporation of the Subsidiaries and applicable United States
federal law. In rendering the foregoing opinions, counsel may
rely, to the extent they deem such reliance proper, on the
opinions of other counsel as to matters governed by the laws of
jurisdictions other than the United States and the Commonwealth
of Massachusetts. In rendering such opinions, such
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counsel may rely as to matters of fact, to the extent they deem
proper, on certificates and written statements of responsible
officers of the Company and the Subsidiaries and certificates or
other written statements of officers of departments of various
jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company and the
Subsidiaries, provided that copies of any such statements or
certificates shall be delivered to Underwriters' Counsel if
requested. For purposes of any of the opinions to be rendered by
such counsel pursuant to this subsection (d) of Section 6, the
term "to such counsel's knowledge" shall mean, to the extent that
such opinion relates to a factual issue or to a mixed question of
law and fact, that after examination of documents in such
counsel's files relating to the Offering and considering the
actual knowledge of the individual attorneys in such counsel's
firm who have given substantive attention to matters on behalf of
the Company, such counsel finds no reason to believe that any of
such opinions is factually incorrect.
The opinion of counsel to the Company, to be dated the Option
Closing Date, if any, may confirm as of the Option Closing Date
the statements made by such counsel in their opinion delivered on
the Closing Date.
(e) The Underwriters shall have received, on the Closing Date the
favorable opinion of Xxxxxxxxx & Xxxxxxx, P.C., counsel to the Selling
Stockholders, dated the Closing Date, addressed to the Underwriters
and in form and substance satisfactory to Underwriters' Counsel, to
the effect that:
(i) The Power of Attorney and the Custody Agreement of such
Selling Stockholder have been duly authorized, executed
and delivered on behalf of such Selling Stockholder and
are valid instruments legally sufficient for the
purposes intended;
(ii) Such Selling Stockholder has full right, power and
authority to enter into and to perform its obligations
under this Agreement and to sell, transfer, assign and
deliver the Shares to be sold by such Selling
Stockholder hereunder;
(iii) This Agreement has been duly authorized, executed and
delivered on behalf of the Selling Stockholder;
(iv) Upon the delivery of and payment for the Shares as
contemplated in this Agreement, and upon registration
of the Shares in the names of the Underwriters, the
Underwriters will have acquired good and valid title to
the Shares being sold by such Selling Stockholder free
of any
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pledge, lien, security interest, encumbrance, claim or
equitable interest, including any lien in favor of the
Company or any restriction on transfer imposed by the
Company; and the owner of the Shares being sold by such
Selling Stockholder hereunder, if other than the
Selling Stockholder, is precluded from asserting
against such Underwriters the ineffectiveness of any
unauthorized endorsement.
(f) On the Closing Date and the Option Closing Date, if any, the
Underwriters shall have received the favorable opinion of patent
counsel to the Company, dated the Closing Date and the Option Closing
Date, if any, addressed to the Underwriters and in form and substance
satisfactory to Underwriters' Counsel, to the effect that:
(i) to the best of such counsel's knowledge, none of the
Company's listed patents is invalid;
(ii) to the best of such counsel's knowledge, no valid
patent is infringed by the activities of the Company
described in the Prospectus;
(iii) to the best of such counsel's knowledge, there are no
material defects in the formal papers relating to the
preparation or filing of patent applications relating
to the listed patents;
(iv) to the best of such counsel's knowledge, there are no
material pending or threatened actions, suits,
proceedings or claims by others that the Company is
infringing or otherwise violating any patents,
trademarks, trade secrets, know-how or other
proprietary rights;
(v) except as specifically disclosed in the Prospectus, to
the best of such counsel's knowledge, there are no
pending or threatened actions, suits, proceedings, or
claims by others challenging the validity or scope of
the listed patents held by or licensed to the Company;
(vi) according to such counsel's records, the Company is
listed or is in the process of being listed in the
records of the appropriate foreign office as the sole
holder of record of the foreign patents and foreign
patent applications set forth in a schedule of such
opinion. Such counsel knows of no
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claims of third parties to any ownership interest or
lien with respect to any of such patents or patent
applications.
