750,000 UNITS
BIOSHIELD TECHNOLOGIES, INC.
(a Georgia corporation)
Each Unit Consisting of
Two Shares of Common Stock and
Two Redeemable Common Stock Purchase Warrants
September ___, 1998
UNDERWRITING AGREEMENT
TEJAS SECURITIES GROUP, INC.
REDSTONE SECURITIES, INC.
SEABOARD SECURITIES, INC.
As Representatives of the Several Underwriters
c/o Tejas Securities Group, Inc.
0000 Xxxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Gentlemen:
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1. INTRODUCTION. BioShield Technologies, Inc., a Georgia corporation (the
"Company"), proposes to issue and sell to the several underwriters named in
Schedule A attached hereto (the "Underwriters") for whom you are acting as
representatives (the "Representatives") pursuant to this Underwriting Agreement
(this "Agreement") an aggregate of Seven Hundred Fifty Thousand (750,000) Units
(the "Units") consisting of (i) two shares (the "Shares") of common stock, no
par value (the "Common Stock"), and (ii) two redeemable Common Stock purchase
warrants to purchase one share of Common Stock (the "Redeemable Warrants") at a
price of __________ Dollars ($_____) per Unit. The Redeemable Warrants are
subject to redemption, in certain instances, commencing one (1) year from the
date of the Prospectus (as hereinafter defined). The Units and the Shares and
Redeemable Warrants included in the Units are herein collectively called the
"Firm Securities." In addition, the Selling Shareholders (as hereinafter
defined) and the Company propose to grant to the Underwriters an option to
purchase all or any part of an aggregate of One Hundred Twelve Thousand Five
Hundred (112,500) additional Units (the "Option Securities") consisting of
225,000 shares (the "Option Shares") of Common Stock owned by Xxxxxxx X. Xxxxx
and Xxxxxxx Xxxxxxx, the founders and senior management of the Company (the
"Selling Shareholders"), and 225,000 Redeemable Warrants (the "Option Warrants")
to be issued by the Company, at a price of ___________ Dollars ($_____) per
Unit, solely for covering over-allotments, if any. The Firm Securities and the
Option Securities are hereinafter sometimes referred to as the "Offered
Securities." The 862,500 shares of Common Stock issuable upon exercise of the
Redeemable Warrants included as part of the Offered Securities are hereinafter
referred to as the "Public Warrant Shares."
The Shares and Redeemable Warrants may not be separately traded until
six (6) months after the date of the Prospectus (as hereinafter defined) unless
earlier separated upon ten (10) days' prior written notice from Tejas Securities
Group, Inc. to the Company. Each Redeemable Warrant shall be exercisable after
the Redeemable Warrants become separately tradeable and until five (5) years
from the date of the Prospectus, and shall entitle the holder to purchase one
share of Common Stock at a price equal to $____ per share, which price is
subject to adjustment in certain circumstances to prevent dilution. Commencing
six (6) months from the date of the Prospectus, the Company shall have the
right, at any time, to call each of the Redeemable Warrants for redemption upon
not less than thirty (30) days' prior written notice at any time at a redemption
price of $.05 per Redeemable Warrant, subject to adjustment, provided that the
closing bid quotation of the Common Stock as reported on The Nasdaq Stock Market
or the last sales price if quoted on a national securities exchange for a period
of ten (10) consecutive trading days, exceeds $________ per share, subject to
adjustment in certain circumstances to prevent dilution. The Redeemable Warrants
will be issued pursuant to a warrant agreement dated the date hereof between the
Company and American Securities Transfer & Trust, Inc. (the "Public Warrant
Agreement"), a form of which has been filed as Exhibit 4.6 to the Registration
Statement.
