1
Exhibit 1.1
1,000,000 SHARES(1)
SEEC, INC.
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
_______________, 1996
▇.▇. ▇▇▇▇▇▇▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
as Representative of the several
Underwriters named in SCHEDULE 1
attached hereto
Gentlemen:
1. INTRODUCTION. SEEC, Inc., a Pennsylvania corporation (the "Company"),
proposes to sell to the several underwriters named in SCHEDULE 1 attached
hereto (the "Underwriters"), for which ▇.▇. ▇▇▇▇▇▇▇▇▇▇ & Co., Inc. is acting as
representative (the "Representative"), an aggregate of 1,000,000 shares of the
Company's Common Stock, $.01 par value per share (the "Common Stock"). The
1,000,000 shares of Common Stock to be sold by the Company are referred to as
the "Firm Shares." The respective amounts of the Firm Shares to be purchased by
the several Underwriters are set forth opposite their names in SCHEDULE 1
hereto.
The Company also proposes to issue and sell an aggregate of not more
than 150,000 additional shares of Common Stock if requested by the
Representative in accordance with Section 9 hereof. Such additional shares are
referred to as the "Additional Shares." The Firm Shares and the Additional
Shares are collectively referred to herein as the "Shares." The words "you" and
"your" refer to the Representative of the Underwriters.
The Company hereby confirms as follows its arrangements for the
purchase of the Shares by the Underwriters.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents, warrants and agrees with each of the
Underwriters that, except as disclosed in the Effective Prospectus and the
Final Prospectus (each as hereinafter defined):
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1 Together with an option to purchase from the Company up to 150,000
additional shares to cover over allotments.
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(i) A registration statement on Form S-1 (File No. 333-14027)
under the Securities Act of 1933, as amended (the "Act"), with respect to the
Shares, including a preliminary form of prospectus, has been prepared by the
Company in conformity in all material respects with the requirements of the Act
and the Rules and Regulations (as hereinafter defined) of the Securities and
Exchange Commission (the "Commission") thereunder and has been filed with the
Commission under the Act. Such registration statement, as amended and revised
at the time it becomes effective, or, if a post-effective amendment to such
registration statement has been or is filed, at the time such post-effective
amendment becomes effective, including financial statements and exhibits, is
hereinafter referred to as the "Registration Statement," and the prospectus
included as part of the Registration Statement on file with the Commission when
it became or shall become effective, or, if the procedure in Rule 430A of the
Rules and Regulations is followed, the prospectus that discloses all the
information that was omitted from the prospectus on the effective date of the
Registration Statement pursuant to such Rule and, in either case, together with
any changes contained in any prospectus filed with the Commission by the
Company under Rule 424(b) of the Rules and Regulations with your consent after
the effective date of the Registration Statement, is referred to herein as the
"Final Prospectus." If the procedure in Rule 430A is followed, the prospectus
included as part of the Registration Statement on the date when the
Registration Statement became effective is referred to herein as the "Effective
Prospectus." Any prospectus included in the Registration Statement and in any
amendments thereto prior to the effective date of the Registration Statement is
referred to herein as the "Pre-Effective Prospectus." For purposes hereof,
"Rules and Regulations" means the rules and regulations adopted by the
Commission under either the Act or the Securities Exchange Act of 1934 (the
"Exchange Act"), as applicable. For purposes hereof, all references to the
Registration Statement, the Pre-Effective Prospectus, the Effective Prospectus
or the Final Prospectus, or any amendment or supplement to any of the
foregoing, shall be deemed to include the respective copies thereof filed with
the Commission pursuant to the Commission's Electronic Data Gathering, Analysis
and Retrieval System ("▇▇▇▇▇").
(ii) The Commission has not issued any order preventing or
suspending the use of any Pre-Effective Prospectus and has not instituted or,
to the knowledge of the Company, threatened to institute any proceedings with
respect to such an order (a "Stop Order"); each Pre-Effective Prospectus, when
filed with the Commission, conformed in all material respects to the
requirements of the Act and the Rules and Regulations; when the Registration
Statement became or shall become effective and at all times subsequent thereto
up to and including the Closing Date and the Option Closing Date (each as
hereinafter defined), the Registration Statement, the Effective Prospectus, the
Final Prospectus and each amendment and each supplement thereto, if any, will
conform in all material respects to the requirements of the Act and the Rules
and Regulations; any request of the Commission for additional information (to
be included in the Registration Statement, the Effective Prospectus, the Final
Prospectus or otherwise) has been complied with; no part of the Registration
Statement, nor any amendment thereto, included or will include any untrue
statement of a material fact or omitted or will omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading; and none of the Effective Prospectus, the Final Prospectus or any
Pre-Effective Prospectus (or any supplement thereto) as of their respective
dates, and, in the case of the Final Prospectus (or any supplement thereto) at
all times subsequent thereto up to and including the Closing Date and
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Option Closing Date, included or will include any untrue statement of a
material fact or omitted or will omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements in or
omissions from any Pre-Effective Prospectus, the Registration Statement, the
Effective Prospectus or the Final Prospectus, or any such amendment or
supplement, made in reliance upon, and in conformity with, information
furnished in writing to the Company by or on behalf of the Underwriters
expressly for use therein. As used in this Agreement, the term "knowledge"
means actual knowledge by any officer or director of the Company after
reasonable inquiry.
(iii) The Company (A) is a duly incorporated and validly
existing corporation in good standing under the laws of the Commonwealth of
Pennsylvania, with full power and authority (corporate and other), and all
necessary consents, authorizations, approvals, orders, licenses, certificates,
and permits of and from, and declarations and filings with, all federal, state,
local and other governmental authorities and all courts and other tribunals
(collectively, the "Consents") to own or lease its properties and to conduct
its business as described in the Effective Prospectus and the Final Prospectus;
and (B) is duly qualified to do business as a foreign corporation in each
jurisdiction (x) in which the conduct of its business or (y) in which the
character of the property owned or leased by it requires such qualification,
except for those jurisdictions in which the failure so to qualify has not had
and will not have in the aggregate a material and adverse effect on the
Company. As used in this Agreement, the phrase "material and adverse effect on
the Company" or similar phrase means any material and adverse effect, directly
or indirectly, currently or prospectively, on the Company's financial
condition, results of operations, properties or prospects or business in
general.
(iv) The Company has no subsidiaries.
(v) The Company has a duly authorized and validly outstanding
capitalization as set forth in the Effective Prospectus and the Final
Prospectus and will have the adjusted capitalization set forth therein on the
Closing Date, based on the assumptions set forth therein; the capital stock of
the Company conforms to the descriptions thereof contained in the Effective
Prospectus and the Final Prospectus; the outstanding shares of capital stock
have been duly authorized and validly issued by the Company and are fully paid
and nonassessable, without any personal liability attaching to the ownership
thereof; the outstanding shares of capital stock have been issued in compliance
with all applicable federal and state securities laws; and the Company has duly
authorized the issuance and sale of the Shares to be issued and sold by the
Company in accordance with this Agreement. Except as created hereby or referred
to in the Registration Statement, the Effective Prospectus and the Final
Prospectus, there are no outstanding options, warrants, rights or other
arrangements (including without limitation preemptive rights) requiring the
Company at any time to issue any capital stock. The Shares are not and will not
be subject to any preemptive or other similar rights of any shareholder, which
have not been waived, have been duly authorized and, when issued, paid for and
delivered in accordance with the terms hereof will be validly issued, fully
paid and non-assessable and have been issued in compliance with all applicable
federal and state securities laws; and the holders thereof will not be subject
to any liability solely as such holders. Upon the issuance and delivery
pursuant to the terms hereof
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of the Shares, the Underwriters will acquire good and marketable title to such
Shares free and clear of any lien, encumbrance, equity, claim, security
interest, or other restriction whatsoever.
(vi) The financial statements and the related notes and
schedules thereto filed with and as part of the Registration Statement, the
Effective Prospectus and the Final Prospectus (collectively, the "Financial
Statements") fairly present the financial condition, results of operations,
stockholders' equity and cash flows of the Company at the respective dates of
such statements, notes and schedules and for the respective periods to which
they apply. The Financial Statements have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, are correct and complete and are in accordance with the books
and records of the Company. Certain of the Financial Statements have been
audited by BDO ▇▇▇▇▇▇▇, LLP, who are independent public accountants within the
meaning of the Act and the Rules and Regulations, as indicated in their reports
filed therewith. No other financial statements are required by Form S-1 or
otherwise to be included in the Registration Statement, the Effective
Prospectus or the Final Prospectus. The financial information and statistical
data set forth in the Effective Prospectus and the Final Prospectus under the
captions "Prospectus Summary -- Summary Financial Data," Capitalization,"
"Selected Financial Data" and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" have been prepared on a basis
consistent with the Financial Statements.
