Exhibit 1.1
1,000,000 Units
PEPC WORLDWIDE, N.V.
UNDERWRITING AGREEMENT
___________ ____, 2002
NOBLE INTERNATIONAL INVESTMENTS, INC.
As Representatives of the Underwriters
c/o Noble International Investments, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Ladies and Gentlemen:
PEPC Worldwide, N.V., a Dutch foreign corporation (the "Company"), hereby
confirms its agreement (the "Agreement") with the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you have been duly authorized
to act as Representatives (in such capacity, the "Representatives"), as set
forth below. If you are the only Underwriter, all references herein to the
Representatives shall be deemed to be to the Underwriters. Capitalized terms
used in this Agreement without definition have the meanings specified in the
Prospectus (as hereinafter defined).
1. Securities.
(a) Subject to the terms and conditions herein contained, the Company
proposes to issue and sell to the several Underwriters, on a firm commitment
basis, an aggregate of 1,000,000 units (each a "Unit"), each Unit consisting of
(i) two ordinary shares ("Shares"), par value E0.01 per share, of the Company
(the "Common Stock"); (ii) one redeemable common stock purchase warrant of the
Company, to purchase one ordinary share ("Warrant") at an exercise price of
$10.00 per ordinary share. The 1,000,000 Units, Shares and Warrants (together,
referred to as the "Firm Securities"). The Company also proposes to issue and
sell to the several Underwriters not more than 150,000 additional Units if
requested by the Representatives as provided in Section 3 of this Agreement. Any
and all Units to be purchased by the Underwriters pursuant to such option are
referred to herein as the "Option Securities," and the Firm Securities and any
Option Securities are collectively referred to herein as the "Securities."
(b) Additionally, subject to the approval of the Securities and
Exchange Commission (the "SEC"), the Company has granted a right to the
Representatives or its nominee to receive on the Firm Closing Date (as defined
in Section 2(a) below) a unit purchase option (the "Unit Purchase Option"1) to
purchase up to 100,000 Units, upon exercise of the Unit Purchase Option in
accordance with the terms of such option.
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each of the several Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission (the
`Commission") a registration statement on Form F-1 (SEC File No. ________)
including any related preliminary prospectus (each a "Preliminary Prospectus"),
for the registration of the offer and sale of Securities under the Securities
Act of 1933, as amended (the "Act"), which registration statement and any
amendment or amendments have been prepared by the Company in conformity with the
requirements of the Act and the rules and regulations of the Commission under
the Act. The Registration Statement with respect to the Securities, including
any Preliminary Prospectus, copies of which have heretofore been delivered to
the Representatives, has been prepared by the Company in conformity with the
requirements of the Act and the rules and regulations thereunder. Following
execution of this Agreement, the Company will promptly file (i) if the
Registration Statement has been declared effective by the Commission, (A) a Term
Sheet (as defined in the Rules and Regulations (as hereinafter defined))
pursuant to Rule 434 under the Act or (B) a Prospectus under Rules 430A and/or
424(b) under the Act, in either case in form satisfactory to the Underwriters or
(ii) in the event the registration statement has not been declared effective, a
further amendment to said registration statement in the form heretofore
delivered to the Underwriter and will not, before the registration statement
becomes effective, file any other amendment thereto unless the Underwriter shall
have consented thereto after having been furnished with a copy thereof. Except
as the context may otherwise require, such registration statement, as amended,
on file with the Commission at the time the registration statement becomes
effective (including the prospectus, financial statements, schedules, exhibits
and all other documents filed as a part thereof and all information deemed to be
a part thereof as of such time pursuant to paragraph (b) of Rule 430A of the
Rules and Regulations) (as hereinafter defined), is hereinafter called the
"Registration Statement" and the form of prospectus in the form first filed with
the Commission pursuant to Rule 424(b) of the Rules and Regulations, is
hereinafter called the "Prospectus." For purposes hereof, "Rules and
Regulations" mean 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.
(b) Neither the Commission nor any state regulatory authority has
issued or, to the Company's knowledge, threatened to issue any order preventing
or suspending use of any Preliminary Prospectus, the Registration Statement or
Prospectus or any part thereof and no proceedings for a stop order have been
instituted or are pending, or to the Company's knowledge, threatened. When any
Preliminary Prospectus was filed with the Commission it (i) contained all
statements required to be stated therein in accordance with, and complied in all
material respects with the requirements of, the Act and the Rules and
Regulations and (ii) did not
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1 The terms of the Unit Purchase Option shall be as set forth in the form of
Unit Purchase Option attached hereto as Exhibit C.
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include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. When the Registration
Statement or any amendment thereto was or is declared effective and at all times
subsequent thereto up to and including the Closing Dates (as defined in Section
3(b) hereof), it (i) contained or will contain all statements required to be
stated therein in accordance with, and complied or will comply in all material
respects with the requirements of, the Act and the Rules and Regulations and
(ii) did not or will not include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading. When the Prospectus or any Term Sheet that is a part thereof or any
amendment or supplement to the Prospectus is filed with the Commission (or, if
the Prospectus or part thereof or such amendment or supplement is not required
to be so filed, when the Registration Statement or the amendment thereto
containing such amendment or supplement to the Prospectus was or is declared
effective) and on the Firm Closing Date and any Option Closing Date (both as
hereinafter defined), the Prospectus, as amended or supplemented at any such
time, (i) contained or will contain all statements required to be stated therein
in accordance with, and complied or will comply in all material respects with
the requirements of, the Act and the Rules and Regulations and (ii) did not or
will not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The foregoing
provisions of this paragraph (b) do not apply to statements or omissions made in
any Preliminary Prospectus, the Registration Statement or any amendment thereto
or the Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein.
(c) There is no franchise, lease, contract, agreement or other
document required to be described in the Registration Statement or Prospectus or
to be filed as an exhibit to the Registration Statement which is not described
or filed therein as required and the exhibits that have been filed are complete
and correct copies of the documents of which they purport to be copies; and all
descriptions of any such franchises, leases, contracts, agreements or other
documents contained in the Registration Statement are accurate and complete
descriptions of such documents in all material respects and fairly present the
information required to be shown with respect thereto by Form F-1 under the Act.
(d) (d) The Company and each of its subsidiaries have been duly
organized and are validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation and are duly qualified
to transact business as foreign corporations and are in good standing under the
laws of all other jurisdictions where the ownership or leasing of their
respective properties or the conduct of their respective businesses requires
such qualification, except where the failure to be so qualified does not amount
to a material liability or disability to the Company and its subsidiaries, taken
as a whole.
(e) The Company and each of its subsidiaries (i) have full power
(corporate and other) to own or lease their respective properties and conduct
their respective businesses; (ii) are in compliance with, and conduct their
respective businesses as described in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) in conformity with, all applicable federal, state, local
and foreign laws,
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rules and regulations of any court or governmental agency or body except
non-compliance which could reasonably be executed not to result in a Material
Adverse Effect (as defined in Section 2(m) below); (iii) have no knowledge,
other than as set forth in the Registration Statement and the Prospectus, of any
prospective change in any of such federal, state, local or foreign laws, rules
or regulations which, when made effective, would have a Material Adverse Effect;
and (iv) the Company has full power (corporate and other) to enter into this
Agreement, the Warrant Agreement and the Unit Purchase Option, to perform its
obligations hereunder and thereunder (including to issue, sell and deliver the
Securities and the securities in the Unit Purchase Option), and carry out all
the terms and provisions hereof to be carried out by it. The Company and each of
its subsidiaries are in possession of and operating in compliance in all
material respects with all franchises, grants, registrations, qualifications,
authorizations, licenses, permits, easements, consents, certificates and orders
required for the conduct of their respective businesses as now being conducted
and as described in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), or for
the ownership, leasing and operation of their respective properties, all of
which are valid and in full force and effect and no such franchise, grant,
registration, consent, certificate or order contains a materially burdensome
restriction not adequately disclosed in the Registration Statement or the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(f) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus). All of the Company's
outstanding shares of capital stock have been duly authorized and validly issued
and are fully paid and nonassessable, have been issued in compliance with all
federal and state securities laws, and were not issued in violation of or
subject to any preemptive right or other rights to subscribe for or purchase
securities. The authorized capital stock of the Company consists of _________
ordinary shares of Common Stock of which ________ shares are issued and
outstanding, as of the date hereof, and, except as otherwise set forth in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). The Company also has granted options to purchase ______
shares of Common Stock, all of which options remain outstanding, but
unexercised, as of the date hereof.