The Company also proposes to issue and sell to the Representatives,
pursuant to the terms of a warrant agreement, dated as of the First Closing Date
(as defined in Section 4(c) below), between you and the Company (the
"Underwriters' Warrant Agreement"), warrants (the "Underwriters' Warrants") to
purchase up to 75,000 Units for One Hundred Dollars ($100). The Underwriters'
Warrants shall be exercisable during the four-year period commencing twelve (12)
months from the Effective Date (as defined in Section 2(a) below), at a price
per unit of 120% of the initial public offering price, subject to adjustment in
certain events to protect against dilution. The 75,000 Units issuable upon
exercise of the Underwriters' Warrants are hereinafter referred to as the
"Underwriters' Units"; the 75,000 shares of Common Stock underlying the
Underwriters' Units are hereinafter referred to as the "Underwriters' Shares";
the 75,000 Redeemable Warrants underlying the Underwriters' Units are
hereinafter referred to as the "Underwriters' Redeemable Warrants"; the 75,000
shares of Common Stock issuable upon exercise of the Underwriters' Redeemable
Warrants are hereinafter referred to as the "Underwriters' Warrant Shares"; and
the Underwriters' Warrants, the Underwriters' Units, the Underwriters' Shares,
the Underwriters' Redeemable Warrants and the Underwriters' Warrant Shares are
sometimes hereinafter referred to collectively as the "Underwriters'
Securities." The Offered Securities and the Underwriters' Securities are
sometimes hereinafter referred to collectively as the "Registered Securities."
The Registered Securities are more fully described in the Registration
Statement and the Prospectus referred to below.
The several Underwriters have advised the Company that they desire to
purchase the Units. The Company confirms the agreements made by it with respect
to the purchase of the Units by the Underwriters as follows:
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2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to each Underwriter as of the date hereof, as of the First Closing Date
(as defined in Section 4(c) below), and as of the Option Closing Date (as
defined in Section 4(c) below), if any, and agrees with each Underwriter, as
follows:
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(a) The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form SB-2 (No. 333-57767) covering the
registration of the Registered Securities under the Securities Act of 1933, as
amended (the "Act"), including the related preliminary prospectus or
prospectuses. Promptly after execution and delivery of this Agreement, the
Company will either (i) prepare and file a prospectus in accordance with the
provisions of Rule 430A ("Rule 430A") of the rules and regulations of the
Commission under the Act (the "Rules and Regulations") and paragraph (b) of Rule
424 ("Rule 424(b)") of the Rules and Regulations or (ii) if the Company has
elected to rely upon Rule 434 ("Rule 434") of the Rules and Regulations, prepare
and file a term sheet (a "Term Sheet") in accordance with the provisions of Rule
434 and Rule 424(b). The information included in such prospectus or in such Term
Sheet, as the case may be, that was omitted from such registration statement at
the time it became effective but that is deemed to be part of such registration
statement at the time it became effective (i) pursuant to paragraph (b) of Rule
430A is referred to as "Rule 430A Information" or (ii) pursuant to paragraph (d)
of Rule 434 is referred to as "Rule 434 Information." Each prospectus used
before such registration statement became effective, and any prospectus that
omitted, as applicable, the Rule 430A Information or the Rule 434 Information
that was used after such effectiveness and prior to the execution and delivery
of this Agreement, is herein called a "Preliminary Prospectus." Such
registration statement, including the exhibits thereto and schedules thereto, at
the time it became effective (the "Effective Date") and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the Rules and Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final prospectus in
the form first furnished to the Underwriters for use in connection with the
offering of the Registered Securities is herein called the "Prospectus." If Rule
434 is relied on, the term "Prospectus" shall refer to the preliminary
prospectus dated September ____, 1998, together with the Term Sheet, and all
references in this Agreement to the date of the Prospectus shall mean the date
of the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any Preliminary Prospectus, the Prospectus or any Term
Sheet or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX"). The Company will not, so
long as any Redeemable Warrants, Underwriters' Warrants or Underwriters'
Redeemable Warrants remain outstanding and exercisable, file any amendment to
the Registration Statement or any amendment or supplement to any Preliminary
Prospectus or the Prospectus unless the Company has given reasonable and prior
notice thereof to the Representatives and counsel for the Underwriters and none
of which shall have reasonably objected within a reasonable period of time prior
to the filing thereof.
The terms used herein shall have the same meaning as in the Prospectus
unless the context hereof otherwise requires.