Such counsel shall also state that since at least ____ it has
represented the Company in the prosecution of the listed patents
and that such counsel has participated in conferences with
employees of the Company regarding the listed patents. Although
such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the sections of the Registration
Statement entitled "Risk Factors -- Protection of Proprietary
Technology" and "Business -- Proprietary Rights" (except as to
matters referred to in subparagraph (vi) of this Section 6(f)),
on the basis of such representation of the Company, nothing has
come to the attention of such counsel which leads them to believe
that such sections of the Registration Statement or any amendment
thereto, at the time such Registration Statement or amendment
became effective, and such portion of the Prospectus or any
amendment or supplement thereto, on the date such Prospectus or
amendment or supplement thereto was filed pursuant to Rule
424(b), and such sections of the Registration Statement and the
Prospectus, or any amendment or supplement thereto, as of the
date of such opinion contained or contains any untrue statement
of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. For purposes of any of the opinions to be
rendered by such counsel pursuant to this subsection (f) of
Section 6, the term "to the best of such counsel's knowledge"
shall have the meaning mutually acceptable to such counsel and
the Representatives.
The favorable opinion of patent counsel to the Company, to be
dated the Option Closing Date, if any, may confirm as of the
Option Closing Date the statements made in their opinion
delivered on the Closing Date.
(g) On or prior to each of the Closing Date and the Option Closing
Date, if any, Underwriters' Counsel shall have been furnished such
customary documents, certificates and opinions as they may reasonably
require for the purpose of enabling them to review or pass upon the
matters referred to in subsection (c) of this Section 6, or in order
to evidence the accuracy, completeness or satisfaction of any of the
representations, warranties or conditions of the Company or the
Selling Stockholders herein contained.
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(h) Prior to each of the Closing Date and the Option Closing Date, if
any, (i) from the respective dates as of which information is set
forth in the Registration Statement and Prospectus, there shall have
been no developments that, individually or in the aggregate, have had
a Material Adverse Effect; (ii) there shall have been no transaction,
not in the ordinary course of business, entered into by the Company or
any of the Subsidiaries, from the latest date as of which the
financial condition of the Company and the Subsidiaries is set forth
in the Registration Statement and Prospectus, that, individually or in
the aggregate, has had a Material Adverse Effect; (iii) neither the
Company nor any of the Subsidiaries shall be in default under any
provision of any instrument relating to any of their respective
outstanding indebtedness; (iv) no material amount of the assets of the
Company or any of the Subsidiaries shall have been pledged or
mortgaged, except as set forth in the Registration Statement and
Prospectus (including the exhibits to the Registration Statement); (v)
no action, suit or proceeding, at law or in equity, shall have been
pending or, to the knowledge of the Company, threatened against the
Company or any of the Subsidiaries, or affecting any of their
respective properties or businesses before or by any court or federal,
state or foreign commission, board or other administrative agency
wherein an unfavorable decision, ruling or finding would have a
Material Adverse Effect; and (vi) no stop order shall have been issued
under the Act and no proceedings therefor shall have been initiated,
or, to the Company's knowledge, threatened or contemplated by the
Commission.