(vii) The Company has filed all necessary federal and state
income and franchise tax returns and has paid all taxes shown as due
thereunder, and the Company has no knowledge of any tax deficiency which might
be assessed against the Company which, if so assessed, might have a material
and adverse effect on the Company.
(viii) The Company is insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are, in the opinion of the Company's management, customary and adequate for the
businesses in which it is engaged, including, but not limited to, general
liability insurance and insurance covering real and personal property owned or
leased by the Company against theft, damage, destruction, acts of vandalism and
all other risks customarily insured against by any company that is comparable
to the Company in terms of its financial condition, all of which insurance is
in full force and effect. The Company has no reason to believe that it will not
be able to renew existing insurance coverage with respect to the Company 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 now have,
individually or in the aggregate, a material and adverse effect on the Company.
(ix) Except as disclosed in the Effective Prospectus and the
Final Prospectus, there is no pending or, to the knowledge of the Company,
threatened action, suit, proceeding or investigation before or by any court,
regulatory body or administrative agency or any other governmental agency or
body, domestic or foreign, which (A) 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, (B) is required
to be disclosed in the Registration Statement which is not so disclosed (and
such proceedings as are summarized in the
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Registration Statement, if any, are accurately summarized in all respects), or
(C) would have a material and adverse effect on the Company.
(x) The Company has full legal right, power and authority to
enter into this Agreement and to consummate the transactions provided for
herein; and this Agreement has been duly authorized by the Company's Board of
Directors and executed and delivered by the Company. This Agreement, assuming
it is a binding agreement of yours, constitutes a legal, valid and binding
agreement of the Company enforceable against the Company in accordance with its
terms (except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, or other similar laws relating to creditors' rights
generally, and general equitable principles relating to the availability of
remedies, and as rights to indemnity or contribution may be limited by state or
federal securities laws and the public policy underlying such laws), and none
of the Company's execution or delivery of this Agreement, its performance
hereunder, or its consummation of the transactions contemplated herein,
conflicts or will conflict with, or results or will result, in any breach or
violation of any of the terms or provisions of, or constitutes or will
constitute a default under, or result in the creation or imposition of any
lien, charge, or encumbrance upon, any property or assets of the Company
pursuant to the terms of (A) the articles of organization or by-laws of the
Company, (B) any contract, indenture, mortgage, deed of trust, voting trust
agreement, stockholders agreement, note agreement or other agreement or
instrument to which the Company is a party or by which it may be bound or to
which any of its properties is or may be subject, or any indebtedness, or (C)
any statute, judgment, decree, order, rule or regulation applicable to the
Company of any arbitrator, court, regulatory body or administrative agency or
other governmental agency or body, domestic or foreign, having jurisdiction
over the Company or any of their activities or properties.
(xi) All executed agreements or copies of executed agreements
filed as exhibits to the Registration Statement to which the Company is a party
or by which it may be bound or to which any of its assets, properties or
business may be subject have been duly and validly authorized, executed and
delivered by the Company, constitute the legal, valid and binding agreements of
the Company, enforceable against it in accordance with their respective terms
(except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws relating to enforcement of
creditors' rights generally, and general equitable principles relating to the
availability of remedies, and as rights to indemnity or contribution may be
limited by state or federal securities laws and the public policy underlying
such laws) and, to the knowledge of the Company, no default has occurred under
such agreements by the parties with whom the Company has entered into such
agreements. The descriptions in the Registration Statement of contracts and
other documents are accurate and fairly present the information required to be
shown with respect thereto by Form S-1, and there are no contracts or other
documents which are required by the Act or the Rules and Regulations to be
described in the Registration Statement or filed as exhibits to the
Registration Statement which are not described or filed as required, and the
exhibits which have been filed are complete and correct copies of the documents
of which they purport to be copies. Each transaction with ERA Software Systems
Private Limited ("ERA") is on terms comparable to those in an arm's length
transaction and has been evidenced by a formal agreement.
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(xii) Subsequent to the most recent respective dates as of
which information is given in the Effective Prospectus and the Final Prospectus
and except as expressly contemplated in the Effective Prospectus and the Final
Prospectus, the Company has not incurred, other than in the ordinary course of
its business, any material liabilities or obligations, direct or contingent,
paid or declared any dividends or other distributions on its capital stock or
entered into any material transactions not in the ordinary course of business,
and there has been no material change in capital stock or debt or any material
adverse change in the condition (financial or other), net worth or results of
operations of the Company. The Company is not in breach or violation of, or in
default under, any term or provision of (A) its articles of organization or
by-laws, (B) any contract, indenture, mortgage, deed of trust, voting trust
agreement, stockholders agreement, note agreement or other agreement or
instrument to which the Company is a party or by which it is bound or to which
any of its property is subject, or any indebtedness, which breach, violation or
default would have a material and adverse effect on the Company, or (C) any
statute, judgment, decree, order, rule or regulation applicable to the Company
of any arbitrator, court, regulatory body, administrative agency or any other
governmental agency or body, domestic or foreign, having jurisdiction over the
Company or any of its activities or properties and the effect of which breach
or default would be material and adverse to the Company.
(xiii) No labor disturbance by the employees of the Company
exists or, to the knowledge of the Company, is imminent which could reasonably
be expected to have a material and adverse effect on the Company.
(xiv) Since its inception, the Company has not incurred any
material liability arising under or as a result of the application of the
provisions of the Act or applicable state securities laws.
(xv) The Company does not maintain an "employee pension
benefit plan" (as defined in Section 3(2) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")).
(xvi) The Company owns or possesses adequate rights to use,
license and sublicense all material patents, patent applications, trademarks,
service marks, trade names, licenses, copyrights and proprietary or other
confidential information (together, "Proprietary Rights") currently employed by
it in connection with its business. The Company has all Proprietary Rights
necessary to carry out the Company's current, former and anticipated future
activities, including without limitation, rights to make, use, exclude others
from using, reproduce, modify, adapt, create derivative works based on,
translate, distribute (directly and indirectly), transmit, display and perform
publicly, license, rent, lease, assign, and sell the Proprietary Rights, and to
sublicense any or all such rights to third parties, including the right to
grant further sublicenses. The Company is not, nor as a result of the execution
and delivery of this Agreement, or performance of the Company's obligations
hereunder, will the Company be, in material violation of any license,
sublicense or agreement to which the Company is a party or otherwise bound. The
Company has not received any notice of infringement, misuse or misappropriation
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
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finding, would result in a material and adverse effect on the Company. There
is no pending or, to the knowledge of the Company, threatened or potential
claim, challenge or proceeding by the Company against any third party for
infringement, misuse or misappropriation or interference with any Proprietary
Right owned, licensed or controlled by the Company. The Company has not
disclosed any material confidential information developed or utilized by the
Company to any third party except on a confidential basis and pursuant to a
confidentiality agreement and with no intention to entitle such third party to
use such information other than for the purposes set forth in such
confidentiality agreement, nor, to the knowledge of the Company, has any third
party disclosed confidential information developed or utilized by the Company
to any person not an employee of the Company or of the third party. The Company
has nondisclosure and confidentiality agreements with respect to the
Proprietary Information with all employees of the Company.
(xvii) The Company is not in violation of any laws,
ordinances or governmental rules or regulations to which it or its property is
subject, which violation would have a material and adverse effect on the
Company and, without limiting the generality of the foregoing, the Company has
not violated any applicable safety or similar law applicable to the business of
the Company (or to its respective properties, whether owned or leased), or any
federal or state law relating to discrimination in the hiring, promotion, or
pay of employees, or any applicable federal or state wages and hours law, or
any provisions of ERISA or the rules and regulations promulgated thereunder,
which violation would have a material and adverse effect on the Company.
(xviii) No consent, approval, authorization or order of any
court, regulatory body, administrative agency or any other governmental agency
or body, domestic or foreign, is required for the performance by the Company of
this Agreement or the consummation by the Company of the transactions
contemplated hereby, except such as have been or may be obtained under the Act
or may be required under state securities or Blue Sky laws in connection with
the Underwriters' purchase and distribution of the Shares to be sold hereunder.
(xix) There are no holders of securities of the Company
having rights (exercisable currently or in the future) to the registration of
such securities under the Registration Statement who have not waived such
rights with respect to the Registration Statement and the transactions provided
for herein.
(xx) Neither the Company nor, to the knowledge of the
Company, any of its officers, directors or affiliates (within the meaning of
the Rules and Regulations) has taken or will take, directly or indirectly, any
action designed to stabilize or manipulate the price of any security of the
Company, or which might in the future reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the Company,
to facilitate the sale or resale of the Shares or otherwise.