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(b) Neither the Commission nor any state regulatory authority has
issued any order preventing or suspending the use of any Preliminary
Prospectus, nor has the Commission or any such authority instituted or, to the
best knowledge of the Company, threatened to institute any proceedings with
respect to such an order. At the
times the Registration Statement, any 462(b) Registration Statement and any
post-effective amendments thereto becomes effective and at all times
subsequent thereto up to and on the First Closing Date (as defined in
Section 4(c) below) or the Option Closing Date (as defined in Section 4(c)
below), as the case may be, (i) the Registration Statement, the 462(b)
Registration Statement, the Prospectus, and any amendments or supplements to
any thereof, complied and will comply in all material respects to the
requirements of the Act and the Rules and
Regulations, (ii) the Registration Statement, the 462(b) Registration
Statement, the Prospectus, and any amendments or supplements to any thereof,
did not and will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make statements therein not misleading; provided, however, that the
Company makes no representations, warranties or agreements as to
information contained in or omitted from the Registration Statement or
Prospectus in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of the Underwriters specifically
for use in the preparation thereof; and (iii) if Rule 434 is used, the Company
will comply with the requirements of Rule 434 and the Prospectus shall not be
"materially different," as such term is used in Rule 434, from the
prospectus included in the Registration Statement.
Each Preliminary Prospectus and each Prospectus filed as a part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Rules and
Regulations, complied when so filed in all material respects with the Rules and
Regulations, and each Preliminary Prospectus and each Prospectus delivered
to the Underwriters for use in connection with the offering of the
Registered Securities were identical to the electronically
transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
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(c) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with full power and authority (corporate and other) to own its
properties and conduct its business as described in the Registration Statement
and Prospectus and is duly qualified to do business as a foreign corporation and
is in good standing in all other jurisdictions in which the nature of its
business or the character or location of its properties requires such
qualification, except where failure to so qualify will not have a material
adverse effect on the Company's business, properties, assets, condition
(financial or other) or results of operations (a "Material Adverse Effect"). The
Company holds all authorizations, approvals, licenses, certificates, franchises
and permits from state, federal or other regulatory authorities necessary for
the conduct of its business as presently conducted and as described in or
contemplated by the Registration Statement and is in compliance with all laws
and regulations and all orders and decrees applicable to it or to such business
or assets except where the absence of such authorizations, approvals, licenses,
certificates, franchises and permits will not have a Material Adverse Effect,
and there are no proceedings pending or, to the best knowledge of the Company,
threatened, seeking to cancel, terminate or limit such authorizations,
approvals, licenses, certificates, franchises or permits.
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(d) The authorized, issued and outstanding capital stock of the Company as of
__________, 1998 is as set forth in the Prospectus under "Capitalization"; all
shares of issued and outstanding capital stock of the Company set forth
thereunder have been duly authorized, validly issued and are fully paid and
non-assessable; except as set forth in the Prospectus, no options, warrants, or
other rights to purchase, agreements or other obligations to issue, or
agreements or other rights to convert any obligation into, any shares of capital
stock of the Company have been granted or entered into by the Company; and the
capital stock conforms to all statements relating thereto contained in the
Registration Statement and Prospectus. The issuances and sales of all such
capital stock complied in all respects with applicable federal and state
securities laws; the holders thereof have no rights of rescission with respect
thereto, and are not subject to personal liability by reason of being such
holders; and none of such securities were issued in violation of the preemptive
rights of any holders of any security of the Company or similar contractual
rights granted by the Company.
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(e) This Agreement, the Public Warrant Agreement and the Underwriters' Warrant
Agreement have been duly and validly authorized by the Company, and this
Agreement constitutes, and the Public Warrant Agreement and the Underwriters'
Warrant Agreement, when executed and delivered pursuant to this Agreement
(assuming due execution by the Underwriters and/or the appropriate parties to
such agreements), will each constitute, a valid and binding agreement of the
Company, enforceable against the Company in accordance with their respective
terms, except (i) as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or similar laws
affecting creditors' rights generally, (ii) as enforceability of any
indemnification, contribution or exculpation provision may be limited under
applicable federal and state securities laws, and (iii) that the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought ((i), (ii) and (iii) are hereinafter
referred to as the "Enforceability Exceptions").
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(f) The Company has full power and lawful authority to authorize, issue and sell
the Registered Securities to be sold by it hereunder on the terms and conditions
set forth herein, and no consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental authority or agency
is required in connection with such authorization, execution and delivery or
with the authorization, issue and sale of the Registered Securities, except such
as may be required and have been obtained under the Act, state securities or
blue sky laws and from the National Association of Securities Dealers, Inc.