(g) The Firm Securities and the Option Securities to be issued and
sold by the Company to the Underwriters hereunder and the securities underlying
the Unit Purchase Option have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein, will be duly and
validly issued, fully paid and nonassessable, free of any preemptive or similar
rights and will conform to the description thereof in the Prospectus, and good
and marketable title to the Securities and the securities contained in the Unit
Purchase Option will pass to the Underwriters on the Closing Dates free and
clear of any lien, encumbrance, security interest, claim or restriction
whatsoever, except as may be placed thereon by the Underwriters. No holder of
securities of the Company has any right which has not been fully exercised or
waived to require the Company to register the offer or sale of any securities
owned by such holder under the Act in the public offering contemplated by this
Agreement. All corporate action required to be taken for the authorization,
issuance and sale of the Securities, the Unit Purchase Option and the securities
contained therein have been duly and validly taken; and the certificates, if
any, representing the Securities and the Unit Purchase Option securities will be
in due and proper form.
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(h) The capital stock of the Company, the Securities, the Unit
Purchase Option and the securities contained therein conform to the description
thereof contained in the Registration Statement and Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
(i) Except as disclosed in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), there are no
outstanding (A) securities or obligations of the Company or any of its
subsidiaries convertible into or exchangeable for any capital stock of the
Company or any such subsidiary, (B) warrants, rights or options to subscribe for
or purchase from the Company or any such subsidiary any such capital stock or
any such convertible or exchangeable securities or obligations, or (C)
obligations of the Company or any such subsidiary to issue any shares of capital
stock, any such convertible or exchangeable securities or obligations, or any
such warrants, rights or options.
(j) The audited consolidated financial statements and schedules of
the Company and its consolidated subsidiaries included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) fairly present the financial position of the
Company and its consolidated subsidiaries and the results of operations and
changes in financial condition as of the dates and periods therein specified.
Such financial statements and schedules have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved (except as otherwise noted therein). The summary consolidated
financial data and selected financial data set forth under the captions "Summary
Consolidated Financial Data" and "Selected Financial Information," respectively,
in the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present, on the basis stated in the Prospectus
(or such Preliminary Prospectus), the information included therein and have been
prepared in conformity with the requirements of the Acts and the Rules and
Regulations.
(k) KPMG LLP, who have certified certain financial statements of the
Company and its consolidated subsidiaries and delivered its report with respect
to the audited consolidated financial statements and schedules included in the
Registration Statement and the Prospectus, are independent public accountants as
required by the Act and the Act Rules and Regulations.
(l) The execution and delivery of this Agreement have been duly
authorized by the Company and this Agreement has been duly executed and
delivered by the Company.
(m) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries or any of their affiliated persons, as
defined under the Act, is a party or of which any property of the Company or any
of its subsidiaries or any of their affiliated persons is subject, which, if
determined adversely to the Company or any of such subsidiaries or any of their
affiliated persons, might individually or in the aggregate (i) prevent or
materially adversely affect the transactions contemplated by this Agreement,
(ii) suspend the effectiveness of the Registration Statement, (iii) prevent or
suspend the use of the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) in any jurisdiction or (iv) result in a
Material Adverse Effect; and to the Company's knowledge no such proceedings are
threatened or contemplated against the Company or any of its subsidiaries or any
of their
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affiliated persons by governmental authorities or others. Except as disclosed in
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), the Company is not a party nor subject to the
provisions of any material injunction, judgment, decree or order of any court,
regulatory body or other governmental agency or body. "Material Adverse Effect"
means, when used in connection with the Company and its subsidiaries, any
development, change or effect that could reasonably be expected to have a
material adverse effect on the condition (financial or otherwise), properties,
business, management, prospects, net worth or results of operations of the
Company and its subsidiaries taken as a whole.
(n) Each of this Agreement and the Unit Purchase Option Agreement and
the Warrant Agreement constitutes a legally 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 indemnity
or contribution may be limited by applicable law. The issuance, offering and
sale of the Securities to the Underwriters by the Company pursuant to this
Agreement, the Warrant Agreement and the Unit Purchase Option, the compliance by
the Company with the other provisions of this Agreement and the consummation of
the other transactions herein (and therein) contemplated do not (i) require the
consent, approval, authorization, registration or qualification of or with any
court, regulating body, governmental authority or a jury, except such as have
been obtained, such as may be required by the NASD (as defined in Section 6(a))
as required under state securities or blue sky laws under the Act, (ii) violate
its charter, by-laws or other organizational documents or constitute a default
in the performance of any note or other evidence of indebtedness or any license
indenture, mortgage, deed of trust, note agreement or other contract, lease or
other instrument to which it is a party or by which it is bound, or to which any
of its property or assets is subject, no condition or event shall have occurred
which, with notice or a lapse of time or both, would constitute a default under
such instruments or agreements or result in the imposition of any penalty or
acceleration of any indebtedness, or (iii) violate any statute, judgment,
decree, order, rule or regulation applicable to the Company or its subsidiaries
of any arbitrator, court, regulatory body or administrative agency or other
governmental agency or body (including, without limitation, those having
jurisdiction over environmental or similar matters), domestic or foreign, having
jurisdiction over the Company or its subsidiaries or any of their activities or
properties.
(o) The Company intends to direct the investment of the proceeds of
the Offering as defined in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(p) There is no action, suit, proceeding, inquiry, investigation,
litigation or governmental proceeding (including, without limitation, those
having jurisdiction over environmental or similar matters), domestic or foreign,
pending or, to the knowledge of the Company, threatened against (or
circumstances that may give rise to the same), or involving the properties or
business of the Company or its subsidiaries which: (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; or
(ii) is required to be disclosed in
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the Registration Statement which is not so disclosed (and such proceedings as
are summarized in the Registration Statements are accurately summarized in all
respects).
(q) The Company and its subsidiaries have performed all material
obligations required to be performed by them under all contracts required by
Form F-1 under the Act to be filed as exhibits to the Registration Statement,
and neither the Company, any of its subsidiaries nor any other party to such
contract is in default under or in breach of any such obligations except such as
would not result in a Material Adverse Effect. Neither the Company nor any of
the Subsidiaries has received any notice of such default or breach. All executed
agreements or copies of executed agreements (whether electronically scanned or
otherwise) filed as exhibits to the Registration Statement to which the Company
is a party or by which the Company may be bound or to which any of its assets,
properties or businesses may be subject have been duly and validly authorized,
executed and delivered by the Company, and constitute legally valid and binding
agreements of the Company, enforceable against it in accordance with their
respective terms except as limited by bankruptcy, insolvency and other
creditors' right.
(r) The Company has not, directly or indirectly, (i) taken any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) since the filing of the Registration Statement (A) sold, bid
for, purchased, or paid anyone any compensation for soliciting purchases of, the
Securities or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company (except as
provided in this Agreement).
(s) The Company has not distributed and, prior to the later of (i)
the Closing Dates and (ii) the completion of the distribution of the Securities,
will not distribute any offering material in connection with the offering and
sale of the Securities other than the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, or other materials, if any permitted by the Act.
(t) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus and except as
contemplated by the Registration Statement and the Prospectus), (i) neither the
Company nor any of its subsidiaries has incurred any material liabilities or
obligations, direct or contingent, or entered into any other transactions not in
the ordinary course of business, (ii) neither the Company nor any of its
subsidiaries has sustained any material loss or interference with their
respective businesses or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor dispute
or any legal or governmental proceeding, (iii) there has not been any material
adverse change or development involving a material prospective change in the
condition (financial or otherwise), properties, business, management, prospects,
net worth, capital stock, investment objectives, investment policies or results
of operations of the Company and its subsidiaries taken as a whole, or any
change in the capital stock, or material change in the short-term or long-term
debt, of the Company and its subsidiaries taken as a whole and (iv) there has
been no dividend or distribution of any kind declared, paid or made by the
Company or its subsidiaries on any class of their respective capital stock.
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(u) The Company and each of its subsidiaries have, and as of the
respective Closing Dates will have, good and marketable title [fee simple] to
all items of real property and good and marketable title to all personal
property owned, or proposed to be owned, by each of them, in each case free and
clear of any security interests, liens, encumbrances, equities, claims and other
defects, except such as do not materially and adversely affect the value of such
property and do not interfere with the use made or proposed to be made of such
property by the Company or such subsidiary, and any real property and buildings
held under lease by the Company or any such subsidiary are held, and will be
held as of the respective Closing Dates, under valid, subsisting and enforceable
leases, with such exceptions as are not material and do not interfere with the
use made or proposed to be made of such property and buildings by the Company or
such subsidiary, in each case except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(v) Neither the Company or any its subsidiaries is involved in any
labor dispute which would result in a Material Adverse Effect nor, to the
Company's knowledge, is any such dispute imminent or threatened. Neither the
Company nor any of its subsidiaries is aware that (i) any executive, key
employee or significant group of employees of the Company or any of its
subsidiaries plans to terminate employment with the Company or any of its
subsidiaries or (ii) any such executive or key employee is subject to any
noncompete, nondisclosure, confidentiality, employment, consulting or similar
agreement that would be violated by the present or proposed business activities
of the Company or its subsidiaries. Neither the Company nor any of its
subsidiaries has or expects to have any liability for any prohibited transaction
or funding deficiency or any complete or partial withdrawal liability with
respect to any pension, profit sharing or other plan which is subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), to which
the Company or any of its subsidiaries makes or ever has made a contribution and
in which any employee of the Company or any of its subsidiaries is or has ever
been a participant. With respect to such plans, the Company and each of its
subsidiaries are in compliance in all material respects with all applicable
provisions of ERISA, except as described in or contemplated by the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus).