(xxi) The Company has good and marketable title to all
properties and assets owned by it free and clear of all liens, encumbrances,
restrictions, equity, claims and defects, except such as are described in the
Registration Statement, the Effective Prospectus and the Final
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Prospectus or such as do not materially adversely affect the value of any of
such properties or assets taken as a whole and do not interfere with the use
made and proposed to be made of any of such properties or assets; all of the
material leases and subleases of the Company, and under which the Company holds
properties or assets as lessee or sublessee, constitute the binding obligations
of the Company free and clear of any lien, encumbrance, claim or defect, are in
full force and effect, and the Company is not in default in respect of any of
the material terms or provisions of any of such leases or subleases, and the
Company has not received notice of any material claim which has been asserted
by anyone adverse to the rights of the Company as lessee or sublessee under any
of such leases or subleases, or affecting or questioning the right of the
Company to the continued possession of the leased or subleased premises or
property under any such material lease or sublease, which would have a material
and adverse effect on the Company; and the Company owns or leases all such
premises and properties as are necessary to its operations as now conducted,
and as proposed to be conducted as set forth in the Registration Statement and
the Effective Prospectus and the Final Prospectus; and the properties and
business of the Company conform to the descriptions thereof contained in the
Registration Statement, the Effective Prospectus and the Final Prospectus.
(xxii) The Company holds all franchises, licenses,
governmental approvals, permits, certificates and other authorizations from
state, federal and other regulatory authorities necessary to the ownership,
leasing and operation of its properties or required for the present conduct of
its business, and such franchises, licenses, governmental approvals, permits,
certificates and other authorizations are in full force and effect and the
Company is in all material respects in compliance therewith except where the
failure so to obtain, maintain or comply with would not have a material and
adverse effect on the Company.
(xxiii) The Company maintains books, records and accounts
which in reasonable detail accurately and fairly reflect the transactions and
dispositions of its assets, and maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific authorization; (B)
transactions are executed as necessary to permit preparation of financial
statements in accordance with generally accepted accounting principles, and to
maintain accountability for assets; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and (D) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xxiv) The Company has filed a registration statement
pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), to register the Common Stock, has filed an application to
list the Securities on the National Association of Securities Dealers, Inc.
Automated Quotation Small-Cap Market (the "Nasdaq Small-Cap Market"), and has
received notification that the listing has been approved, subject to notice of
issuance of the Shares.
(xxv) Neither the Company nor, to the knowledge of the
Company, any director, officer, agent, employee or other person associated
with, or acting on behalf of, the Company has, directly or indirectly at any
time since the inception of the Company: used any Company
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funds for unlawful contributions, gifts, entertainment, or other unlawful
expenses relating to political activity; made any unlawful payment to foreign
or domestic government officials or employees or to foreign or domestic
political parties or campaigns from Company funds; violated any provision of
the Foreign Corrupt Practices Act of 1977 (the "FCPA"), as amended; or made any
unlawful payment. The Company's internal accounting controls and procedures are
sufficient to cause the Company to comply in all material respects with the
Exchange Act and the FCPA.
(xxvi) The Company has obtained from each of its directors
and officers (as defined in the Rules and Regulations), and from substantially
all shareholders, who hold in the aggregate approximately ___________ shares of
Common Stock, options to purchase approximately __________ shares of Common
Stock and warrants to purchase approximately ____________ shares of Common
Stock, his, her or its enforceable written agreement, in form and substance
satisfactory to the Representative and its counsel, that for a period of 270
days from the date of the Final Prospectus he, she or it will not, without your
prior written consent, directly or indirectly, register, issue, offer, sell,
offer to sell, contract to sell, hypothecate, pledge or otherwise dispose of
any shares of Common Stock (or any security or other instrument which by its
terms is convertible into, exercisable for, or exchangeable for, shares of
Common Stock, including, without limitation, any shares of Common Stock
issuable under any employee or director stock options).
(xxvii) The Company is not, and does not intend to conduct
its business in a manner in which it would become, an "investment company" as
defined in Section 3(a) of the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(xxviii) Except as described in the Final Prospectus, the
Company has not incurred any liability for a fee, commission or other
compensation on account of the employment of a broker or finder in connection
with the transactions contemplated by this Agreement.
(xxix) The Company is in compliance with any and all
applicable federal, state and local environmental laws, rules, regulations,
treaties, statutes and codes promulgated by all governmental authorities
relating to the protection of human health and safety, the environment or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"). The
Company has received all permits, licenses or other approvals required of it
under applicable Environmental Laws to conduct its business. The Company is in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to
receive required permits, license or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would not,
individually or in the aggregate, have a material and adverse effect on the
Company. No action, proceeding, revocation proceeding, writ, injunction or
claim is pending or threatened (nor, to the knowledge of the Company, is there
any basis therefor) relating to the Environmental Laws or to the Company's
activities involving Hazardous Material. "Hazardous Material" means any
material or substance that is prohibited or regulated by any Environmental Law,
or that has been designated or regulated by any governmental authority as
radioactive, toxic, hazardous or otherwise a danger to health, reproduction or
the environment. There have been no costs or
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liabilities, to the knowledge of the Company, associated with the effect of or
compliance with the Environment Laws on the business, operations, properties or
assets of the Company that would, individually or in the aggregate, have a
material and adverse effect on the Company.
(xxx) To the knowledge of the Company, no officer, director
or stockholder of the Company other than ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇
▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, has any affiliation or association with the
National Association of Securities Dealers, Inc. (the "NASD") or any member
thereof, except as described in the Prospectus.
(xxxi) The Company has not distributed and will not
distribute any prospectus or other offering material in connection with the
offer and sale of the Shares, other than any Pre-Effective Prospectus, the
Effective Prospectus or the Final Prospectus or other materials permitted by
the Act and the Rules and Regulations to be distributed.
(xxxii) The Company confirms as of the date hereof that it is
in compliance with all provisions of Section 1 of Laws of Florida, Chapter
92-198, AN ACT RELATING TO DISCLOSURE OF DOING BUSINESS WITH CUBA, and the
Company further agrees that if it commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba after the
date the Registration Statement becomes or has become effective with the
Commission or with the Florida Department of Banking and Finance (the
"Department"), whichever date is later, or if the information reported or
incorporated by reference in the Prospectus, if any, concerning the Company's
business with Cuba or with any person or affiliate located in Cuba changes in
any material way, the Company will provide the Department notice of such
business or change, as appropriate, in a form acceptable to the Department.
(b) Each Underwriter hereby represents and warrants to the Company as
follows:
(i) Such Underwriter is registered as a broker dealer with
the Commission and is registered with and holds all required authorizations
from any jurisdiction in which such Underwriter's activities in connection with
this Agreement require such registration or authorization.
(ii) There is not now pending or, to the knowledge of such
Underwriter, threatened against such Underwriter any action or proceeding of
which such Underwriter has been advised, either in any court of competent
jurisdiction, before the Commission or before any state securities commission,
concerning such Underwriter's activities as a broker or dealer, nor has such
Underwriter been named in any action or proceeding which may be expected to
have a material adverse effect upon such Underwriter's ability to act as
contemplated herein.
3. PURCHASE, SALE AND DELIVERY OF THE SHARES. On the basis of the
representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to
sell to the several Underwriters, and each Underwriter, severally and not
jointly, agrees to purchase from the Company at $_____ per share (the "Purchase
Price"), the number of Shares set forth opposite the respective name of such
Underwriter on Schedule 1 hereto (and such number of Additional Shares as set
forth in
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Section 9 hereof), subject to such adjustments to eliminate any fractional
shares as the Representative in its sole discretion shall make.
Delivery of certificates for the Shares, and payment of the purchase
price for the Shares, shall be made at the offices of ▇.▇. ▇▇▇▇▇▇▇▇▇▇ & Co.,
Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other location as
the Representative shall determine and advise the Company by at least two full
business days' notice in writing. Such delivery and payment shall be made at
10:00 a.m., Boston time, on the third business day following the Effective Date
(as defined in Section 11) unless postponed in accordance with the provisions
of Section 13, or at such other time as shall be agreed upon between you and
the Company. The time and date of such delivery and payment are herein called
the "Closing Date." Delivery of the certificates for the Shares shall be made
to the Representative for the respective accounts of the several Underwriters
against payment in Boston Clearing House Funds by the several Underwriters
through the Representative to the order of the Company for the Shares. The
certificates for the Shares to be so delivered will be in definitive, fully
registered form, will bear no restrictive legends and will be in such
denominations and registered in such names as the Representative shall request,
not less than two full business days prior to the Closing Date. The
certificates for the Shares will be made available to the Representative at
such office or such other place as the Representative may designate for
inspection, checking and packaging not later than 9:30 a.m., Boston time on the
business day prior to the Closing Date. The Company shall not be obligated to
sell any Firm Shares, unless all Firm Shares to be sold pursuant to this
Agreement are purchased hereunder.