("NASD").
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(g) The Units and the Shares have been duly authorized and, when issued and
delivered pursuant to this Agreement, will be duly authorized, validly issued,
fully paid and non-assessable. The Redeemable Warrants have been duly authorized
and, when issued and delivered pursuant to this Agreement, will constitute valid
and legally binding obligations of the Company enforceable in accordance with
their terms, subject to the Enforceability Exceptions, and will be entitled to
the benefits provided by the Public Warrant Agreement. The Public Warrant Shares
have been reserved for issuance upon exercise of the Redeemable Warrants and,
when issued in accordance with the terms of the Redeemable Warrants and Public
Warrant Agreement, will be duly authorized, validly issued, fully paid and
non-assessable. The Underwriters' Warrants have been duly authorized and, when
issued and delivered pursuant to this Agreement and the Underwriters' Warrant
Agreement, will constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to the Enforceability
Exceptions, and will be entitled to the benefits provided by the Underwriters'
Warrant Agreement. The Underwriters' Shares have been reserved for issuance upon
exercise of the Underwriters' Warrants and, when issued in accordance with the
terms of the Underwriters' Warrants and Underwriters' Warrant Agreement, will be
duly authorized, validly issued, fully paid and non-assessable. The
Underwriters' Redeemable Warrants, when issued in accordance with the terms of
the Underwriters' Warrants and Underwriters' Warrant Agreement, will be duly
authorized and will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to the
Enforceability Exceptions, and will be entitled to the benefits provided by the
Public Warrant Agreement. The Underwriters' Warrant Shares have been reserved
for issuance upon exercise of the Underwriters' Redeemable Warrants and, when
issued in accordance with the terms of the Underwriters' Redeemable Warrants and
the Public Warrant Agreement, will be duly authorized, validly issued, fully
paid and non-assessable. The issuance of any of the Registered Securities will
not violate or otherwise be subject to the preemptive rights of any holders of
any security of the Company or similar contractual rights granted by the
Company, and none of the holders of any of the Registered Securities will be
subject to personal liability by reason of being such holders.
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(h) The Company is not in violation of any term or provision of its Amended and
Restated Articles of Incorporation or Bylaws or of any contract or agreement or
of any statute or any order, rule or regulation or of any other regulatory
authority or other governmental body having jurisdiction over the Company, which
violation may have a Material Adverse Effect on the Company. Neither the
execution and delivery of this Agreement, nor the issuance and/or sale of any of
the Registered Securities, nor the consummation of any of the transactions
contemplated herein, nor the compliance by the Company with the terms and
provisions hereof, has conflicted with or will conflict with, or has resulted in
or will result in a breach of, any of the terms and provisions, or has
constituted or will constitute a default under, or has resulted in or will
result in the creation or imposition of any lien, charge or encumbrance upon the
property or assets of the Company pursuant to the terms of, any indenture,
mortgage, deed of trust, note, loan or credit agreement or any other agreement
or instrument evidencing an obligation for borrowed money, or any other
agreement or instrument to which the Company is a party, or by which the Company
may be bound, or to which any of the property or assets of the Company is
subject; nor will such actions result in any violation of the provisions of the
Amended and Restated Articles of Incorporation or the Bylaws of the Company or
of any contract or agreement, or of any statute or any order, rule or regulation
applicable to the Company or of any other regulatory authority or other
governmental body having jurisdiction over the Company, which conflict, breach,
default or violation would have a Material Adverse Effect on the Company.
(i) Except as described in the Prospectus, no default exists in the due
performance and observance of any term, covenant or condition of any license,
contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or
any other agreement or instrument to which the Company is a party or by which
the Company may be bound or to which any of the property or assets of the
Company are subject, which default would have a Material Adverse Effect on the
Company.