(w) Except as discussed in the Registration Statement and Prospectus,
the Company and its subsidiaries own or possess and has the right to use free
and clear of all liens, charges, claims, encumbrances, pledges, security
interests, defects or other restrictions or equities of any kind whatsoever, all
patents, patent applications, trademarks, service marks, trade names, licenses,
copyrights and proprietary or other confidential information currently employed
by them in connection with their respective businesses. The Company's and its
subsidiaries' businesses as now conducted and as proposed to be conducted do not
and will not infringe or conflict with in any material respect any patents,
trademarks, service marks, tradenames, copyrights, trade secrets, licenses or
any other intellectual property or franchise right of any person. Except as
discussed in the Registration Statement and Prospectus, neither the Company nor
any such subsidiary has received any notice of infringement of or conflict with
asserted rights of any third party with respect to any of the foregoing which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Affect (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
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(x) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; neither the Company nor any such subsidiary has been refused any
insurance coverage sought or applied for; and neither the Company nor any such
subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Affect, except as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(y) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company or from transferring
any of such subsidiary's property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(z) The Company and its subsidiaries have filed all foreign, federal,
state and local tax returns that are required to be filed or have requested
extensions thereof (except in any case in which the failure so to file would not
have a Material Adverse Affect and have paid all taxes required to be paid by
them and any other assessment, fine or penalty levied against them, to the
extent that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good faith or
as described in or contemplated by the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus).
(aa) Neither the Company nor any of its subsidiaries is in violation
of any federal or state law or regulation relating to occupational safety and
health or to the storage, handling or transportation of hazardous or toxic
materials and the Company and its subsidiaries have received all permits,
licenses or other approvals required of them under applicable federal and state
occupational safety and health and environmental laws and regulations to conduct
their respective businesses, and the Company and each such subsidiary is in
compliance with all terms and conditions of any such permits, licenses or
approval, except any such violation of law or regulation, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals which would not,
singly or in the aggregate, have a Material Adverse Affect, except as described
in or contemplated by the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus).
(ab) Each certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters shall be deemed
to be a representation and warranty by the Company to each Underwriter as to the
matters covered thereby.
(ac) Except for the shares of capital stock of each of the
subsidiaries owned by the Company and such subsidiaries, neither the Company nor
any such subsidiary owns any shares of stock or any other equity securities of
any corporation or has any equity interest in any firm, partnership, association
or other entity, except as described in or contemplated by the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary Prospectus).
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(ad) There are no holders of securities of the Company, who, by reason
of the filing of the Registration Statement, have the right (and have not waived
such right) to request the Company to register under the Act, or to include in
the Registration Statement, securities held by them.
(ae) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(af) The Company has obtained the written agreement described in
Section 5(j) of this Agreement from each of its officers, directors and holders
of Securities listed on Schedule 7(h) hereto.
(ag) Other than as contemplated by this Agreement or as disclosed in
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), there is no broker, finder or other party that is
entitled to receive from the Company or its subsidiaries any brokerage or
finders' fee or other fee or commission as a result of any of the transactions
contemplated by this Agreement.
(ah) Neither the Company or any of its subsidiaries, nor any director,
officer, agent or employee acting on behalf of the Company or its subsidiaries
has (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity, (ii)
made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds, (iii) violated or is in
violation of any provision of any law or (iv) made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(ai) To the Company's knowledge, neither the Company or any of its
subsidiaries, nor any employee or agent of the Company or any of its
subsidiaries has made any payment of funds of the Company or any of its
subsidiaries or received or retained any funds in violation of any law, rule or
regulation, which payment, receipt or retention of funds is of a character
required to be disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(aj) Except as disclosed in writing to the Underwriters, no officer,
or director or stockholder of the Company has any affiliation or association
with any member of the NASD.
(ak) The Securities have been approved for quotation on the American
Stock Exchange, subject to official notice of issuance.
3. Purchase, Sale and Delivery of the Securities. (a) On the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms
10
and conditions herein set forth, the Company agrees to issue and sell to each of
the Underwriters, and each of the Underwriters, severally and not jointly,
agrees to purchase from the Company, at a purchase price of $________ per Unit,
which represents the public offering price set forth in the Prospectus less an
underwriting discount of nine percent (9%), the number of Firm Securities set
forth opposite the name of such Underwriter in Schedule I hereto. One or more
certificates in definitive form for the Firm Securities that the several
Underwriters have agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Representatives
request upon notice to the Company at least 48 hours prior to the Firm Closing
Date, shall be delivered by or on behalf of the Company to the Representatives
for the respective accounts of the Underwriters, against payment by or on behalf
of the Underwriters of the purchase price therefor by wire transfer in same-day
funds (the "Wired Funds") to the account of the Company. Such delivery of and
payment for the Firm Securities shall be made at the offices of
______________________________________________________ at 9:30 A.M., New York
time, on __________, 2002, or at such other place, time or date as the
Representatives and the Company may agree upon or as the Representatives may
determine pursuant to Section 9 hereof, all in accordance with Rule 15c6-1 of
the Exchange Act (as defined in Section 8 herein), such time and date of
delivery against payment being herein referred to as the "Firm Closing Date."
The Company will make such certificate or certificates for the Firm Securities
available for checking and packaging by the Representatives at the offices in
New York, New York of the Company's transfer agent or registrar or of Noble
International Investments, Inc. ("Noble") at least 24 hours prior to the Firm
Closing Date.
(b) For the purpose of covering any over-allotments in connection
with the distribution and sale of the Firm Securities as contemplated by the
Prospectus, the Company hereby grants to the several Underwriters an option to
purchase, severally and not jointly, the Option Securities (the "Over-Allotment
Option"). The purchase price to be paid for any Option Securities shall be the
same price per Unit as the price per Unit for the Firm Securities set forth
above in paragraph (a) of this Section 3. The option granted hereby may be
exercised as to all or any part of the Option Securities from time to time
within forty-five days after the date of the Prospectus (or, if such 45th day
shall be a Saturday or Sunday or a holiday, on the next business day thereafter
when the American Stock Exchange (as defined in Section 5(m) herein) is open for
trading). The Underwriters shall not be under any obligation to purchase any of
the Option Securities prior to the exercise of such option if such exercise
occurs. The Representatives may from time to time exercise the option granted
hereby by giving notice in writing or by telephone (confirmed in writing) to the
Company setting forth the aggregate number of Option Securities as to which the
several Underwriters are then exercising the option and the date and time for
delivery of and payment for such Option Securities. Any such date of delivery
shall be determined by the Representatives but shall not be earlier than two
business days or later than five business days after such exercise of the option
and, in any event, shall not be earlier than the Firm Closing Date. The time and
date set forth in such notice, or such other time on such other date as the
Representatives and Company may agree upon or as the Representatives may
determine pursuant to Section 9 hereof, is herein called the "Option Closing
Date" with respect to such Option Securities, and together with the Firm Closing
Date, the "Closing Dates." Upon exercise of the option as provided herein, the
Company shall become obligated to sell to each of the several Underwriters, and,
subject to the terms and conditions herein set forth, each of the Underwriters,
severally and not jointly, shall become obligated to purchase from the Company,
the same percentage of the total number of the Option Securities as to which the
several
11
Underwriters are then exercising the option as such Underwriter is obligated to
purchase of the aggregate number of Firm Securities, as adjusted by the
Representatives in such manner as it deems advisable to avoid fractional shares.
If the option is exercised as to all or any portion of the Option Securities,
one or more certificates in definitive form for such Option Securities, and
payment therefor, shall be delivered on the related Option Closing Date in the
manner, and upon the terms and conditions, set forth in paragraph (a) of this
Section 3, except that reference therein to the Firm Securities and the Firm
Closing Date shall be deemed, for purposes of this paragraph (b), to refer to
such Option Securities and Option Closing Date, respectively.
(c) On the Firm Closing Date, the Company shall issue and sell to the
Underwriters, the Unit Purchase Option at a purchase price of $[100.00] which
Unit Purchase Option shall entitle the holders thereof to purchase an aggregate
of 100,000 Units. The Unit Purchase Option shall not be exercisable for one year
after the Effective Date and will expire four years after such date at an
initial exercise price equal to one hundred twenty percent (120%) of the initial
public offering price of the Units. The Unit Purchase Option Agreement and form
of Units Purchase Option Certificate shall be substantially in the form filed as
an Exhibit to the Registration Statement. The Securities to be received by the
Underwriters upon exercise of the Unit Purchase Option shall be substantially
the same as delivered to the public in the Offering. Payment for the Unit
Purchase Option shall be made on the Firm Closing Date. The Company has reserved
and shall continue to reserve a sufficient number of Units, Shares and Warrants
for issuance upon exercise of the Unit Purchase Option.