4. PUBLIC OFFERING OF THE SHARES. As soon after the Registration Statement
becomes effective as the Representative deems advisable, it is understood that
the Underwriters propose to make a public offering (the "Offering") of the
Shares (other than to residents of or in any jurisdiction in which
qualification of the Shares is required and has not become effective) at $____
per share (the "Public Offering Price") and upon the other terms set forth in
the Effective Prospectus and the Final Prospectus relating to the Shares.
5. COVENANTS OF THE COMPANY.
(a) The Company covenants and agrees with each of the Underwriters
that:
(i) The Company will use its best efforts to cause the
Registration Statement and any amendments thereto to become effective as
promptly as practicable and, if the procedure in Rule 430A of the Rules and
Regulations is followed, to comply with the provisions of and make all
requisite filings with the Commission pursuant to such Rule and to notify you
promptly of all such filings. The Company will not at any time, whether before
or after the effective date of the Registration Statement, file any amendment
to the Registration Statement or supplement to the Effective Prospectus or the
Final Prospectus before termination of the offering of the Shares by the
Underwriters of which the Representative shall not previously have been advised
and furnished with a copy, or to which the Representative shall have reasonably
objected or which is not in compliance with the Act or the Rules and
Regulations.
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(ii) As soon as the Company is advised or obtains knowledge
thereof, the Company will advise the Representative (x) when the Registration
Statement, as amended, has become effective, if the provisions of Rule 430A
will be relied upon, when the Final Prospectus has been filed in accordance
with said Rule 430A and when any post-effective amendment to the Registration
Statement becomes effective, (y) of any request made by the Commission for
amending the Registration Statement, for supplementing any Pre-Effective
Prospectus, the Effective Prospectus or the Final Prospectus or for additional
information, or (z) of the issuance by the Commission of any Stop Order or the
institution or threat of any investigation or proceeding for that purpose, and
will use its best efforts to prevent the issuance of any such Stop Order and,
if issued, to obtain the lifting thereof as soon as possible.
(iii) The Company will cooperate with the Representative to
qualify the Shares for offer and sale under the state securities or Blue Sky
laws of such jurisdictions as the Representative may reasonably request and
will make such applications, file such documents and furnish such information
as may be required for such purpose; provided, however, that the Company shall
not be required to qualify as a foreign corporation or file a general or
unlimited consent to service of process in any such jurisdiction.
(iv) If, at any time when a prospectus relating to the Shares
is required to be delivered under the Act, any event occurs as a result of
which the Effective Prospectus, the Final Prospectus, or the Effective
Prospectus or the Final Prospectus as then amended or supplemented, would
include any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein not misleading, or if it becomes
necessary at any time to amend or supplement the Effective Prospectus or the
Final Prospectus to comply with the Act or the Rules and Regulations, the
Company promptly will so notify the Representative and prepare and file with
the Commission an amendment or supplement which will correct such statement or
omission or an amendment or supplement which will effect such compliance, each
such amendment or supplement to be reasonably satisfactory to ▇▇▇▇▇,
▇▇▇▇▇▇-▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.C. (the "Underwriters' Counsel").
(v) As soon as practicable, but in any event not later than
45 days after the end of the 12 month period beginning on the day after the end
of the fiscal quarter of the Company during which the effective date of the
Registration Statement occurs (90 days in the event that the end of such fiscal
quarter is the end of the Company's fiscal year), the Company will make
generally available to its security holders, in the manner specified in Rule
158(b) of the Rules and Regulations, and to the Representative, an earnings
statement which will be in the detail required by, and will otherwise comply
with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules
and Regulations, which statement need not be audited unless required by the
Act, covering a period of at least 12 consecutive months after the effective
date of the Registration Statement.
(vi) During a period of five years after the date hereof, the
Company will furnish to its stockholders, as soon as practicable, annual
reports (including financial statements audited by independent public
accountants and prepared in accordance with generally accepted
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accounting principles) and unaudited quarterly reports of earnings, and will
deliver to the Representative:
(A) concurrently with furnishing such quarterly reports to
its stockholders, a copy thereof in the form furnished to the Company's
stockholders;
(B) concurrently with furnishing such annual reports to its
stockholders, a balance sheet of the Company as at the end of the preceding
fiscal year, together with statements of operations, stockholders' equity, and
cash flows of the Company for the fiscal year then ended, accompanied by a copy
of the report thereon of independent public accountants;
(C) concurrently with mailing, copies of all reports
(financial or other) mailed to stockholders;
(D) concurrently with mailing, copies of all reports and
financial statements furnished to or filed with the Commission, the NASD or any
securities exchange;
(E) every press release and every material news item or
article of interest to the financial community in respect of the Company or its
affairs which was released or prepared by the Company; and
(F) any additional information of a public nature
concerning the Company or its business which the Representative may reasonably
request.
During such five-year period, if the Company has active subsidiaries,
the foregoing financial statements will be on a consolidated basis to the
extent that the accounts of the Company as its subsidiaries are consolidated,
and will be accompanied by similar financial statements for any significant
subsidiary which is not so consolidated.
(vii) The Company will maintain a Transfer Agent and, if
necessary under the jurisdiction of incorporation of the Company, a Registrar
(which may be the same as the Transfer Agent) for its Common Stock.
(viii) The Company will furnish to the Representative or on
the Representative's order, without charge, at such place as the Representative
may designate, copies of each Pre-Effective Prospectus, the Registration
Statement and any pre-effective or post-effective amendments thereto (two of
which copies will be signed and will include all financial statements and
exhibits), the Effective Prospectus and the Final Prospectus, and all
amendments and supplements thereto, including any prospectus prepared after the
effective date of the Registration Statement, in each case as soon as available
and in such quantities as the Representative may reasonably request. To the
extent applicable, the printed copies of the Registration Statement and each
amendment thereto (including all exhibits filed therewith), any Pre-Effective
Prospectus, Effective Prospectus or Final Prospectus (in each case, as amended
or supplemented) furnished to the Representative will be identical to the
electronic copies filed with the Commission pursuant to ▇▇▇▇▇ except to the
extent permitted by Regulation S-T.
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(ix) The Company will not, directly or indirectly, without
the prior written consent of the Representative, offer, sell, grant any option
to purchase or otherwise dispose (or announce any offer, sale, grant of any
option to purchase or other disposition) of any shares of Common Stock or any
securities convertible into, or exchangeable or exercisable for, shares of
Common Stock for a period of 270 days after the date hereof, except pursuant to
this Agreement and except for (a) grants of stock options at exercise prices
equal to the fair market value of the Common Stock under the Stock Option Plan
described in the Effective Prospectus and the Final Prospectus or (b) issuances
pursuant to the exercise of stock options and warrants outstanding on the date
hereof and described in the Effective Prospectus and the Final Prospectus.
(x) Neither the Company nor any of its officers or directors,
nor affiliates of any of them (within the meaning of the Rules and Regulations)
will take, directly or indirectly, any action designed to, or which might in
the future reasonably be expected to cause or result in, stabilization or
manipulation of the price of any securities of the Company.
(xi) As soon as the Company is advised or obtains knowledge
thereof, the Company will promptly advise the Representative of any change in
the information set forth in the certificate delivered by the Company pursuant
to Section 7(vii) below.
(xii) The Company will apply the net proceeds of the offering
substantially in the manner set forth under the caption "Use of Proceeds" in
the Effective Prospectus and the Final Prospectus.
(xiii) The Company will timely file all such reports, forms
or other documents as may be required, from time to time, under the Act, the
Exchange Act, or 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.
(xiv) The Company will cause the Shares to be duly included
for quotation on the NASDAQ Small-Cap Market prior to the Closing Date. The
Company will use its best efforts to ensure that the Shares remain included for
quotation on the NASDAQ Small-Cap Market following the Closing Date.
(xv) The Company will not, without the prior written consent
of the Representative, (i) grant to any holder of securities of the Company any
right to request registration of his securities under the Act or any related
rights unless such registration rights may be exercised only after nine months
following the effective date of the Registration Statement or (ii) file with
the Commission any Registration Statements covering any equity securities of
the Company within nine months following the effective date of the Registration
Statement, except that the Company, at any time, may file a Registration
Statement on Form S-8 to register options and shares of Common Stock issuable
under the plans described in the Effective Prospectus and the Final Prospectus.