(i) At each of the Closing Date and the Option Closing Date, if any,
the Underwriters shall have received a certificate of the Company
signed by the principal executive officer and by the chief financial
officer of the Company, dated the Closing Date or Option Closing Date,
as the case may be, to the effect that each of such persons has
carefully examined the Registration Statement, the Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct, as if made on and
as of the Closing Date or the Option Closing Date, as
the case may be, and the Company has complied with all
agreements and covenants and satisfied all conditions
contained in this Agreement on its part to be performed
or satisfied at or prior to such Closing Date or Option
Closing Date, as the case may be;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued, and no
proceedings for that purpose have been instituted or
are pending or, to the knowledge of such officer, are
threatened under the Act;
(iii) none of the Registration Statement, the Prospectus nor
any amendment or supplement thereto includes any untrue
statement of a material fact or omits to state any
material
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fact required to be stated therein or necessary to make
the statements therein not misleading and neither the
Preliminary Prospectus nor any supplement thereto
included any untrue statement of a material fact or
omitted to state any material fact required to be
stated therein or necessary to make the statements
therein, in light of the circumstances under which they
were made, not misleading; and
(iv) subsequent to the respective dates as of which
information is given in the Registration and the
Prospectus, neither the Company nor any of the
Subsidiaries has incurred up to and including the
Closing Date or the Option Closing Date, as the case
may be, other than in the ordinary course of their
respective businesses, any material liabilities or
obligations, direct or contingent; the Company has not
paid or declared any dividends or other distributions
on its capital stock; neither the Company nor any of
the Subsidiaries has entered into any transactions not
in the ordinary course of business; and there has not
been any material change in the capital stock or
long-term debt or any material increase in the
short-term borrowings of the Company or any of the
Subsidiaries; neither the Company nor any of the
Subsidiaries has sustained any material loss or damage
to its property or assets, whether or not insured;
there is no litigation that is pending or, to the
knowledge of such officers, threatened against the
Company or any of the Subsidiaries that is required to
be set forth in an amended or supplemented Prospectus
that has not been set forth; and there has occurred no
event required to be set forth in an amended or
supplemented Prospectus that has not been set forth.
References to the Registration Statement and the Prospectus in this
subsection (i) are to such documents as amended and supplemented at
the date of such certificate.
(j) At the Closing Date, the Underwriters shall have received a
certificate of each Selling Stockholder dated the Closing Date to the
effect that the representations and warranties of such Selling
Stockholder in this Agreement are true and correct, as if made on and
as of the Closing Date or the Option Closing Date, as applicable, and
such Selling Stockholder has complied with all agreements and
covenants and satisfied all conditions contained in this Agreement on
its part to be performed or satisfied at or prior to the Closing Date.
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(k) On the date of this Agreement, the Representatives shall have
received a letter in form and substance satisfactory to the
Underwriters and the Underwriters' Counsel addressed to the
Underwriters and dated the date of this Agreement from KPMG and signed
by such firm with respect to such matters as shall have been specified
to such firm by the Representatives prior to the date hereof. At the
Closing Date and the Option Closing Date, if any, the Underwriters
shall have received from KPMG a letter, dated as of the Closing Date
or the Option Closing Date, as the case may be, reaffirming the
statements made in the letter furnished by KPMG to the Underwriters
concurrently with the execution of this Agreement, each such
reaffirming letter to be in form and substance satisfactory to the
Underwriters and the Underwriters' Counsel.
(l) On each of the Closing Date and the Option Closing Date, if any,
there shall have been duly tendered to the Representatives for the
several Underwriters' accounts the appropriate number of Shares.
(m) No order suspending the sale of the Shares in any jurisdiction
designated by the Representatives pursuant to subsection I.(c) of
Section 4 hereof shall have been issued on either the Closing Date or
the Option Closing Date, if any, and no proceedings for that purpose
shall have been instituted or to the knowledge of the Representatives
or the Company shall be contemplated.
(n) The Underwriters shall have received the written agreements of
the persons referred to in Section 1.I. (ad) hereof.
(o) The Shares delivered on the Closing Date or the Option Closing
Date shall have been duly listed, subject to notice of official
issuance, on the NASDAQ-NM.
If any condition to the Underwriters' obligations hereunder to be fulfilled
prior to or at the Closing Date or the relevant Option Closing Date, as the case
may be, is not so fulfilled, the Representatives may terminate this Agreement
or, if the Representatives so elect, they may waive any such conditions that
have not been fulfilled or extend the time for their fulfillment.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to defend, indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any breach of
any representation, warranty, agreement or covenant of the Company herein
contained or any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were
made, not
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misleading; and agrees to reimburse each Underwriter subject to subsection
(d) for any legal or other expenses reasonably incurred by it in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, such
Preliminary Prospectus or the Prospectus, or any such amendment or
supplement, in reliance upon and in strict conformity with written
information furnished with respect to any Underwriter by such Underwriter
expressly for use in the Registration Statement, any Preliminary Prospectus
or the Prospectus or any amendment or supplement thereto, provided that
such written information or omissions only pertain to disclosures in the
Registration Statement, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto directly relating to the transactions
effected by the Underwriters in connection with this offering, and provided
further that the foregoing indemnity with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter) if such untrue
statement or omission or alleged untrue statement or omission made in any
Preliminary Prospectus is eliminated or remedied in the Prospectus and a
copy of the Prospectus has not been furnished to the person asserting any
such loss, claim, damage or liability at or prior to the written
confirmation of the sale of such Shares to such person.