(d) The Company hereby acknowledges that the wire transfer by or on
behalf of the Underwriters of the purchase price for any Securities does not
constitute closing of a purchase and sale of the Securities. Only execution and
delivery of a receipt for Securities by the Underwriters indicates completion of
the closing of a purchase of the Securities from the Company. Furthermore, in
the event that the Underwriters wire funds to the Company prior to the
completion of the closing of a purchase of Securities, the Company hereby
acknowledges that until the Underwriters execute and deliver a receipt for the
Securities, by facsimile transmission or otherwise, the Company will not be
entitled to the Wired Funds and shall return the Wired Funds to the Underwriters
as soon as practicable (by wire transfer of same-day funds) upon demand. In the
event that the closing of a purchase of Securities is not completed and the
Wired Funds are not returned by the Company to the Underwriters on the same day
the Wired Funds were received by the Company, the Company agrees to pay to the
Underwriters in respect of each day the Wired Funds are not returned by it, in
same-day funds, interest on the amount of such Wired Funds in an amount
representing the Underwriters' cost of financing as reasonably determined by
Noble
(e) It is understood that you, individually and not as the
Representatives, may (but shall not be obligated to) make payment on behalf of
any Underwriter or Underwriters for any of the Securities to be purchased by
such Underwriter or Underwriters. No such payment shall relieve such Underwriter
or Underwriters from any of its or their obligations hereunder.
4. Offering by the Underwriters. As soon after the Registration Statement
becomes effective and as the Underwriters deem advisable, but in no event more
than three (3) business days after such Effective Date, the Underwriters shall
make a public offering of the Securities (other than to residents of or in any
jurisdiction in which qualification of the Securities is
12
required and has not become effective) at the price and upon the other terms set
forth in the Prospectus and otherwise in compliance with the Rules and
Regulations. The Underwriters may allow such concessions and discounts upon
sales to other dealers as set forth in the Prospectus.
5. Covenants of the Company. The Company covenants and agrees with each
of the Underwriters that:
(a) The Company will (i) if the Company and the Representatives have
determined not to proceed pursuant to Rule 430A, use its best efforts to cause
the Registration Statement to become effective, and (ii) if the Company and the
Representatives have determined to proceed pursuant to Rule 430A, use its best
efforts to comply with the provisions of and make all requisite filings with the
Commission pursuant to Rule 430A of the Act Rules and Regulations. During any
time when a Prospectus relating to the Securities is required to be delivered
under the Act, the Company (i) will comply with all requirements imposed upon it
by the Act and the Act Rules and Regulations to the extent necessary to permit
the continuance of sales of or dealings in the Securities in accordance with the
provisions hereof and of the Prospectus, as then amended or supplemented, and
(ii) will not file with the Commission the Prospectus, or the amendment referred
to in the second sentence of Section 2(a) hereof, any amendment or supplement to
such Prospectus, or any amendment to the Registration Statement of which the
Representatives previously have been advised and furnished with a copy for a
reasonable period of time prior to the proposed filing and as to which filing
the Representatives shall not have given their consent. The Company will prepare
and file with the Commission, in accordance with the Act Rules and Regulations,
promptly upon request by the Representatives or counsel for the Underwriters,
any amendments to the Registration Statement or amendments or supplements to the
Prospectus that may be necessary or advisable in connection with the
distribution of the Securities by the several Underwriters, and will use its
best efforts to cause any such amendment to the Registration Statement to be
declared effective by the Commission as promptly as possible. The Company will
advise the Representatives, promptly after receiving notice thereof, of the time
when the Registration Statement or any amendment thereto has been filed or
declared effective or the Prospectus or any amendment or supplement thereto has
been filed and will provide evidence satisfactory to the Representatives of each
such filing or effectiveness.
(b) The Company will advise the Representatives, promptly after
receiving notice or obtaining knowledge thereof, of (i) the issuance by the
Commission of any stop order suspending the effectiveness of the Original
Registration Statement or any amendment thereto or any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, (ii) the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, (iii) the institution,
threatening or contemplation of any proceeding for any such purpose or (iv) any
request made by the Commission for amending the Original Registration Statement,
for amending or supplementing the Prospectus or for additional information. The
Company will use its best efforts to prevent the issuance of any such stop order
and, if any such stop order is issued, to obtain the withdrawal thereof as
promptly as possible.
(c) The Company will arrange for the qualification of the Securities
for offering and sale under the securities or blue sky laws of such
jurisdictions as the Representatives may designate and will continue such
qualifications in effect for as long as may
13
be necessary to complete the distribution of the Securities, provided, however,
that in connection therewith the Company shall not be required to qualify as a
foreign corporation or to execute a general consent to service of process in any
jurisdiction.
(d) If, at any time prior to the later of (i) the final date when a
prospectus relating to the Securities is required to be delivered under the Act
or (ii) the Option Closing Date, any event occurs as a result of which the
Prospectus, as then amended or supplemented, would include any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or if for any other reason it is necessary at any time to
amend or supplement the Prospectus to comply with the Act or the Act Rules and
Regulations, the Company will promptly notify the Representatives thereof and,
subject to Section 5(a) hereof, will prepare and file with the Commission, at
the Company's expense, an amendment to the Registration Statement or an
amendment or supplement to the Prospectus that corrects such statement or
omission or effects such compliance.
(e) The Company will, without charge, provide (i) to the
Representatives and to counsel for the Underwriters a conformed copy of the
Registration Statement originally filed with respect to the Securities and each
amendment thereto (in each case including exhibits thereto), certified by the
Secretary or an Assistant Secretary of the Company to be true and complete
copies thereof as filed with the Commission by electronic transmission, (ii) to
each other Underwriter, a conformed copy of such Registration Statement and any
amendment thereto (in each case without exhibits thereto) and (iii) so long as a
prospectus relating to the Securities is required to be delivered under the Act,
as many copies of each Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto as the Representatives may reasonably request; without
limiting the application of clause (iii) of this sentence, the Company, not
later than (A) 6:00 P.M., New York City time, on the date of determination of
the public offering price, if such determination occurred at or prior to 10:00
A.M., New York City time, on such date or (B) 2:00 P.M., New York City time, on
the business day following the date of determination of the public offering
price, if such determination occurred after 10:00 A.M., New York City time, on
such date, will deliver to the Underwriters, without charge, as many copies of
the Prospectus and any amendment or supplement thereto as the Representatives
may reasonably request for purposes of confirming orders that are expected to
settle on the Firm Closing Date.
(f) The Company shall file the Prospectus (in form and substance
satisfactory to the Representative) or transmit the Prospectus by a means
reasonably calculated to result in filing with the Commission pursuant to Rule
424(b)(1) (or, if applicable and if consented to by the Underwriters pursuant to
Rule 424(b)(4)) not later than the Commission's close of business on the earlier
of (i) the second business day following the execution and delivery of this
Agreement and (ii) the fifth business day after the effective date of the
Registration Statement.
(g) The Company will make generally available to its securityholders
and to the Representatives not later than forty-five days after the end of the
period covered thereby, a consolidated earnings statement of the Company and its
subsidiaries that shall comply with Section 11(a) of the Act and Rule 158
thereunder and cover a period of at least 12 consecutive months beginning not
later than the first day of the Company's fiscal quarter next following the
effective date of this Agreement.
14
(h) The Company will apply the net proceeds from the sale of the
Securities as set forth under "Use of Proceeds" in the Prospectus.
(i) [The Company will not, directly or indirectly, without the prior
written consent of Noble, on behalf of the Underwriters, offer, sell,
hypothecate, offer to sell, contract to sell, pledge, grant any option to
purchase or otherwise sell or dispose (or announce any offer, sale, offer of
sale, contract of sale, pledge, grant of any option to purchase or other sale or
disposition) of any Securities for a period of ___ days after the date hereof,
except pursuant to this Agreement and except for issuances pursuant to the
exercise of employee stock options outstanding on the date hereof.]
(j) The Company will not, directly or indirectly, (i) take any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) (A) sell, bid for, purchase, or pay anyone any compensation
for soliciting purchases of, the Securities or (B) pay or agree to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company (except as provided in this Agreement).
(k) The Company will obtain the agreements described in Section 7(h)
hereof prior to the Firm Closing Date.
(l) For as long as the Company is required to file reports with the
Commission under Section 12 of the Exchange Act, the Company will maintain a
Transfer Agent and Warrant Agent, which may be the same entity, as well as a
Registrar (which may be the same entity as the Transfer and Warrant Agent) for
its Common Stock.