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(xvi) The Company will not, without the prior written consent
of the Representative, grant to any person who is not subject to an agreement
described in Section 7(x) below any stock options or other rights to acquire
Common Stock which would be exercisable within six months following the
effective date of the Registration Statement.
(xvii) The Company will comply with all provisions of all
undertakings contained in the Registration Statement.
(xviii) Prior to the Closing Date, the Company will not issue
any press release or other communication, directly or indirectly, or hold any
press conference with respect to the Company, the financial conditions, results
of operations, business, properties, assets or liabilities thereof, or this
offering, without the Representative's prior written consent, which consent
will not be unreasonably withheld.
(xix) The Company will file timely with the Commission
accurate reports on Form SR in accordance with Rule 463 of the Rules and
Regulations or any successor provision.
(xx) The Company will deliver to you, without charge, within
a reasonable period after the expiration of the period in which the
Underwriters may exercise the over-allotment option (but in no event later than
six months from the date of the Prospectus), such bound volumes of the
Registration Statement and all related materials as you may reasonably request.
(xxi) The Company will execute a letter addressed to the
transfer agent for the Company which instructs the transfer agent to note stop
transfer instructions with respect to all of the shares of Common Stock which
are subject to lock up agreements.
(xxii) The Company will do and perform all things reasonably
required or necessary to be done and performed under this Agreement by it prior
to the Closing Date and to satisfy all conditions precedent to the delivery of
the Shares.
(xxiii) All transactions to be entered into by the Company
with ERA shall be at arm's length and shall be approved by an independent
committee of the Board of Directors of the Company.
6. FEES AND EXPENSES.
(a) Regardless of whether the transactions contemplated in this
Agreement are consummated, and regardless of whether for any reason this
Agreement is terminated, the Company will pay and hereby agrees to indemnify
each Underwriter against, all fees and expenses incident to the performance of
the obligations of the Company under this Agreement, including, but not limited
to, (i) the fees and expenses of accountants and counsel for the Company, (ii)
all costs and expenses incurred in connection with the preparation,
duplication, printing, filing, delivery, shipping and mailing of copies of the
Registration Statement and any pre-effective or post-effective amendments
thereto, each Pre-Effective Prospectus, the Effective Prospectus and the Final
Prospectus and any amendments or supplements thereto (including
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postage costs related to the delivery by the Underwriters of any Pre-Effective
Prospectus, the Effective Prospectus or the Final Prospectus, or any amendment
or supplement thereto), this Agreement, the Agreement Among Underwriters, any
Selected Dealer Agreement, Underwriters' Questionnaire, and all other documents
in connection with the transactions contemplated herein, including the cost of
all copies thereof, (iii) fees and expenses relating to qualification of the
Shares under state securities or Blue Sky laws, including the cost of preparing
and mailing the preliminary and final "Blue Sky Memorandum" and disbursements
and reasonable fees of counsel in connection therewith, (iv) fees and expenses
relating to all filings and negotiations with the NASD, including disbursements
and reasonable fees of counsel in connection therewith, (v) the filing fees
payable to the Commission, the NASD and state securities authorities, (vi) all
expenses (including any applicable transfer taxes) incurred in connection with
the issuance and delivery to the Underwriters of the Shares to be sold in
accordance with the Agreement, (vii) any costs or fees incurred in connection
with the quotation of the Shares on the Nasdaq Small-Cap Market, and (viii) all
other costs and expenses incident to the performance of the Company's
obligations hereunder which are not specifically provided for in this Section.
(b) If the Firm Shares are purchased and sold on the Closing Date,
then the Company shall pay to the Representative an amount equal to 7% of the
aggregate Public Offering Price of all Firm Shares sold in the Offering, which
amount shall represent the underwriting discount. If any Additional Shares are
purchased and sold on the Option Closing Date, then the Company shall pay to
the Representative an additional amount equal to 7% of the aggregate Public
Offering Price of all Additional Shares sold in the Offering, which amount
shall represent an additional underwriting discount as aforesaid.
(c) If the Firm Shares are purchased and sold on the Closing Date,
then the Company shall pay to the Representative an amount equal to 3% of the
aggregate Public Offering Price of all Firm Shares sold in the Offering, which
amount shall represent a non-accountable allowance for the expenses incurred by
the Representative in connection with its duties and activities under this
Agreement. If any Additional Shares are purchased and sold on the Option
Closing Date, then the Company shall pay to the Representative an additional
amount equal to 3% of the aggregate Public Offering Price of all Additional
Shares sold in the Offering, which amount shall represent an additional
non-accountable allowance for the expenses incurred by the Representative as
aforesaid.
(d) The Company agrees that if the Firm Shares are purchased and sold
on the Closing Date then it will issue to the Representative individually, and
not in its capacity as Representative, a warrant to purchase up to ten percent
(10%) of the number of Shares of Common Stock offered by the Company at a price
per share equal to 120% of the Public Offering Price (the "Underwriter's
Warrant"). The Underwriter's Warrant shall not be exercisable for a period of
one year from the date of issuance thereof and shall be exercisable thereafter
for a period of four years. The Underwriter's Warrant shall be evidenced by a
certificate in the form and contain the terms and conditions as set forth in
the exhibits to the Registration Statement. The Underwriter's Warrant
certificate shall be delivered in such denominations and in such names as may
be requested by the Representative.
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(e) If the purchase of the Shares as herein contemplated is not
consummated because this Agreement is terminated pursuant to Sections 12(a) or
12(b) hereof or because of the 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 shall reimburse the several Underwriters for
their documented out-of-pocket expenses, including counsel fees and
disbursements, up to a maximum of $100,000 in connection with any investigation
made by them, and any preparation made by them in respect of marketing of the
Shares or in contemplation of the performance by them of their obligations
hereunder. The Company shall not in any event be liable to any of the
Underwriters for the loss of anticipated profits from the transactions covered
by this Agreement.
(f) In the event that the Company abandons the offering contemplated
by the Registration Statement because (i) the Company is acquired by merger,
purchase of assets or otherwise; or (ii) the Company reorganizes with another
entity; or (ii) the Company completes a financing (other than normal bank
debt), then the Company shall hire the Representative under the provisions of
Section 6(g). Any such fees payable under Section 6(g) shall be in addition to
the reimbursement of expenses described in paragraph (e) above.
(g) During the Exclusivity Period (as defined below), if the Company
determines to engage a financial advisor or investment bank to advise the
Company with respect to (i) the issuance and public sale of equity securities
of the Company, the Representative shall have the right, but not the
obligation, to act as a placement agent or managing underwriter, as the case
may be, or (ii) the sale or disposition of the Company or any of its assets or
the acquisition by the Company of any securities or assets of any other
business entity, the Representative shall have the right, but not the
obligation, to act as the Company's exclusive financial advisor. In connection
with any such engagements, the Company and the Representative shall enter into
agreements, appropriate under the circumstances, containing provisions for
compensation, indemnification, and other matters that are usual and customary
for other similar circumstances in which the Representative is engaged. The
"Exclusivity Period" refers to the two year period commencing from the date of
this agreement regardless of whether or not the offering is consummated,
PROVIDED, HOWEVER, that in the event that the Representative abandons the
offering for any reason, the Exclusivity Period shall terminate as of the date
of any such abandonment.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligation of each
Underwriter to purchase and pay for the Shares to be purchased by such
Underwriter hereunder is subject to the continuing accuracy of the
representations and warranties of the Company herein as of the date hereof and
as of the Closing Date as if they had been made on and as of the Closing Date;
the accuracy on and as of the Closing Date of the statements of officers of the
Company made pursuant to the provisions hereof; the performance by the Company
on and as of the Closing Date of its covenants and agreements hereunder, and
the following additional conditions:
(i) The Registration Statement has become effective and any and all
filings required by Rule 424 and Rule 430A of the Rules and Regulations have
been made; no Stop Order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the knowledge of the Company or to the
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Representative's knowledge, have been threatened or are contemplated by the
Commission; and any request of the Commission for additional information to be
included in the Registration Statement or the Effective Prospectus or the Final
Prospectus or otherwise has been complied with or otherwise satisfied.
(ii) The Representative 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, 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 Effective Prospectus or the Final Prospectus, or any
amendment or supplement thereto, contains an untrue statement of fact which, in
the Representative's opinion, 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, in light of the circumstances
under which they were made, not misleading.
(iii) On or prior to the Closing Date, the Representative shall have
received from Underwriters' Counsel such opinion or opinions with respect to
the issuance and sale of the Shares, the Registration Statement, the Effective
Prospectus and the Final Prospectus and other related matters as the
Representative reasonably may request and such counsel shall have received such
papers and information as they request to enable them to pass upon such
matters.