The indemnity agreement in this Section 7(a) shall extend upon the
same terms and conditions to, and shall inure to the benefit of each
person, if any, who controls any Underwriter within the meaning of the Act.
This indemnity agreement shall be in addition to any liabilities which the
Company may otherwise have.
(b) Each Selling Stockholder agrees to defend, indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any breach of any
representation, warranty, agreement or covenant of such Selling Stockholder
contained in Section 1.II, or any untrue statement or alleged untrue
statement of any material fact concerning such Selling Stockholder
contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto or arise out of or are
based upon the omission or alleged omission to state therein a material
fact concerning such Selling Stockholder required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading if made regarding such Selling
Stockholder or in reliance upon information supplied to the Company by such
Selling Stockholder; and agrees to reimburse, subject to subsection (d),
each Underwriter for any legal or other expenses reasonably incurred by it
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Selling Stockholder shall
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, such
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Preliminary Prospectus or the Prospectus, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished with respect to any Underwriter by such Underwriter expressly for
use in the Registration Statement, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, provided that such
written information or omissions only pertain to disclosures in the
Registration Statement, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto directly relating to the transactions
effected by the Underwriters in connection with this offering, and provided
further that the foregoing indemnity with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter) if such untrue
statement or omission or alleged untrue statement or omission made in any
Preliminary Prospectus is eliminated or remedied in the Prospectus and a
copy of the Prospectus has not been furnished to the person asserting any
such loss, claim, damage or liability at or prior to the written
confirmation of the sale of such Shares to such person.
The indemnity agreement in this Section 7(b) shall extend upon the
same terms and conditions to, and shall inure to the benefit of each
person, if any, who controls any Underwriter within the meaning of the Act.
This indemnity agreement shall be in addition to any liabilities which the
Selling Stockholders may otherwise have.
(c) Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless the Company and each Selling Stockholder to the same extent
as the foregoing indemnity from the Company to the Underwriters but only
with respect to statements or omissions, if any, made in the Registration
Statement, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto made in reliance upon, and in strict conformity with,
written information furnished with respect to any Underwriter by such
Underwriter expressly for use in the Registration Statement, any
Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, provided that such written information or omissions only pertain
to disclosures in the Registration Statement, any Preliminary Prospectus or
the Prospectus or any amendment or supplement thereto directly relating to
the transactions effected by the Underwriters in connection with this
offering.
The indemnity agreement in this Section 7(c) shall extend upon the
same terms and conditions to, and shall inure to the benefit of, each
officer and director of the Company who has signed the Registration
Statement, each Selling Stockholder and each person, if any, who controls
the Company or such Selling Stockholder within the meaning of the Act. This
indemnity agreement shall be in addition to any liabilities which each
Underwriter may otherwise have. For purposes of this Agreement, the Company
and each Selling Stockholder acknowledge that the statements with respect
to the public offering of the Shares set forth under the heading
"UNDERWRITING" and the stabilization legend in the Prospectus and the last
paragraph on the outside front cover page of the Prospectus have been
furnished by the Underwriters expressly for use
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therein and constitute the only information furnished in writing by or on
behalf of the Underwriters for inclusion in the Prospectus.