(m) The Company will supply the Representatives with copies of all
written correspondence to and from, and all documents issued to and by, the
Commission in connection with the registration of the Securities under the Act
and the listing of the Securities on the American Stock Exchange.
(n) The Company will furnish to its securityholders annual reports
containing financial statements audited by independent certified public
accountants and with quarterly summary financial information in reasonable
detail which may be unaudited. During the period of five years from the date
hereof, the Company will deliver to the Representatives and, upon request, to
each of the other Underwriters, as soon as they are filed with the SEC or
otherwise made available, copies of each annual report of the Company and each
other report furnished by the Company to its securityholders and will deliver to
the Representatives, (i) as soon as they are available, copies of any other
reports (financial or other) which the Company shall publish or otherwise make
available to its securityholders as such, and (ii) as soon as they are made
available, copies of any reports and financial statements furnished to or filed
with the Commission or any national securities exchange or the American Stock
Exchange. So long as the Company has active subsidiaries, such financial
statements will be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
securityholders generally. Separate financial statements shall be furnished for
subsidiaries whose accounts are not consolidated but which at the time are
significant subsidiaries as defined
15
in the Act Rules and Regulations. The Company shall timely file all such
reports, forms or other documents as may be required from time to time, under
the Act, the Exchange Act, and the Rules and Regulations, and all such reports,
forms and documents filed will comply as to form and substance with the
applicable requirements under the Act, the Exchange Act, and the Rules and
Regulations.
(o) Prior to the Closing Dates, the Company will furnish to the
Representatives, as soon as they have been prepared, copies of any unaudited
interim consolidated financial statements of the Company and its subsidiaries
for any periods subsequent to the periods covered by the financial statements
appearing in the Registration Statement and the Prospectus.
(p) Until the completion of the distribution of the Securities and
the termination of the Overallotment Option period, the Company will not without
the prior written consent of the Representatives issue any press release(s) or
other communications directly or indirectly and hold no press conference(s) with
respect to the Company or any of its subsidiaries, the financial condition,
results of operation, business, prospects, assets or liabilities of any of them,
or the offering of the Securities, without the prior written consent of the
Representatives, which shall not be unreasonably withheld.
(q) During the period of five years hereafter, the Company will
furnish to the Representatives, and upon request of the Representatives, to each
of the Underwriters, (i) as soon as practicable after the end of each fiscal
year, copies of the annual report of the Company containing the balance sheet of
the Company as of the close of such fiscal year and statements of income,
shareholders' equity and cash flows for the year then ended and the opinion
thereon of the Company's independent certified public accountants, (ii) as soon
as practicable after the filing thereof, copies of each proxy statement, Annual
Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other
report filed by the Company with the Commission, or the American Stock Exchange
or any national securities exchange, (iii) as soon as available, copies of any
report or communication of the Company mailed generally to its securityholders
and (iv) all public reports and all reports and financial statements furnished
by the Company to the Commission.
(r) The Company agrees to retain Noble as a financial advisor for the
Company for a period of two years from and after the date of the Prospectus, at
a fee of $3,000 per month, plus out-of-pocket expenses; such fee, aggregating
$72,000, shall be due and payable in full at the closing of the Units.
(s) So long as any of the Warrants shall remain outstanding, the
Company shall use its best efforts to cause the Warrants of the Company and the
shares of Common Stock underlying the Warrants to maintain their listing on the
American Stock Exchange.
(t) Within sixty (60) days of the later of (i) the Firm Closing Date
or, (ii) the Option Closing Date, the Company shall deliver to counsel for the
Underwriters three leather-bound volumes containing the documents delivered at
Closing by the parties hereto.
16
(u) For a period of five years, when requested by Noble, but not more
than weekly, the Company shall provide a list of the Company's shareholders as
of the date Noble requests such lists, together with the Depository Trust
Company (DTC) transfer sheets and the Non-Objecting Beneficial Ownership (NOBO)
lists provided by ADP Proxy Services.
(v) The Company agrees to nominate a board member appointed by Noble
International Investments, Inc. or permit them to appoint advisors to the
Company's Board for a ______ year period, such period commencing upon the Firm
Closing Date and shall receive all notices and other correspondence and
communications sent by the Company to members of the Board, and copies of all
minutes thereof. The Company shall reimburse the Underwriters' designee for his
or her out-of-pocket expenses reasonably incurred and authorized in advance by
the Company in connection with his or her attendance of the Board meetings. The
Representative understands and agrees that the individual so appointed may
receive material non-public information in connection with his duties, and,
therefore, including the Company's policies, will comply with all rules and
regulations regarding the use of such information.
(w) In connection with the redemption of the Warrants, the
Representative shall be entitled to a fee of 7% of the exercise price for each
Warrant exercised; provided, however, that the Representative will not be
entitled to receive such compensation in Warrant exercise transactions in which
(i) the market price of Common Stock at the time of exercise is lower than the
exercise price of the Warrants; (ii) the Warrants are held in any discretionary
account; (iii) disclosure of compensation arrangements is not made, in addition
to the disclosure provided in this Prospectus, in documents provided to holders
of Warrants at the time of exercise; (iv) the holder of the Warrants has not
confirmed in writing that the Representative solicited such exercise; or (v) the
solicitation of exercise of the Warrants was in violation of Regulation M
promulgated under the Securities Act. The Company hereby covenants and agrees
that it, not employee, retain or hire any other person or broker dealer in
connection with the redemption of the Warrants, without the prior written
consent of the Representative. The covenants and agreements contained in this
paragraph shall survive termination of this Agreement. Noble's appointment as
Warrant Solicitation Agent shall be subject to an agreement to be entered into
by Noble and the Company containing such other terms and conditions as are
customary therefor.
(x) Subsequent to the dates as of which information is given in the
Registration Statement and Prospectus and prior to the Closing Dates, except as
disclosed in or contemplated by the Registration Statement and Prospectus, (i)
the Company will not have incurred any material liabilities or obligations,
direct or contingent, or entered into any material transactions other than in
the ordinary course of business; (ii) there shall not have been any change in
the capital stock, funded debt (other than regular repayments of principal and
interest on existing indebtedness) or other securities of the Company, any
material adverse change in the condition (financial or other), business,
operations, income, net worth or properties, including any material loss or
damage to the properties of the Company (whether or not such loss is insured
against), which could materially adversely affect the condition (financial or
other), business, operations, income, net worth or properties of the Company;
and (iii) the Company shall not pay or declare any dividend or other
distribution on its Common Stock or its other securities or redeem or repurchase
any of its Common Stock or other securities.
17
6. Expenses.
(a) The Company will pay all costs and expenses incident to the
performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 11 hereof, including all costs and expenses incident to (i)
the printing or other production of documents with respect to the transactions,
including any costs of printing the registration statement originally filed with
respect to the Securities and any amendment thereto, any Preliminary Prospectus
and the Prospectus and any amendment or supplement thereto, this Agreement, the
Selected Dealer Agreement, Agreement between Underwriters, and any blue sky
memoranda, (ii) all arrangements relating to the delivery to the Underwriters of
copies of the foregoing documents, (iii) the fees and disbursements of the
counsel, the accountants and any other experts or advisors retained by the
Company, (iv) preparation, issuance and delivery to the Underwriters of any
certificates evidencing the Securities, including transfer agent's and
registrar's fees, and all taxes related thereto, (v) the qualification of the
Securities under state securities and blue sky laws, including filing fees and
fees and disbursements of counsel for the Underwriters relating thereto, (vi)
the filing fees of the Commission and the National Association of Securities
Dealers, Inc. (the "NASD") relating to the Securities, (vii) any quotation of
the Securities on the American Stock Exchange, (viii) any meetings with
prospective investors in the Securities (other than as shall have been
specifically approved by the Representatives to be paid for by the
Underwriters), (ix) advertising relating to the offering of the Securities
(other than as shall have been specifically approved by the Representatives to
be paid for by the Underwriters) and (x) all other costs, fees and expenses
incurred by the Company incident to the performance of the Company's obligations
hereunder, which are not otherwise specifically provided for in this Section. If
the sale of the Securities provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 7 hereof
is not satisfied, because this Agreement is terminated pursuant to Section 11
hereof or because of any failure, refusal or inability on the part of the
Company to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all out-of-pocket expenses (including counsel fees and disbursements) that
shall have been incurred by them in connection with the proposed purchase and
sale of the Securities.
(b) In addition to the foregoing, the Company agrees to pay to the
Underwriters at the closing a non-accountable expense allowance in the amount of
2.0% of the gross dollar amount of the offering to the public (including the
Over-Allotment Option, if exercised), out of which a sixty thousand ($60,000)
dollar advance payment has been made. The Underwriters shall pay their own costs
and expenses, including the costs and expenses of their counsel, any transfer
taxes on the Securities which they may sell, and the expenses of advertising any
offering of the Securities made by the Underwriters.