(j) Except as described in the Prospectus, the Company has good and marketable
title to all properties and assets described in the Prospectus as owned by it,
free and clear of all liens, charges, encumbrances or restrictions, except such
as are not materially significant or important in relation to its business; all
of the leases and subleases under which the Company is the lessor or sublessor
of properties or assets or under which the Company holds properties or assets as
lessee or sublessee as described in the Prospectus are in full force and effect,
and, except as described in the Prospectus, the Company is not in default with
respect to any of the terms or provisions of any of such leases or subleases,
and no claim has been asserted by anyone adverse to rights of the Company as
lessor, sublessor, lessee or sublessee under any of the leases or subleases
mentioned above, or affecting or questioning the right of the Company to
continued possession of the leased or subleased premises or assets under any
such lease or sublease except as described or referred to in the Prospectus; and
the Company owns or leases all such properties described in the Prospectus as
are necessary to its operations as now conducted and, except as otherwise stated
in the Prospectus, as proposed to be conducted as set forth in the Prospectus.
(k) Xxxxx Xxxxxxxx LLP, who have audited and given their reports on certain
financial statements filed and to be filed with the Commission as a part of the
Registration Statement, which are incorporated in the Prospectus, are, with
respect to the Company, independent public accountants as required by the Act
and the Rules and Regulations.
(l) The financial statements, together with related notes, set forth in the
Prospectus or the Registration Statement present fairly the financial position
and results of operations and changes in cash flow position of the Company on
the basis stated in the Registration Statement, at the respective dates and for
the respective periods to which they apply. Said statements and related notes
have been prepared in accordance with generally accepted accounting principles
applied on a basis which is consistent during the periods involved, except as
otherwise stated therein, and all adjustments necessary for a fair presentation
of results for such periods have been made. The information set forth under the
captions "Dilution," "Capitalization," and "Selected Financial Information" in
the Prospectus fairly present, on the basis stated in the Prospectus in all
material respects, the information included therein.
(m) Subsequent to the respective dates as of which information is given in the
Registration Statement and Prospectus, (i) the Company has not incurred any
material liabilities or obligations, direct or contingent, or entered into any
material transactions other than in the ordinary course of business; (ii) there
has not been any change in the capital stock, funded debt (other than regular
repayments of principal and interest on existing indebtedness) or other
securities of the Company; (iii) there has not been any adverse change in the
condition (financial or otherwise), business, operations, income, net worth or
properties, including any loss or damage to the properties, of the Company
(whether or not such loss is insured against); (iv) the Company has not paid or
declared any dividend or other distribution on its Common Stock or its other
securities or redeemed or repurchased any of its Common Stock or other
securities; and (v) the Company has not become a party to, and neither the
business nor the property of the Company has become the subject of, any material
litigation whether or not in the ordinary course of business.
(n) Except as set forth in the Prospectus, there is not now pending or, to the
knowledge of the Company, threatened, any action, suit or proceeding to which
the Company or any of the respective officers, directors or securityholders
thereof is a party before or by any court or governmental agency or body, which
might result in a Material Adverse Effect or prevent consummation of the
transactions contemplated hereby; nor are there any actions, suits or
proceedings related to environmental matters or related to discrimination on the
basis of age, sex, religion or race; and there are no labor disputes involving
the employees of the Company that exist or are imminent which might result in a
Material Adverse Effect.
(o) There is no contract or other document which is required by the Act or by
the Rules and Regulations to be filed as an exhibit to the Registration
Statement which has not been so filed. Each contract which is filed as an
exhibit to the Registration Statement is and shall be in full force and effect
at each Closing Date (as defined in Section 4(c) below) or shall have been
terminated in accordance with its terms or as set forth in the Registration
Statement and Prospectus. No party to any such contract has given notice to the
Company of the cancellation of or, to the best knowledge of the Company, shall
have threatened to cancel, any such contract, and, except as set forth in the
Prospectus, the Company is not or shall not be in default thereunder, which
termination, cancellation or default would have a Material Adverse Effect on the
Company.
-1- (p) Except as set forth in the Prospectus, the Company has filed all
necessary federal, state, local and foreign income and franchise tax returns and
has paid all taxes shown as due thereon; there is no tax deficiency which has
been or to the best knowledge of the Company might be asserted against the
Company; and the Company has established adequate reserves for such taxes which
are not yet due and payable.
(q) To the best knowledge of the Company, none of the activities or business of
the Company are in violation of, or cause the Company to violate, any law, rule,
regulation or order of the United States, any state, county or locality, or of
any agency or body of the United States or of any state, county or locality, the
violation of which would result in a Material Adverse Effect.