(d) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 7, notify the indemnifying party in writing of the
commencement thereof but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party under this Section 7 (except to the extent that the omissions of such
notice causes actual prejudice to the indemnifying party), or otherwise
than under this Section 7. In case any such action is brought against any
indemnified party, and it notified the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the indemnified
parties and the indemnifying party and counsel for the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel reasonably
satisfactory to the indemnifying party or parties to assume such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from
the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified
party under this Section 7 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel approved by the indemnifying
party, representing all the indemnified parties under Section 7(a), 7(b) or
7(c) hereof who are parties to such action), (ii) the indemnifying party
shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after
notice of commencement of the action, or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. In no event shall any indemnifying party
be liable in respect of any amounts paid in settlement of any action unless
the indemnifying party shall have approved the terms of such settlement;
provided however that such consent shall not be unreasonably withheld.
(e) In order to provide for just and equitable contribution in any action
in which a claim for indemnification is made pursuant to this Section 7 but
it is judicially determined (by the entry of a final judgment or decree by
a court of competent jurisdiction and the expiration of time to appeal or
the denial of the last right of appeal)
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that such indemnification may not be enforced in such case notwithstanding
the fact that this Section 7 provides for indemnification in such case, all
the parties hereto shall contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after contribution
from others) in such proportion so that, except as set forth in Section
7(f) hereof, the Underwriters are responsible pro rata for the portion
represented by the percentage that the underwriting discount bears to the
public offering price, and the Company and each Selling Stockholder are
responsible for the remaining portion, provided, however, that (i) no
Underwriter shall be required to contribute any amount in excess of the
underwriting discount applicable to the Shares purchased by such
Underwriter, and (ii) no person guilty of a fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to a
contribution from any person who is not guilty of such fraudulent
misrepresentation.
(f) The liability of each Selling Stockholder under the representations
and warranties contained in Section 1 hereof and under the indemnity
agreements contained in the provisions of this Section 7 shall be limited
in the aggregate to an amount equal to the public offering price of the
Shares sold by such Selling Stockholder to the Underwriters minus the
amount of the underwriting discount paid thereon to the Underwriters by the
Selling Stockholder. The Company and the Selling Stockholders may agree, as
between themselves and without limiting the rights of the Underwriters
under this Agreement, as to the respective amounts of such liability for
which they each shall be responsible.
(g) The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof including without limitation
the provisions of this Section 7, and are fully informed regarding such
provisions. They further acknowledge that the provisions of this Section 7
fairly allocate the risks in light of the ability of the parties to
investigate the Company and its business in order to assure that adequate
disclosure is made in the Registration Statement and Prospectus as required
by the Act and the Exchange Act. The parties are advised that federal or
state public policy, as interpreted by the courts in certain jurisdictions,
may be contrary to certain of the provisions of this Section 7, and the
parties hereto hereby expressly waive and relinquish any right or ability
to assert such public policy as a defense to a claim under this Section 7
and further agree not to attempt to assert any such defense.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement
or contained in certificates of officers of the Company submitted pursuant
thereto shall be deemed to be representations, warranties and agreements at the
Closing Date and the Option Closing Date, as the case may be, and such
representations, warranties and agreements, and the indemnity and
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contribution agreements contained in Section 7 hereof, shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of any Underwriter, the Company, the Selling Stockholders or any
controlling person, and shall survive termination of this Agreement or the
issuance or sale and delivery of the Shares to the Underwriters.
9. EFFECTIVE DATE.
This Agreement shall become effective at 9:30 a.m., Eastern Time, on the
date hereof, or at such earlier time after the Registration Statement becomes
effective as the Representatives, in their sole discretion, shall release the
Shares for the sale to the public, provided, however that the provisions of
Sections 5, 7 and 9 of this Agreement shall at all times be effective. For
purposes of this Section 9, the Shares to be purchased hereunder shall be deemed
to have been so released upon the earlier of dispatch by the Representatives of
telegrams to securities dealers releasing such Shares for offering or the
release by the Representatives for publication of the first newspaper
advertisement that is subsequently published relating to the Shares.
10. TERMINATION.
(a) Subject to subsection (d) of this Section 10, the Company may at
any time before this Agreement becomes effective in accordance with
Section 9, terminate this Agreement.