7. Conditions of the Underwriters' Obligations. The respective
obligations of the several Underwriters to purchase and pay for the Firm
Securities shall be subject, in the Representatives' sole discretion, to the
accuracy of the representations and warranties of the Company contained herein
as of the date hereof and as of the Firm Closing Date, as if made on and as of
the Firm Closing Date, to the accuracy of the statements of the Company's
officers
18
made pursuant to the provisions hereof, to the performance by the Company of its
covenants and agreements hereunder and to the following additional conditions:
(a) The Registration Statement shall have been declared effective by
the Commission not later than 5:30 P.M., New York time, on the date of this
Agreement or such later date and time as shall be consented to in writing by the
Underwriters, and, the Firm Closing Date and each Overallotment 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 to the knowledge of the Company
by the Commission and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
Underwriters' counsel. If the Company has elected to rely upon Rule 430A of the
Rules and Regulations, the price of the Securities and any price-related
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 within the
prescribed time period, and prior to Closing Date the Company shall have
provided evidence satisfactory to the Underwriters 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.
(b) The Underwriters shall not have advised the Company that the
Registration Statement, or any amendment thereto, contains an untrue statement
of fact which, in the Representative's opinion, and the opinion of its counsel
is material or omits to state a fact which, in the Representative's opinion, 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 which, in the Representative's
reasonable opinion, or the opinion of its counsel is material, or omits to state
a fact which, in the Representative's reasonable opinion, 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.
(c) The Company's registration statement pursuant to the Exchange Act
on Form 8-A has been declared effective by the Commission.
(d) The Representatives shall have received an opinion, dated the
Firm Closing Date, of Broad and Xxxxxx and Xxx Xxxxxx Van der Kroef Advocaten
Digsselholfplantsoen, counsels for the Company, to the effect that:
(i) the Company and each of its subsidiaries listed in Exhibit
21.1 to the Registration Statement (the "Subsidiaries") have been duly organized
and are validly existing as corporations in good standing under the laws of
their respective jurisdictions of incorporation and are duly qualified to
transact business as foreign corporations and are in good standing under the
laws of all other jurisdictions where the ownership or leasing of their
respective properties or the conduct of their respective businesses requires
such qualification, except where the failure to be so qualified does not amount
to a material liability or disability to the Company and the Subsidiaries, taken
as a whole;
19
(ii) the Company and each of the Subsidiaries have corporate
power to own or lease their respective properties and conduct their respective
businesses as described in the Registration Statement and the Prospectus, and
the Company has corporate power to enter into this Agreement and to carry out
all the terms and provisions hereof to be carried out by it including, without
limitation, to issue, sell and deliver to the Underwriters the Securities to be
issued and sold hereunder;
(iii) the issued shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable and, except as otherwise set forth in the Prospectus, are owned
beneficially by the Company free and clear of any security interests, liens,
encumbrances, equities or claims;
(iv) the Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus; all of the issued shares of
capital stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable, have been issued in compliance with all
applicable federal and state securities laws and were not issued in violation of
or subject to any preemptive rights or other rights to subscribe for or purchase
securities; the Securities have been duly authorized by all necessary corporate
action of the Company and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be validly issued, fully paid and
nonassessable; the Securities have been duly filed for trading on the American
Stock Exchange, no holders of outstanding shares of capital stock of the Company
are entitled as such to any preemptive or other rights to subscribe for any of
the Securities; and no holders of securities of the Company are entitled to have
such securities registered under the Registration Statement;
(v) the statements set forth under the heading "Description of
Capital Stock" in the Prospectus, insofar as such statements purport to
summarize certain provisions of the capital stock of the Company, provide a fair
summary of such provisions; and the statements set forth under the heading
"Legal Proceedings" in the Prospectus, insofar as such statements constitute a
summary of the legal matters, documents or proceedings referred to therein,
provide a fair summary of such legal matters, documents and proceedings;
(vi) the execution and delivery of this Agreement, the
Representative's Warrant Agreement, and the Warrant Agreement between the
Company and Warrant Agreement have been duly authorized by all necessary
corporate action of the Company and this Agreement has been duly executed and
delivered by the Company and each constitutes a legally valid and binding
agreement in accordance with their terms subject to bankruptcy exceptions;
(vii) (A) no legal or governmental proceedings are pending to
which the Company or any of the Subsidiaries is a party or to which the property
of the Company or any of the Subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not described
therein, and, to the best knowledge of such counsel, no such proceedings have
been threatened against the Company or any of the Subsidiaries or with respect
to any of their respective properties and (B) no contract or other document is
required to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement that is not described
therein or filed as required;
20
(viii) the issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by the
tCompany with the other provisions of this Agreement, the Representative's
Warrant Agreement, the Warrant Agreement between the Company and Warrant Agent
and the consummation of the other transactions herein contemplated do not (A)
require the consent, approval, authorization, order, registration or
qualification of or with any court, governmental authority or governmental
agency, except such as have been obtained and such as may be required by the
NASD or as required under state securities or blue sky laws, or (B) conflict
with or result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any indenture, mortgage, deed of trust, lease or
other agreement or instrument, known to such counsel, to which the Company or
any of the Subsidiaries is a party or by which the Company or any of the
Subsidiaries or any of their respective properties are bound, or the charter
documents or by-laws of the Company or any of the Subsidiaries, or any statute
or any judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator known to such counsel and applicable to
the Company or Subsidiaries;
(ix) there are no outstanding securities of the Company or the
Subsidiaries convertible or exchangeable into or evidencing the right to
purchase or subscribe for any shares of capital stock of the Company or the
Subsidiaries and except as disclosed in the Prospectus, there are no outstanding
or authorized options, warrants or rights of any character obligating the
Company or the Subsidiaries to issue any shares of its capital stock or any
securities convertible or exchangeable into or evidencing the right to purchase
or subscribe for any shares of such stock; and there is no holder of any
securities of the Company or the Subsidiaries or any other person who has the
right, contractual or otherwise, to cause the Company to sell or otherwise issue
to them, or to permit them to underwrite the sale of, any of the Securities or
the right to have any shares of Common Stock or other securities of the Company
included in the Registration Statement or the right, as a result of the filing
of the Registration Statement, to require registration under the Act of any
shares of Common Stock or other securities of the Company;
(x) the Registration Statement and all post-effective
amendments thereto, if any, have become effective under the Act; any and all
filings, if any, required by Rule 430A of the Act Rules and Regulations have
been made; and, no stop order proceedings with respect thereto have been
instituted or are pending or threatened under the Act; any required filing of
the Prospectus, and any supplement thereto pursuant to the Act Rules and
Regulations has been made in the manner and within the time period required;
(xi) the Original Registration Statement and each amendment
thereto, any Rule 462(b) Registration Statement and the Prospectus (in each
case, other than the financial statements and other financial information
contained therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the applicable requirements of the Act and
the Act Rules and Regulations;
(xii) except as disclosed in the Prospectus (i) there is no
claim or any action by any person pertaining to a proceeding pending or
threatened, that challenges the ownership or use by the Company of any
copyright, patent, trademarks, service marks, service name and trade names (the
"Intellectual Property") used by the Company in the context of its
21
business and the Company owns and has full right, title and interest in and do,
or has a valid and exclusive right to, all Intellectual Property necessary in
the conduct of its business as presently conducted or as proposed to be
conducted as described in the Prospectus.
(xiii) the certificates representing the warrants and shares of
common with units, warrants and shares of common stock are in due and proper
form. The securities conformed to the description thereof set forth in the
Prospectus;
(xiv) in connection with the Registration Statement, such
counsel has participated in discussions and conferences with certain of the
officers and Representatives of the Company, Representatives of the
Underwriters, counsel to the Underwriters, and the independent accountants for
the Company at which the contents of the Registration Statement and the
Prospectus were discussed. Such counsel has no reason to believe that either the
Registration Statement, as of its effective date, or the Prospectus, or any
amendment or supplement thereto, as of their respective effective or issue
dates, or as of the date hereof, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading;
(xv) such counsel has read all contracts and other documents
specifically enumerated in the Registration Statement and the Prospectus, and
such contracts and other documents are fairly summarized or described therein,
fairly present the information required to be shown; conform in all material
respects to the descriptions thereof contained therein, and are filed as
exhibits thereto, if required;
(xvi) except as described in the Prospectus, neither the Company
nor any of the Subsidiaries owns any interest in any corporation, partnership,
joint venture, trust or other business entity.