(r) The Company maintains insurance, which is in full force and effect, of the
types and in the amounts currently adequate for its business, including but not
limited to personal injury and product liability insurance, insurance covering
all personal property owned or leased by the Company against theft, damage,
destruction, acts of vandalism and all other risks customarily insured against.
The Company has not (i) failed to give notice or present any insurance claim
with respect to any matter, including but not limited to the Company's business,
property or employees, under any insurance policy or surety bond in a due and
timely manner, (ii) had any disputes or claims against any underwriter of such
insurance policies or surety bonds or has failed to pay any premiums due and
payable thereunder, or (iii) failed to comply with all conditions contained in
such insurance policies and surety bonds. To the best knowledge of the Company,
there are no facts or circumstances under any such insurance policy or surety
bond which would relieve any insurer of its obligation to satisfy in full any
valid claim of the Company.
(s) The Company owns or possesses adequate rights to use all patents, patent
rights, inventions, trademarks, service marks, trade names, copyrights, know-how
(including all other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), technology, trade secrets, designs,
processes, works of authorship, computer programs and technical data and
information (collectively, "Intellectual Property") necessary for the conduct of
its business as described in the Prospectus or that are material to the
development, manufacture, operation and sale of all products and services sold
or proposed to be sold by the Company, and the Company has not received any
notice of infringement of or conflict with, and the Company, to the best of the
Company's knowledge, is not infringing or in conflict with asserted rights of
others with respect to, any Intellectual Property.
(t) Except as set forth in the Prospectus, the Company is not obligated or under
any liability whatsoever to make any payment by way of royalties, fees or
otherwise to any owner or licensee of, or other claimant to, any Intellectual
Property, with respect to the use thereof or in connection with the conduct of
its business or otherwise. In addition, the Company owns and has the
unrestricted right to use all Intellectual Property free and clear of and
without violating any right, lien, or claim of others, including without
limitation, former employers of its employees. The Company is not aware of any
development by any other person or entity of trade secrets or items of technical
information similar to those of the Company. The Company has taken reasonable
security measures to protect the secrecy, confidentiality and value of all of
its Intellectual Property in all material aspects.
(u) The Company is not obligated to pay and has not paid within the past twelve
(12) months, and has not obligated, and will not obligate, the Underwriters to
pay, any finder's fee in connection with the underwriting contemplated hereby or
any other fee (cash, securities or otherwise) in consideration of financial,
consulting or investment banking services.
(v) No officer or director of the Company or any "affiliate" or "associate" (as
such terms are defined in Rule 405 promulgated under the Rules and Regulations)
of the Company or any such officer or director has taken, and each officer or
director has agreed that he will not take, directly or indirectly, any action
designed to or which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security issued by the
Company.
(w) No officer, director or greater than 5% stockholder of the Company, or any
affiliate or associate of any of the foregoing persons or entities has or has
had, either directly or indirectly, (i) an interest (other than ownership of an
immaterial number of shares of capital stock of an entity whose securities are
publicly traded) in any person or entity which (A) furnishes or sells products
or services which are furnished or sold or are proposed to be furnished or sold
by the Company, or (B) purchases from or sells or furnishes to the Company any
goods or services, or (ii) a beneficial interest in any contract or agreement to
which the Company is a party or by which it may be bound or affected. Except as
set forth in the Prospectus under "Certain Transactions," there are no existing
agreements, arrangements, or transactions, between or among the Company and any
officer or director of the Company, or any partner, affiliate or associate of
any of the foregoing persons or entities.
(x) The minute books of the Company have been made available to the
Representatives and contain a complete summary of all meetings and actions of
the directors and shareholders of the Company since the time of its date of
organization, and reflect all transactions referred to in such minutes
accurately in all respects.
(y) The Company is not aware of any bankruptcy, labor disturbance or other event
affecting any of its principal suppliers or customers which is reasonably likely
to result in a Material Adverse Effect.
(z) The Registered Securities and all the other securities of the Company
conform to all statements in relation thereto in the Registration Statement.
(aa) Except for the registration rights granted under the Underwriters' Warrant
Agreement, no holder of any securities of the Company has the right to require
that the Company include such securities in the Registration Statement or any
registration statement to be filed by the Company.