(b) Subject to subsection (d) of this Section 10, the Representatives
shall have the right to terminate this Agreement, (i) if any
calamitous domestic or international event or act or occurrence has
materially disrupted, or in the Representatives' opinion will in the
immediate future materially disrupt, general securities markets in the
United States; or (ii) if trading on the New York Stock Exchange, the
NASDAQ-NM or in the over-the-counter market shall have been suspended,
or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required on
the over-the-counter market by the NASD or by order of the Commission
or any other government authority having jurisdiction; or (iii) if the
United States shall have become involved in a war or major
hostilities; or (iv) if a banking moratorium has been declared by the
State of New York, the Commonwealth of Massachusetts or any federal
authority; or (v) if a moratorium in foreign exchange trading has been
declared; or (vi) if the Company shall have sustained a loss material
or substantial to the Company by fire, flood, accident, hurricane,
earthquake, theft, sabotage or other calamity or malicious act that,
whether or not such loss shall have been insured, will, in the
Representatives' reasonable opinion, make it inadvisable to proceed
with the delivery of the Shares; or (vii) if there shall have been a
Material Adverse Effect.
(c) If any party hereto elects to prevent this Agreement from
becoming effective or to terminate this Agreement as provided in this
Section 10, such party
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shall notify, on the same day as such election is made, the other
parties hereto in accordance with the provisions of Section 13 hereof.
(d) Notwithstanding any contrary provision contained in this
Agreement, any election hereunder or any termination of this Agreement
(including, without limitation, pursuant to Sections 11 and 12
hereof), and whether or not this Agreement is otherwise carried out,
the provisions of Sections 5, 7 and 9 shall not be in any way affected
by such election or termination or failure to carry out the terms of
this Agreement or any part thereof.
11. SUBSTITUTION OF THE UNDERWRITERS.
If one or more of the Underwriters shall fail (otherwise than for a reason
sufficient to justify the termination of this Agreement under the provisions of
Section 6, Section 10 or Section 12 hereof) to purchase the Shares that it or
they are obligated to purchase on such date under this Agreement (the "Defaulted
Securities"), the Representatives shall use their best efforts within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24 hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
total number of Firm Shares to be purchased on such date, the
non-defaulting Underwriters shall be obligated to purchase the full
amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the total
number of Firm Shares and arrangements satisfactory to the
Representatives for the purchase of the Defaulted Securities are not
made within 36 hours, this Agreement shall terminate without liability
on the part of any non-defaulting Underwriters. The Company or any
Selling Stockholder may assist the Representatives in making such
arrangements by procuring another party satisfactory to the
Representatives to purchase the Defaulted Securities on the terms set
forth herein.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default by such Underwriter under
this Agreement.
In the event of any such default that does not result in a termination of
this Agreement, the Representatives shall have the right to postpone the Closing
Date for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements.
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12. DEFAULT BY THE COMPANY OR THE SELLING STOCKHOLDERS.
If the Company or either of the Selling Stockholders, as applicable, shall
fail at the Closing Date or the Option Closing Date, as applicable, to sell and
deliver the number of Shares that it is obligated to sell hereunder on such
date, then this Agreement shall terminate (or, if such default shall occur with
respect to any Option Shares to be purchased on the Option Closing Date, the
Underwriters may at the Representatives' option, by notice from the
Representatives to the Company, terminate the Underwriters' several obligations
to purchase Shares from the Company on such date) without any liability on the
part of any non-defaulting party other than pursuant to Section 5 and Section 7
hereof. No action taken pursuant to this Section shall relieve the Company or
the Selling Stockholders from liability, if any, in respect of such default.
13. NOTICES.
All notices and communications hereunder may be mailed or transmitted by
any standard form of telecommunication and, except as herein otherwise
specifically provided, shall be in writing and shall be deemed to have been duly
given when delivered to a notice party hereto at the address specified herein or
at the address subsequently communicated in writing to the notice parties.