In rendering such opinions, such counsel may set forth that as to
certain matters of fact, where appropriate, such counsel is relying on one or
more certificates of public officials, governmental agencies or officers of the
Company. In addition, as to matters of law, counsel for the Company may rely as
to matters involving the application of laws other than the laws of the United
States, except for laws dealing with matters within the jurisdiction of the laws
of Florida, the laws of Delaware and jurisdictions in which they are admitted,
to the extent such counsel deems proper and to the extent specified in such
opinion, upon an opinion or opinions (in form and substance satisfactory to the
Underwriters' counsel) of ______________________________,
References to the Registration Statement and the Prospectus in this
paragraph (d) shall include any amendment or supplement thereto at the date of
such opinion.
(e) The Representatives shall have received from KPMG LLP a letter or
letters dated, respectively, the date hereof and the Firm Closing Date, in form
and substance satisfactory to the Representatives, to the effect that:
(i) they are independent accountants within the meaning of the
Act and the Act Rules and Regulations;
22
(ii) in their opinion, the audited consolidated condensed
financial statements and schedules and pro forma financial statements examined
by them and included in the Registration Statement and the Prospectus comply in
form in all material respects with the applicable accounting requirements of the
Act and the related published rules and regulations;
(iii) on the basis of (A) their review in accordance with
standards established by the American Institute of Certified Public Accountants
of any unaudited interim consolidated condensed financial statements of the
Company and its consolidated subsidiaries as indicated in their report included
in the Registration Statement and Prospectus, (B) a reading of the unaudited
amounts for sales, net sales, net loss before income taxes or total or per share
amounts of net loss of the Company and its consolidated subsidiaries for the
years ended December 31, 2001 and December 31, 2000 and of the unaudited
consolidated condensed financial statements of the Company and its consolidated
subsidiaries for the periods from which such amounts are derived, carrying out
certain specified procedures (which do not constitute an examination made in
accordance with generally accepted auditing standards) that would not
necessarily reveal matters of significance with respect to the comments set
forth in this paragraph (iii), (C) a reading of the minute books of the
shareholders, the board of directors and any committees thereof of the Company
and each of its consolidated subsidiaries and (D) inquiries of certain officials
of the Company and its consolidated subsidiaries who have responsibility for
financial and accounting matters, nothing came to their attention that caused
them to believe that:
(1) the unaudited consolidated condensed financial
statements of the Company and its consolidated subsidiaries included in the
Registration Statement and the Prospectus do not comply in form in all material
respects with the applicable accounting requirements of the Act and the related
published rules and regulations thereunder or are not in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited consolidated condensed financial statements
included in the Registration Statement and the Prospectus;
(2) the unaudited amounts for sales, net sales, net loss
before income taxes or total or per share amounts of the Company and its
consolidated subsidiaries included in the Registration Statement and the
Prospectus do not agree with the amounts set forth in any unaudited consolidated
condensed financial statements for those same periods or were not determined on
a basis substantially consistent with that of the corresponding amounts in the
audited consolidated condensed financial statements included in the Registration
Statement and the Prospectus; and
(3) at a specific date not more than five business days
prior to the date of such letter, there were any changes in the capital stock or
long-term debt of the Company and its consolidated subsidiaries or any decreases
in net current assets or stockholders' equity of the Company and its
consolidated subsidiaries, in each case compared with amounts shown on the
____________ consolidated balance sheet included in the Registration Statement
and the Prospectus, or for the period from ___________to such specified date
there were any decreases, as compared with the prior comparable period, in
sales, net sales, net loss before income taxes or total or per share amounts of
net loss of the Company and its consolidated subsidiaries except in all
instances for changes, decreases or, increases set forth in such letter; and
23
(4) they have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts, percentages and
financial information that are derived from the general accounting records of
the Company and its consolidated subsidiaries and are included in the
Registration Statement and the Prospectus and the Registration Statement, and,
at the request of the Representatives, have compared such amounts, percentages
and financial information with such records of the Company and its consolidated
subsidiaries and with information derived from such records and have found them
to be in agreement, excluding any questions of legal interpretation; and
(5) on the basis of a reading of the unaudited pro forma
consolidated condensed financial statements included in the Registration
Statement and the Prospectus, carrying out certain specified procedures that
would not necessarily reveal matters of significance with respect to the
comments set forth in this paragraph (5), inquiries of certain officials of the
Company and its consolidated subsidiaries who have responsibility for financial
and accounting matters and proving the arithmetic accuracy of the application of
the pro forma adjustments to the historical amounts in the unaudited pro forma
combined financial statements, nothing came to their attention that caused them
to believe that the unaudited pro forma combined financial statements do not
comply in form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments
have not been properly applied to the historical amounts in the compilation of
such statements.
In the event that the letters referred to above set forth any such changes,
decreases or increases, it shall be a further condition to the obligations of
the Underwriters that (A) such letters shall be accompanied by a written
explanation of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (B) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as amended as of the
date hereof.
References to the Registration Statement and the Prospectus in this
paragraph (e) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(f) The Representatives shall have received a certificate, dated the
Firm Closing Date, of the principal executive officer and the principal
financial or accounting officer of the Company to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct as if made on and as of the Firm Closing Date;
the Registration Statement, as amended as of each of the Closing Dates, does not
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading, and the
Prospectus, as amended or supplemented as of the Firm Closing Date, does not
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the Company has
performed all covenants and agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Firm Closing Date;
24
(ii) no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and no
proceedings for that purpose have been instituted or threatened or are
contemplated by the Commission; and
(iii) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, (i) neither the
Company nor any of the Subsidiaries has incurred any material liabilities or
obligations, direct or contingent, or entered into any other transactions not in
the ordinary course of business, (ii) there has not been any material adverse
change in the condition (financial or otherwise), properties, business,
management, prospects, net worth, capital stock, investment objectives,
investment policies or results of operations of the Company and the Subsidiaries
taken as a whole, or any change in the capital stock, or material change in the
short-term or long-term debt, of the Company and the Subsidiaries taken as a
whole and (iii) there has been no dividend or distribution of any kind declared,
paid or made by the Company or the Subsidiaries on any class of their respective
capital stock.
(g) The Representatives shall have received from each person who is a
director or officer of the Company or who owns or has a controlling interest in
shares of Common Stock an agreement to the effect that such person or entity,
will not, directly or indirectly, without the prior written consent of Noble, on
behalf of the Underwriters, offer, sell, hypothecate, offer to sell, contract to
sell, pledge, grant any option to purchase or otherwise sell or dispose (or
announce any offer, sale, offer of sale, contract of sale, pledge, grant of any
option to purchase or other sale or disposition) of any Securities for a period
of [6 months, 12 months and 18 months after the date of this Agreement.]
(h) On or before the Firm Closing Date, the Representatives and
counsel for the Underwriters shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Company.
(i) Prior to the commencement of the offering of the Securities, the
Securities shall have been included for trading on the American Stock Exchange.
(j) By the Closing Date, the Underwriters shall have received
clearance from NASD as to the amount of compensation allowable or payable to the
Underwriters, as described in the Registration Statement.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and pay
for any Option Securities shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Firm Securities, except that all references
to the Firm Securities and the Firm Closing Date shall be deemed to refer to
such Option Securities and the related Option Closing Date, respectively.