(bb) The Units, Shares and Redeemable Warrants are eligible for quotation on The
Nasdaq SmallCap Market. The Company has filed a registration statement with the
Commission pursuant to Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and has used its best efforts to have same
declared effective by the Commission on an accelerated basis on the Effective
Date.
(cc) Neither the Company nor any officer, director or other agent thereof has,
acting on behalf of the Company, at any time (i) made any contributions to any
candidate for political office in violation of law, or failed to disclose fully
any such contributions in violation of law, (ii) made any payment to any state,
federal or foreign governmental officer or official, or any other person charged
with similar public or quasi-public duties, other than payments required or not
prohibited by law or (iii) made any payment of funds of the Company or received
or retained any funds in violation of any law, rule or regulation and under
circumstances requiring the disclosure of such payment, receipt or retention of
funds in the Prospectus. The Company's internal accounting controls and
procedures are sufficient to cause the Company to comply in all material
respects with
the Foreign Corrupt Practices Act of 1977, as amended.
(dd) On each Closing Date (as defined in Section 4(c) below) all transfer or
other taxes, (including franchise, capital stock or other tax, other than income
taxes, imposed by any jurisdiction) if any, which are required to be paid in
connection with the sale and transfer of the Units to the Underwriters hereunder
will have been fully paid or provided for by the Company and all laws imposing
such taxes will have been fully complied
with.
(ee) The Company has no subsidiaries.
(ff) Except as previously disclosed in writing by the Company to the
Representatives, no officer, director or stockholder of the Company has any
affiliation or association with any member of the NASD.
(gg) The Company is not, and upon receipt of the proceeds from the sale of the
Units will not be, an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, and the rules and regulations thereunder.
(hh) The Company has not distributed and will not distribute prior to the First
Closing Date (as defined in Section 4(c) below) any offering material in
connection with the offering and sale of the Units other than the Preliminary
Prospectus, Prospectus, the Registration Statement or the other materials
permitted by the Act, if any.
(ii) The employment agreements between the Company and its respective officers,
as disclosed in the Registration Statement, are or will be on or before the
First Closing Date (as defined in Section 4(c) below) binding and enforceable
obligations upon the respective parties thereto in accordance with their
respective terms, subject to the Enforceability Exceptions.
-
(jj) Except as set forth in the Prospectus, the Company has no employee benefit
plans (including, without limitation, profit sharing and welfare benefit plans)
or deferred compensation arrangements that are subject to the provisions of the
Employee Retirement Income Security Act of 1974.
(kk) There are no voting or other shareholder agreements between the Company and
any stockholders of the Company or between or by and among any stockholders of
the Company.
(ll) The Company has generally enjoyed a satisfactory employer-employee
relationship with its employees and is in compliance with all federal, state,
local, and foreign laws and regulations respecting employment and employment
practices, terms and conditions of employment and wages and hours. There are no
pending investigations involving the Company by the U.S. Department of Labor or
any other governmental agency responsible for the enforcement of such federal,
state, local, or foreign laws and regulations. There is no unfair labor practice
charge or complaint against the Company pending before the National Labor
Relations Board or any strike, picketing, boycott, dispute, slowdown or stoppage
pending or, to the Company's best knowledge, threatened against or involving the
Company, and none has ever occurred. No representation question exists
respecting the employees of the Company, and no collective bargaining agreement
or modification thereof is currently being negotiated by the Company. No
grievance or arbitration proceeding is pending under any expired or existing
collective bargaining agreements to which the Company is or was a party. No
labor dispute with the employees of the Company exists, or is imminent.
(mm) The statements in the Prospectus under "Risk Factors," "Business," "Certain
Transactions," "Management" and "Description of Securities," insofar as they
refer to statements of law, descriptions of statutes, licenses, regulations or
legal conclusions are correct in all material respects.
(nn) The conditions for use of Form SB-2, as set forth in the General
Instructions thereto, have been satisfied.
(oo) There are no business relationships or related-party transactions of the
nature described in Item 404 of Regulation S-B involving the Company and any
person described in such Item that are required to be disclosed in the
Prospectus and that have not been so disclosed.
(pp) Neither the Company nor any of its affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba within the
meaning of Section 517.075, Florida Statutes.