Notices to the Underwriters shall be directed to the Representatives c/o Xxxxxx
Xxxxxxx Incorporated, Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
Xxxxxx Xxxxxx, Vice President, with a copy to Xxxx X. Xxxxxx, Esq., c/o Stroock
& Stroock & Xxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. Notices
to the Company shall be directed to Spire Corporation, Xxx Xxxxxxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Chairman, with a copy to Xxxxxx
Xxxxxxxx, Esq., c/x Xxxxxxxxx & Manello, P.C., 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000. Notices to the Trust shall be directed to The Xxxxx X.
Xxxxxx Family Trust, Attention: Xxxxx X. Xxxxxx, Trustee, with a copy to Xxxxxxx
X. Xxxxxxxx. Notices to the Plan shall be directed to The Spire 401(k) Profit
Sharing Plan, c/o Spire Corporation, Xxx Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx
00000, Attention: Trustees, with a copy to Xxxxxxx X. Xxxxxxxx. In each case a
notice party may change its address for notice hereunder by a written
communication to the other notice parties.
14. PARTIES.
This Agreement shall inure solely to the benefit of and shall be binding
upon, the Underwriters, the Selling Stockholders, the Company and the
controlling persons, directors and officers referred to in Section 7 hereof, and
their respective successors, legal representatives and assigns, and no other
person shall have or be construed to have any legal or equitable right, remedy
or claim under or in respect of or by virtue of this Agreement or any provisions
herein contained. No purchaser of Shares from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
15. CONSTRUCTION.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
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MASSACHUSETTS WITHOUT GIVING EFFECT TO THE CHOICE OF LAW OR CONFLICT OF LAWS
PRINCIPLES.
16. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, and all of which taken together shall be
deemed to be one and the same instrument.
17. ENTIRE AGREEMENT.
This Agreement and the Schedules hereto contain the entire agreement
between the parties hereto in connection with the subject matter hereof and
supersede all prior agreements, written or oral, with respect to such subject
matter.
18. AMENDMENT.
This Agreement and the Schedules hereto may not be amended, modified or
altered without the written agreement of the Company, the Selling Stockholders
and the Representatives. If the foregoing correctly sets forth the understanding
between the Underwriters and the
[THIS SPACE INTENTIONALLY LEFT BLANK]
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Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement among us.
Very truly yours,
SPIRE CORPORATION
By:
--------------------------------------
Name:
Title: Chairman
SELLING STOCKHOLDERS LISTED ON
SCHEDULE B HERETO
THE XXXXX X. XXXXXX FAMILY TRUST
By:
--------------------------------------
Xxxxx X. Xxxxxx, as Trustee and
not Individually
THE SPIRE CORPORATION 401(k) PROFIT
SHARING PLAN
By:
--------------------------------------
Xxxxx X. Xxxxxx, as Trustee and
not Individually
By:
--------------------------------------
Xxxxxxx X. Xxxxxxxx, as Trustee and
not Individually
CONFIRMED AND ACCEPTED AS OF THE DATE
FIRST ABOVE WRITTEN
XXXXXX XXXXXXX INCORPORATED,
FIRST ALBANY CORPORATION
ADVEST, INC.
By: XXXXXX XXXXXXX INCORPORATED
By:
---------------------------------------
Title:
For themselves and on behalf of and as the
Representatives of the other Underwriters
named in Schedule A hereto.
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SCHEDULE A
----------
NAME NUMBER OF FIRM SHARES
---- ---------------------
Xxxxxx Xxxxxxx Incorporated
First Albany Corporation
Advest, Inc.
---------
Total 1,500,000
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SCHEDULE B
----------
NUMBER OF NUMBER OF
NAME FIRM SHARES OPTION SHARES
---- ----------- -------------
SELLING STOCKHOLDERS
The Xxxxx X. Xxxxxx Family Trust 0
------
The Spire Corporation 401(k)
Profit Sharing Plan 0
------
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SCHEDULE C
----------
NAME
----
Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx X. XxXxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxx
A. Xxxx Xxxx
Xxx Xxxxxxxx
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
The Xxxxx X. Xxxxxx Family Trust
The Spire Corporation 401(k) Profit Sharing Plan
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EXHIBIT 1
---------
[ERISA PLANS]
46