(iv) On the Closing Date and the Option Closing Date, as the case may
be, the Underwriters shall have received the opinion, dated at the Closing
Date, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., counsel to the Company to the effect set forth
below:
(A) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the Commonwealth
of Pennsylvania and is duly qualified to transact business as a foreign
corporation and is in good standing under the laws of all other jurisdictions
where the ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified would
not have a material and adverse effect on the Company;
(B) The Company has corporate power and authority to own or
lease its properties and conduct its business as described in the Registration
Statement, the Effective Prospectus and the Final Prospectus, and the Company
has the power to enter into this Agreement and to carry out all the terms and
provisions hereof to be carried out by it;
(C) To the knowledge of such counsel, 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;
(D) To the knowledge of such counsel, no default exists, and
no event has occurred which, with notice or lapse of time or both, would
constitute a default by the Company in the due performance and observance of
any term, covenant or condition of any contract,
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indenture, mortgage, deed of trust, voting trust agreement, stockholders
agreement, note agreement or other agreement or instrument to which the Company
is a party or by which the Company is bound or to which any of its property is
subject;
(E) The Company has an authorized capitalization as set forth
in the Effective Prospectus and the Final 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, and were not issued in violation of or
subject to any preemptive rights or other rights to subscribe for or purchase
securities (provided that such counsel's opinion as to any agreements that
might confer any such rights shall be based upon such counsel's knowledge); the
Shares 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 Shares have been duly authorized for quotation on the Nasdaq
Small-Cap Market; and 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 Shares (provided that such counsel's opinion as to any agreements
that might confer any such rights shall be based upon such counsel's
knowledge);
(F) The statements set forth under the heading "Description
of Securities" in the Effective Prospectus and the Final Prospectus, insofar as
such statements purport to summarize certain provisions of the capital stock of
the Company, provide a fair summary of such provisions;
(G) The execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action of the Company and
this Agreement has been duly executed and delivered by the Company; and this
Agreement, assuming it is a binding agreement of the Underwriters, constitutes
a legal, valid and binding agreement of the Company enforceable against the
Company in accordance with its terms (except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, or other similar
laws relating to creditors' rights generally, and general equitable principles
relating to the availability of remedies, and as rights to indemnity or
contribution may be limited by state or federal securities laws and the public
policy underlying such laws);
(H) (i) To the knowledge of such counsel, no legal or
governmental proceedings are pending to which the Company is a party or to
which the property of the Company is subject that are required to be described
in the Registration Statement, the Effective Prospectus or the Final Prospectus
and are not described therein, and no such proceedings have been threatened
against the Company or with respect to any of its properties; and (ii) no
contract or other document known to counsel is required to be described in the
Registration Statement, the Effective Prospectus or the Final Prospectus or to
be filed as an exhibit to the Registration Statement that is not described
therein or filed as required;
(I) The issuance, offering and sale of the Shares to the
Underwriters by the Company pursuant to this Agreement, the compliance by the
Company with the other provisions of this Agreement and the consummation of the
other transactions herein contemplated do not
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(A) require the consent, approval, authorization, registration or qualification
of or with any governmental authority, except such as have been obtained and
such as may be required under state securities or Blue Sky laws, or (B)
conflict with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, lease or other agreement or instrument, known to such counsel, to which
the Company is a party or by which the Company or any of its properties are
bound, or the charter documents or by-laws of the Company, 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 (assuming, for purposes of this paragraph, the due qualification
of the Shares for public offering by the Underwriters under state securities
laws, and compliance with all applicable federal and state securities laws);
(J) The Registration Statement is effective under the Act;
any required filing of the Final Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b); and, to
such counsel's knowledge, no Stop Order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and no
proceedings for that purpose have been instituted or threatened or, to the
knowledge of such counsel, are contemplated by the Commission; and
(K) The registration statement originally filed with respect
to the Shares and each amendment thereto and the Effective Prospectus and the
Final Prospectus (in each case, other than the financial statements and other
financial and statistical information contained therein, as to which such
counsel need express no opinion) comply as to form in all material respects
with the applicable requirements of the Act and the Rules and Regulations;
(L) The Company is not now an "investment company" as defined
in Section 3(a) of the Investment Company Act; and
(M) All issuances and sales of currently issued and
outstanding securities by the Company were exempt from registration under the
Act and complied in all respects with the provisions of all applicable federal
and state securities laws.
In addition to the matters set forth above, the opinion shall also
include a statement to the effect that such counsel has participated in
conferences with representatives of the Company, counsel to the Underwriters,
representatives of the independent public accountants for the Company and
representatives of the Underwriters at which the contents of the Registration
Statement and any Pre-Effective Prospectus and related matters were discussed,
and that no facts have come to such counsel's attention which would cause such
counsel to believe that the Registration Statement at the time it became
effective contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading or that, on the Closing Date, the Effective
Prospectus, the Final Prospectus and the Registration Statement contained any
untrue statement of material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading (except that such counsel need express no
comment as to the information provided by the Underwriters, the
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financial statements and schedules or other financial or statistical data
included therein). With respect to such statement, such counsel may state that
their belief is based on the procedures set forth therein, but is without
independent check and verification except as otherwise expressly stated.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deem proper, on certificates of responsible
officers of the Company and public officials. References to the Registration
Statement, Effective Prospectus and the Final Prospectus in this subparagraph
(iv) of Section 7 shall include any amendment or supplement thereto at the date
of such opinion.
(v) On or prior to the Closing Date, Underwriters' Counsel shall have
been furnished such documents, certificates and opinions as they may reasonably
require for the purposes of enabling them to review or pass upon the matters
referred to in paragraph (iii) of this Section 7, or in order to evidence the
accuracy, completeness or satisfaction of any of the representations or
warranties of the Company, or conditions herein contained.
(vi) At the time that this Agreement is executed by the Company, the
Underwriters shall have received from BDO ▇▇▇▇▇▇▇, LLP a letter as of the date
of this Agreement in form and substance satisfactory to you (the "Original
Letter"), and on the Closing Date, the Underwriters shall have received from
BDO ▇▇▇▇▇▇▇, LLP a letter dated the Closing Date stating that, as of a
specified date not earlier than five (5) days prior to the Closing Date,
nothing has come to the attention of BDO ▇▇▇▇▇▇▇, LLP to suggest that the
statements made in the Original Letter are not true and correct.
(vii) On the Closing Date, the Underwriters shall have received a
certificate, dated the Closing Date, of the principal executive officer and the
principal financial or accounting officer of the Company to the effect that
each of such persons has carefully examined the Registration Statement, the
Effective Prospectus and the Final Prospectus, and any amendments or
supplements thereto and this Agreement, and that:
(A) The representations and warranties of the Company in this
Agreement are true and correct, as if made on and as of the Closing Date, and
the Company has complied with all agreements and covenants and satisfied all
conditions contained in this Agreement on its part to be performed or satisfied
at or prior to the Closing Date;
(B) No Stop Order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that purpose
have been instituted or are pending or, to the each such person's knowledge,
are contemplated or threatened under the Act, and any and all filings required
by Rule 424 and Rule 430A of the Rules and Regulations have been timely made;
(C) The Registration Statement, the Effective Prospectus and
the Final Prospectus and, if any, each amendment and each supplement thereto,
contain all statements and information required to be included therein, and
neither the Registration Statement nor any
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amendment thereto includes any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading and none of the Effective Prospectus or the
Final Prospectus or any Pre-Effective Prospectus (or any amendment or
supplement thereto) included any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; and
(D) Subsequent to the respective dates as of which
information is given in the Registration Statement, the Effective Prospectus
and the Final Prospectus, the Company has not incurred, up to and including the
Closing Date, other than in the ordinary course of its business or as
contemplated in the Effective Prospectus and the Final Prospectus, any material
liabilities or obligations, direct or contingent; the Company has not paid or
declared any dividends or other distributions on its capital stock; the Company
has not entered into any transactions not in the ordinary course of business or
as contemplated in the Effective Prospectus and the Final Prospectus, and there
has not been any change in the capital stock (other than change resulting from
the grant or exercise of options under stock option plans or agreements in
effect as of the date of this Agreement) or long-term debt or any increase in
the short-term borrowings (other than as disclosed in the Effective Prospectus
and the Final Prospectus or any increase in short-term borrowings in the
ordinary course of business) of the Company or any material adverse change in
the present or prospective business condition (financial or other), net worth
or results of operations of the Company; the Company has not sustained any
material loss or damage to its property or assets, whether or not insured;
there is no litigation which is pending or, to each such person's knowledge,
threatened against the Company which is required to be set forth in the
Effective Prospectus or Final Prospectus which has not been so set forth; and
there has occurred no event required to be set forth in an amended or
supplemented Effective Prospectus or Final Prospectus which has not been so set
forth.