25
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934 (the "Exchange Act"), against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter or
such controlling person may become subject under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are caused by, related to or based upon or arising out of or in
connection with:
(i) any untrue statement or alleged untrue statement made by
the Company in Section 2 of this Agreement;
(ii) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto or (B) any application or other document, or any amendment or
supplement thereto, executed by the Company or based upon written information
furnished by or on behalf of the Company filed in any jurisdiction in order to
qualify the Securities under the securities or blue sky laws thereof or filed
with the Commission or any securities association or securities exchange (each
an "Application");
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary Prospectus or
the Prospectus or any amendment or supplement thereto, or any Application a
material fact required to be stated therein or necessary to make the statements
therein not misleading; or
(iv) any untrue statement or alleged untrue statement of any
material fact contained in any audio or visual materials, including, without
limitation, slides, videos, films and tape recordings used in connection with
the marketing of the Securities, including, without limitation, statements
communicated to securities analysts employed by the Underwriters;
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement or
any amendment thereto, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto or any Application in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein; and provided, further,
that the Company will not be liable to any Underwriter or any person controlling
such Underwriter with respect to any such untrue statement or omission made in
any Preliminary Prospectus that is corrected in the Prospectus (or any amendment
or supplement thereto) if the person asserting any such loss, claim, damage or
liability purchased Securities from such Underwriter but was not sent or given a
copy of the Prospectus (as amended or supplemented) at or prior to the written
confirmation of the sale of such Securities to such person in any case where
such delivery of the Prospectus (as amended or supplemented) is required by the
Act, unless such failure to deliver the Prospectus (as amended or supplemented)
was a result
26
of noncompliance by the Company with Section 5(d) and (e) of this Agreement.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have. The Company will not, without the prior written consent of
the Underwriter or Underwriters purchasing, in the aggregate, more than fifty
percent (50%) of the Securities, settle or compromise or consent to the entry of
any judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not any
such Underwriter or any person who controls any such Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act is a party to
such claim, action, suit or proceeding), unless such settlement, compromise or
consent includes an unconditional release of all of the Underwriters and such
controlling persons from all liability arising out of such claim, action, suit
or proceeding.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which the
Company or any such director, officer or controlling person may become subject
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or any
Application or (ii) the omission or the alleged omission to state therein a
material fact required to be stated in the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or any Application or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
specifically for use therein: and, subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal or
other expenses reasonably incurred by the Company or any such director, officer
or controlling person in connection with investigating or defending any such
loss, claim, damage, liability or any action in respect thereof. This indemnity
agreement will be in addition to any liability which such Underwriter may
otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 8. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying
27
party, the indemnifying party shall not have the right to direct the defense of
such action on behalf of such indemnified party or parties and such indemnified
party or parties shall have the right to select separate counsel to defend such
action on behalf of such indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by such indemnified party of counsel appointed to
defend such action, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the Representatives in the case of paragraph (a) of this Section
8, representing the indemnified parties under such paragraph (a) who are parties
to such action or actions) or (ii) the indemnifying party does not promptly
retain counsel satisfactory to the indemnified party or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. After such notice from the indemnifying party
to such indemnified party, the indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such indemnified
party without the consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 8 is unavailable or insufficient, for
any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
the Underwriters. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters, the parties'
relative intents, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances. The Company and the Underwriters agree that it
would not be equitable if the amount of such contribution were determined by pro
rata or per capita allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
into account the equitable considerations referred to
28
above in this paragraph (d). Notwithstanding any other provision of this
paragraph (d), no Underwriter shall be obligated to make contributions hereunder
that in the aggregate exceed the total public offering price of the Securities
purchased by such Underwriter under this Agreement, less the aggregate amount of
any damages that such Underwriter has otherwise been required to pay in respect
of the same or any substantially similar claim, and no person guilty of
fraudulent misrepresentation (within the meaning of Section II (f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
hereunder are several in proportion to their respective underwriting obligations
and not joint, and contributions among Underwriters shall be governed by the
provisions of the Noble International Investments, Inc. Master Agreement Among
Underwriters. For purposes of this paragraph (d), each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, shall have the same rights to contribution as the Company.
9. Default of Underwriters. If one or more Underwriters default in their
obligations to purchase Firm Securities or Option Securities hereunder and the
aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or Option
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase. If one or more Underwriters so default with respect to an aggregate
number of Securities that is more than ten percent of the aggregate number of
Firm Securities or Option Securities, as the case may be, to be purchased by all
of the Underwriters at such time hereunder, and if arrangements satisfactory to
the Representatives are not made within 36 hours after such default for the
purchase by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives) of the Securities with respect to
which such default occurs, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company other than as provided
in Section 10 hereof. In the event of any default by one or more Underwriters as
described in this Section 9, the Representatives shall have the right to
postpone the Firm Closing Date or the Option Closing Date, as the case may be,
established as provided in Section 3 hereof for not more than seven business
days in order that any necessary changes may be made in the arrangements or
documents for the purchase and delivery of the Firm Securities or Option
Securities, as the case may be. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 9. Nothing herein shall relieve any defaulting Underwriter from
liability for its default.
10. Survival. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company, its officers and the
several Underwriters set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this
29
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company, any of its officers or
directors, any Underwriter or any controlling person referred to in Section 8
hereof and (ii) delivery of and payment for the Securities. The respective
agreements, covenants, indemnities and other statements set forth in Sections 6
and 8 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
11. Termination. (a) This Agreement may be terminated with respect to the
Firm Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Company given prior to the Firm Closing Date or
the related Option Closing Date, respectively, in the event that the Company
shall have failed, refused or been unable to perform all obligations and satisfy
all conditions on its part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Firm Closing Date or such Option Closing Date,
respectively,
(i) the Company or any of its subsidiaries shall have, in the
sole judgment of the Representatives, sustained any material loss or
interference with their respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding or there shall
have been any event resulting in a Material Adverse Effect, except in each case
as described in or contemplated by the Prospectus (exclusive of any amendment or
supplement thereto);
(ii) trading in the Securities shall have been suspended by the
Commission or the American Stock Exchange shall have been suspended or minimum
or maximum prices shall have been established on such exchange;
(iii) a banking moratorium shall have been declared by Florida,
(Netherlands) or United States authorities; or
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an outbreak or
escalation of any other insurrection or armed conflict involving the United
States, or any terrorist attack involving the United States or any interests of
the United States, or (C) any other calamity or crisis or material adverse
change in general economic, political, or financial conditions having an effect
on the U.S. financial markets that, in the sole judgment of the Representatives,
makes it impractical or inadvisable to proceed with the public offering or the
delivery of the Securities as contemplated by the Registration Statement, as
amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 11 shall
be without liability of any party to any other party except as provided in
Section 10 hereof.
12. Information Supplied by Underwriters. The statements set forth in the
last paragraph on the front cover page and under the [heading] "Underwriting" in
any Preliminary Prospectus or the Prospectus (to the extent such statements
relate to the Underwriters) constitute the only information furnished by any
Underwriter through the Representatives to the Company for the purposes of
Sections 2(b) and 8 hereof. The Underwriters confirm that such statements (to
such extent) are correct.
30
13. Notices. All communications hereunder shall be in writing and, if sent
to any of the Underwriters, shall be mailed, delivered or sent by confirmed
facsimile transmission to the Representatives c/o Noble International
Investments, Inc., 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, XX 00000
(facsimile no.: (000) 000-0000), Attention: Nico X. Xxxxx, with a copy to Xxxxxx
& Xxxx, P.A. 000 Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 0000, Xxxx Xxxxxxxxxx, XX 00000
(facsimile no. (000) 000-0000), Attention: Xxxx X. Xxxxxxxxx, Esquire, except
that notices given to an Underwriter pursuant to Section 6 hereof shall be sent
to such Underwriter at the address furnished by the Representatives or, if sent
to the Company, shall be mailed, delivered or sent by confirmed facsimile
transmission to Broad and Xxxxxx, 000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000,
Xxxxx, XX 00000 (facsimile no. (000) 000-0000), Attention: Xxxxxxx Xxxxxxxx,
Esquire.
14. Successors. This Agreement shall inure to the benefit of and shall be
binding upon the several Underwriters, the Company and their respective
successors and legal Representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Company contained in Section 8 of this Agreement shall
also be for the benefit of any person or persons who control any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Underwriters contained in Section 8 of this
Agreement shall also be for the benefit of the directors of the Company, the
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act. No purchaser of Securities from any
Underwriter shall be deemed a successor because of such purchase.
15. Applicable Law. The validity and interpretation of this Agreement, and
the terms and conditions set forth herein, shall be governed by and construed in
accordance with the laws of the State of Florida, without giving effect to any
provisions relating to conflicts of laws.
16. Consent to Jurisdiction and Service of Process. All judicial
proceedings arising out of or relating to this Agreement may be brought in any
state or federal court of competent jurisdiction in the State of Florida, and by
execution and delivery of this Agreement, the Company accepts for itself and in
connection with its properties, generally and unconditionally, the nonexclusive
jurisdiction of the aforesaid courts and waives any defense of forum non
conveniens and irrevocably agrees to be bound by any judgment rendered thereby
in connection with this Agreement. The Company designates and appoints CT
Corporation Systems, Inc., and such other persons as may hereafter be selected
by the Company irrevocably agreeing in writing to so serve, as its agent to
receive on its behalf service of all process in any such proceedings in any such
court, such service being hereby acknowledged by the Company to be effective and
binding service in every respect. If any agent appointed by the Company refuses
to accept service, the Company hereby agrees that service of process sufficient
for personal jurisdiction in any action against the Company in the State of
Florida may be made by registered or certified mail, return receipt requested,
to the Company at its address provided in Section 13 hereof, and the Company
hereby acknowledges that such service shall be effective and binding in every
respect. Nothing herein shall affect the right to serve process in any other
manner permitted by
31
law or shall limit the right of any Underwriter to bring proceedings against the
Company in the courts of any other jurisdiction.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
32
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter shall constitute an agreement binding the Company and each of the
several Underwriters.
Very truly yours,
PEPC WORLDWIDE, N.V.
By:_____________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
NOBLE INTERNATIONAL INVESTMENTS, INC.
By: Noble International Investments, Inc.
By:__________________________________
Name:
Title:
On their behalf and on behalf of the several Underwriters named in Schedule A
hereto:
33
SCHEDULE I
UNDERWRITERS
Number of Firm
Securities to
Underwriter be Purchased
----------- ------------
Total: _________________
SCHEDULE 7(G)
LOCK-UP AGREEMENTS
I. The Company, Officers, Directors and Certain Other Persons and Entities
[DRAFT]