References to the Registration Statement, the Effective Prospectus and
the Final Prospectus in this paragraph (vii) are to such documents as amended
and supplemented at the date of the certificate.
(viii) Subsequent to the respective dates as of which information is
given in the Registration Statement, the Effective Prospectus and the Final
Prospectus up to and including the Closing Date there has not been any material
adverse change, or any development involving a prospective material adverse
change, in the business or properties of the Company which change or
development makes it impractical or inadvisable in the Representative's
judgment to proceed with the public offering or the delivery of the Shares as
contemplated by the Effective Prospectus and the Final Prospectus.
(ix) No order suspending the sale of the Shares prior to the Closing
Date in any jurisdiction designated by you pursuant to Section 5(iii) hereof
has been issued on or prior to the Closing Date and no proceedings for that
purpose have been instituted or, to your knowledge or that of the Company, have
been or are contemplated.
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(x) The Representative shall have received from each of the Company's
directors and officer and from substantially all shareholders, who hold in the
aggregate approximately __________ shares of Common Stock, options to purchase
approximately ___________ shares of Common Stock and warrants to purchase
approximately ___________ shares of Common Stock, an agreement to the effect
that such person will not, directly or indirectly, without the prior written
consent of the Representative, offer, sell, grant, any portion to purchase or
otherwise dispose (or announce any offer, sale, grant of an option to purchase
or other disposition) of any shares of Common Stock or any securities
convertible into, or exchangeable or exercisable for, shares of Common Stock
for a period of 270 days after the date of this Agreement.
(xi) The Company shall have furnished the Underwriters with such
further opinions, letters, certificates and documents as the Representative or
Underwriters' Counsel may reasonably request in order to effectuate the
provisions of this Agreement. All opinions, certificates, letters and documents
to be furnished by the Company will comply with the provisions hereof only if
they are reasonably satisfactory in all material respects to the Representative
and to the Underwriters' Counsel. The Company shall furnish the Underwriters
with conformed copies of such opinions, certificates, letters and documents in
such quantities as you reasonably request. The certificates delivered under
subsections (vii) and (xi) of this Section 7 shall constitute representations,
warranties and agreements of the Company, as to all matters set forth therein
as fully and effectively as if such matters had been set forth in Section 2 of
this Agreement.
(xii) The NASD, upon review of the terms of the public offering of the
Shares, shall not have objected to the Underwriters' participation in such
offering.
(xiii) Prior to or on the Closing Date, the Company shall have
provided to the Representative copies of the agreements referred to in Section
2(a)(xvi).
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, its officers, directors, partners, employees, agents and counsel,
and each person, if any, who controls such Underwriter within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, against any and all
losses, claims, damages, expenses or liabilities whatsoever (which shall
include, for all purposes of this Section 8, but not limited to, attorneys'
fees and any and all expense whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever whether or not in connection with any litigation in which an
indemnified party is a party and whether or not involving a third party claim
and any and all amounts paid in settlement of any claim or litigation), joint
or several (and actions in respect thereof), to which such Underwriter or such
persons may become subject, under the Act or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages, expenses, liabilities or actions arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, the Effective Prospectus or the Final Prospectus
or any Pre-Effective
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Prospectus, or any amendment or supplement thereto, or any Blue Sky application
or other document executed by the Company specifically for that purpose or
based upon written information furnished by the Company filed in any state or
other jurisdiction in order to qualify any or all of the Shares under the state
securities or Blue Sky laws thereof (any such application, document or
information being hereinafter called a "Blue Sky Application"), or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each such Underwriter or person for any
legal or other expenses incurred by such Underwriter or person in connection
with investigating or defending any such loss, claim, damage, liability or
action; PROVIDED, HOWEVER, that the Company will not be liable in any such case
to any such Underwriter, to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in any of such
document in reliance upon and in conformity with written information furnished
to the Company by such Underwriter expressly for use therein, and PROVIDED,
FURTHER, that such indemnity with respect to any Pre-Effective Prospectus shall
not inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased Shares which are the subject thereof if
such Underwriter failed to send or give a copy of the Effective Prospectus or
the Final Prospectus (or the Effective Prospectus or the Final Prospectus as
amended or supplemented) to such person at or prior to confirmation of the sale
of such Shares to such person in any case where such delivery is required by
the Act and the untrue statement or omission of a material fact contained in
such Pre-Effective Prospectus was corrected in the Effective Prospectus or
Final Prospectus (or the Effective Prospectus or the Final Prospectus as
amended and supplemented); or (ii) any breach of any representation, warranty,
covenant or agreement of the Company contained in this Agreement. The indemnity
agreement in this subparagraph shall be in addition to any liability which the
Company may have at common law or otherwise.
(b) Each of the Underwriters agrees severally, but not jointly, to
indemnify and hold harmless the Company, each of its directors, each of its
officers who has 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(a) of the Exchange Act against any and all losses, claims, damages, expenses
or liabilities whatsoever (which shall include, for all purposes of this
Section 8, but not limited to, attorneys' fees and any and all expense
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever whether or not in
connection with any litigation in which an indemnified party is a party and
whether or not involving a third party claim and any and all amounts paid in
settlement of any claim or litigation), joint or several (and actions in
respect thereof), to which the Company or any such director, officer, or
controlling person may become subject, under the Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages, expenses, liabilities or actions 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 the Effective Prospectus or the
Final Prospectus or any Pre-Effective Prospectus, or an amendment or supplement
thereto or any Blue Sky Application, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to
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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 by that Underwriter expressly for use therein; and will
reimburse all 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 action; or (ii) any
breach of any representation, warranty, covenant or agreement of any
Underwriter contained in this Agreement; PROVIDED, however, that any obligation
of any Underwriter to provide indemnification under the provisions of this
Section 8(b) shall not be in excess of the underwriting discount and commission
applicable to the Shares purchased by such Underwriter hereunder. The Company
acknowledges that the statements with respect to the public offering of the
Shares set forth under the heading "Underwriting" and the stabilization legend
in the Prospectus have been furnished by the Underwriters expressly for use
therein and constitute the only information furnished in writing by or on
behalf of the Underwriters for inclusion in the Effective Prospectus and the
Final Prospectus. The indemnity agreement in this subparagraph (b) shall be in
addition to any liability which each of the Underwriters may have at common law
or otherwise.
(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 one or more indemnifying
parties under this Section 8, notify such indemnifying party or parties of the
commencement thereof; but the omission so to notify an indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8 or to the extent that the indemnifying
party was not adversely affected by such omission. In case any such action is
brought against an indemnified party and it notifies an indemnifying party or
parties of the commencement thereof, the indemnifying party or parties against
which a claim is to be made will be entitled to participate therein and, to the
extent that it or they may wish, to assume the defense thereof, with counsel
reasonably 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 has reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and otherwise to participate in the
defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from any indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party has employed such counsel in
connection with the assumption of such different or additional legal defenses
in accordance with the proviso to the immediately preceding sentence, (ii) the
indemnifying party has not employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action, or (iii) the indemnifying party has
authorized in writing the employment of counsel for the indemnified party at
the expense of the indemnifying party. The indemnifying party, in defense of
any action assumed by it, shall not, without the consent of the indemnified
party, consent to entry of any judgment or enter into any
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settlement of such action which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect to such action. The indemnified party
shall not agree to settle any action or claim for which it intends to seek
indemnification hereunder without the prior written consent of the indemnifying
party.
(d) If the indemnification provided for in this Section 8 is
unavailable to hold harmless an indemnified party under subparagraphs (a) or
(b) above in respect of any losses, claims, damages, expenses or liabilities
(or actions in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid as a result of such losses, claims,
damages, expenses or liabilities (or actions in respect thereof) (i) in such
proportion as is appropriate to reflect the relative benefits received by each
of the contributing parties, on the one hand, and the party to be indemnified
on the other hand, from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of each of the contributing
parties, on the one hand, and the party to be indemnified on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages, expenses 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 net proceeds from the
offering of the Shares (before deducting expenses) bear to the total
underwriting discounts received by the Underwriters hereunder, in each case as
set forth in the table on the Cover Page of the Final Prospectus. Relative
fault 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 on the one hand, or by the Underwriters on the other, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
expenses or liabilities (or actions in respect thereof) referred to above in
this subparagraph (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subparagraph (d), the Underwriters shall not be required to contribute any
amount in excess of the underwriting discount applicable to the Shares
purchased by the Underwriters hereunder. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person, if any who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, each
officer of the Company who has signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to this subparagraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect to which a claim for
contribution may be made against another party or parties under this
subparagraph (d), notify such party or parties from whom contribution may be
sought, but the omission so to notify such party or parties shall not relieve
the
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party or parties from whom contribution may be sought from any other obligation
it or they may have hereunder or otherwise than under this subparagraph (d), or
to the extent that such party or parties were not adversely affected by such
omission. Anything in this Section 8(d) to the contrary notwithstanding, no
party shall be liable for contribution with respect to the settlement of any
claim or action effected without its written consent. This Section 8(d) is
intended to supersede any right to contribution under the Act, the Exchange Act
or otherwise. The contribution agreement set forth above shall be in addition
to any liabilities which any indemnifying party may have at common law or
otherwise.
9. RIGHT TO INCREASE OFFERING. At any time and from time to time during a
period of 30 days from the effective date of the Final Prospectus, the
Representative, by no less than two business days' prior notice to the Company,
may designate a closing (which may be concurrent with, and part of, the closing
on the Closing Date with respect to the Firm Shares or may be a second closing
and which shall be referred to as the "Option Closing Date") at which the
Underwriters shall purchase from the Company in the manner described below, for
the sole purpose of covering over-allotments by the Underwriters during the
public offering, such number of Additional Shares as are specified in the
notice. The maximum number of Additional Shares to be sold by the Company is
150,000 shares of Common Stock. Except to the extent waived by the
Underwriters, all the provisions of this Agreement applicable with respect to
the transactions contemplated on the Closing Date shall apply to such later
closing (with such changes as are necessary) and the Additional Shares
purchased at such closing hereunder shall be deemed Shares for all purposes of
this Agreement.
If any Additional Shares are to be purchased, each Underwriter,
severally and not jointly, agrees to purchase from the Company, at the Purchase
Price, the respective number of Additional Shares which bears the same
proportion to the number of Additional Shares to be sold by the Company as the
total number of Firm Shares set forth opposite the name of such Underwriter in
SCHEDULE 1 hereto bears to the total number of Firm Shares to be sold
hereunder, subject to such adjustments to eliminate any fractional shares as
the Representative in its sole discretion shall make.
10. REPRESENTATIONS, ETC. TO SURVIVE DELIVERY. The respective representations,
warranties, agreements, covenants, indemnities and statements of, and on behalf
of, the Company and its officers, and the Underwriters, respectively, set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters, and
will survive delivery of and payment for the Shares. Any successors to the
Underwriters shall be entitled to the indemnity, reimbursement and contribution
agreements contained in this Agreement.
11. EFFECTIVE DATE. This Agreement shall become effective at the
later of (i) 9:30 a.m., Boston time, on the next full business day following
the date on which the Registration Statement becomes effective under the Act
or (ii) the execution of this Agreement.
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12. TERMINATION.
(a) This Agreement (except for the provisions of Sections 6 and 8
hereof) may be terminated by the Company at any time before this Agreement
becomes effective in accordance with Section 11 hereof, by notice to the
Representative.
(b) This Agreement (except for the provisions of Sections 6 and 8
hereof) may also be terminated by the Representative by notice to the Company
(i) in the event that the Company terminates this Agreement under Section 12(a)
hereof; (ii) in the event that the Company has failed to comply in any material
respect with any of the provisions of this Agreement on its part to be
performed at or prior to the Closing Date or the Option Closing Date, or if any
of the representations or warranties herein or therein are not accurate, or if
the covenants, agreements or conditions of, or applicable to, the Company
herein or therein contained have not been complied with in any material respect
or satisfied within the time specified; (iii) if prior to the Closing Date or
the Option Closing Date, the Company has sustained a loss by strike, fire,
flood, accident or other calamity of such a character as to interfere
materially with the conduct of the business and operations of the Company; (iv)
if prior to the Closing Date or the Option Closing Date, trading in securities
in the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock
Market is suspended or a general banking moratorium has been declared by
federal or state authorities; (v) if there has been a declaration of war by the
United States, or if the United States has become engaged in a major outbreak
of armed hostilities with a foreign government; or (vi) if there has been such
a material adverse change in general economic, political or financial
conditions or if there has been a material and adverse change to the Company
as, in the Representative's judgment, makes it impracticable or inadvisable to
make or consummate a public offering of the Shares on the terms and in the
manner contemplated in the Final Prospectus and in the Registration Statement.
(c) Termination of this Agreement shall be without liability of any
party to any other party other than as provided in Sections 6 and 8 hereof.
13. SUBSTITUTION OF UNDERWRITERS. If one or more of the Underwriters shall fail
or refuse (otherwise than pursuant to Section 7 or for a reason sufficient to
justify the termination of this Agreement under the provisions of Section 12
hereof) to purchase and pay for the number of Shares agreed to be purchased by
such Underwriter or Underwriters upon tender to you of such Shares in
accordance with the terms hereof, and the number of such Shares shall not
exceed 10% of the Shares, then each of the non-defaulting Underwriters shall
purchase and pay for (in addition to the number of such Shares which it has
severally agreed to purchase hereunder) that proportion of the number of Shares
which the defaulting Underwriter or Underwriters shall have so failed or
refused to purchase which the number of Shares agreed to be purchased by such
non-defaulting Underwriter bears to the aggregate number of Shares so agreed to
be purchased by all such non-defaulting Underwriters. In such case, you shall
have the right to postpone each Closing Date specified in Sections 3 and 9
hereof to a date not exceeding seven full business days after the date
originally fixed as such Closing Date pursuant to said Sections 3 and 9 in
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order that any necessary changes in the Registration Statement, the Final
Prospectus or any other documents or arrangement may be made.
If one or more of the Underwriters shall fail or refuse (otherwise
than pursuant to Section 7 or for a reason sufficient to justify the
termination of this Agreement under the provisions of Section 12 hereof) to
purchase and pay for the number of Shares agreed to be purchased by such
Underwriter or Underwriters upon tender to you of such Shares in accordance
with the terms hereof and the number of such Shares shall exceed 10% of the
total Shares, then (unless within 48 hours after such default arrangements to
your satisfaction shall have been made for the purchase of the defaulted Shares
by an Underwriter or Underwriters) this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or on the part of the
Company or the Selling Shareholders except as otherwise provided in this
Agreement. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this paragraph. Nothing in this
Section 13, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
14. NOTICES. All communications hereunder shall be in writing and if sent to
the Representative shall be mailed or delivered or telecopied and confirmed to
▇.▇. ▇▇▇▇▇▇▇▇▇▇ & Co., Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Finance Department, with a copy to ▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, P.C., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., or, if sent to the Company, shall be mailed or
delivered or telecopied and confirmed to the Company at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President, with a copy to ▇▇▇▇▇ &
▇▇▇▇▇▇▇, P.C., 2900 CNG Tower, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
15. SUCCESSORS. This Agreement shall inure to the benefit of and be binding
upon the Company and each Underwriter and their respective successors, legal
representatives, heirs and assigns, 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 the
representations, warranties, indemnities and contribution agreements of the
Company contained in this Agreement shall also be for the benefit of each
Underwriter's officers, directors, partners, employees, agents and counsel and
any person or persons who control any Underwriter within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, and except that the
Underwriters' indemnity and contribution agreements 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(a) of the
Exchange Act. No purchaser of Shares from the Underwriters will be deemed a
successor because of such purchase.
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16. APPLICABLE LAW; JURISDICTION. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts,
without giving effect to the conflict of law principles thereof.
17. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, and all of which together
shall be deemed to be one and the same instrument.
18. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of any
section, paragraph or provision of this Agreement shall not effect the validity
or enforceability of any other section, paragraph or provision hereof. If any
section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as is necessary to make it valid and
enforceable.
If the foregoing correctly sets forth our understanding, please
indicate the Underwriters' acceptance thereof in the space provided below for
the purpose, whereupon this letter shall constitute a binding agreement between
us.
Very truly yours,
SEEC, Inc.
By: __________________________
Name:
Title:
The foregoing Underwriting
Agreement is confirmed and accepted as
of the date first above written:
▇.▇. ▇▇▇▇▇▇▇▇▇▇ & Co., Inc.,
acting on its own behalf and as
the Representative of the several
Underwriters referred to in the
foregoing Agreement
By ▇.▇. ▇▇▇▇▇▇▇▇▇▇ & Co., Inc.
By: ------------------------
Name:
Title:
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SCHEDULE 1
UNDERWRITERS
Number of
Firm Shares
UNDERWRITER TO BE
PURCHASED
▇.▇. ▇▇▇▇▇▇▇▇▇▇ & Co., Inc....................................
--------
Total 1,000,000
31