(qq) Any certificate signed by an officer of the Company in his capacity as such
and delivered to the Representatives or counsel for the Underwriters shall be
deemed a representation and warranty by the Company to the Representatives as to
the matters covered thereby.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDERS. Each Selling
Shareholder represents, warrants and covenants to each Underwriter as follows:
(a) This Agreement has been duly and validly authorized by or on behalf of such
Selling Shareholder and when executed and delivered will constitute a valid and
binding agreement of such Selling Shareholder, enforceable against such Selling
Shareholder in accordance with its terms, except as such enforceability may be
limited by the Enforceability Exceptions.
(b) Each of the (i) Custody Agreement signed by such Selling Shareholder and
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C., as custodian (the "Custodian"), relating to the
deposit of the Option Shares to be sold by such Selling Shareholder (the
"Custody Agreement") and (ii) Power of Attorney appointing certain individuals
named therein as such Selling Shareholder's attorneys-in-fact (each, an
"Attorney-in-Fact") to the extent set forth therein relating to the transactions
contemplated hereby and by the Prospectus (the "Power of Attorney"), of such
Selling Shareholder has been duly and validly authorized, executed and delivered
by such Selling Shareholder and isa valid and binding agreement of such Selling
Shareholder, enforceable against such Selling Shareholder in accordance with its
terms, except as such enforceability may be limited by the Enforceability
Exceptions.
(c) Such Selling Shareholder has, and on the Option Closing Date (as defined in
Section 4(c) below) will have, good and valid title to all of the Option Shares
that may be sold by such Selling Shareholder pursuant to this Agreement on such
date and the legal right and power, and all authorizations and approvals
required by law to enter into this Agreement and such Selling Shareholder's
Custody Agreement and Power of Attorney, to sell, transfer and deliver all of
the Option Shares that may be sold by such Selling Shareholder pursuant to this
Agreement and to comply with its other obligations hereunder and thereunder.
(d) Delivery of the Option Shares that are sold by such Selling Shareholder
pursuant to this Agreement will pass good and valid title to such Option Shares,
free and clear of any security interest, mortgage, pledge, lien, encumbrance or
other claim.
(e) The execution and delivery by such Selling Shareholder of, and the
performance by such Selling Shareholder of its obligations under, this
Agreement, the Custody Agreement and the Power of Attorney will not contravene
or conflict with, result in a breach of, or constitute a default under, or
require the consent of any other party to any agreement or instrument to which
such Selling Shareholder is a party or by which it is bound or under which it is
entitled to any right or benefit, any provision of applicable law or any
judgment, order, decree or regulation applicable to such Selling Shareholder of
any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over such Selling Shareholder. No consent,
approval, authorization or other order of, or registration or filing with, any
court or other governmental authority or agency, is required for the
consummation by such Selling Shareholder of the transactions contemplated in
this Agreement, except as may be required and as have been obtained under the
Act, applicable state securities or blue sky laws and from the NASD.
-1- (f) Such Selling Shareholder does not have any registration or other similar
rights to have any equity or debt securities registered for sale by the Company
under the Registration Statement or included in the offering contemplated by
this Agreement, except for such rights as are being exercised in the offering
contemplated by this Agreement or such rights as have been duly waived.
(g) No consent, approval or waiver is required under any instrument or agreement
to which such Selling Shareholder is a party or by which it is bound or under
which it is entitled to any right or benefit, in connection with the offering,
sale or purchase by the Underwriters of any of the Option Shares which may be
sold by such Selling Shareholder under this Agreement or the consummation by
such Selling Shareholder of any of the other transactions contemplated hereby.
-1-
(h) All information furnished by or on behalf of such Selling
Shareholder in writing expressly for use in the Registration Statement and
Prospectus is, and on each Closing Date (as defined in Section 4(c) below) will
be, true, correct, and complete in all material respects, and does not, and on
each Closing Date (as defined
in Section 4(c) below) will not, contain any untrue statement of a material
fact or omit to state any material fact necessary to make such information not
misleading. Such Selling Shareholder confirms as accurate the number of shares
of Common Stock set forth opposite such Selling Shareholder's name in the
Prospectus under the caption
"Principal and Selling Shareholders" (both prior to and after giving
effect to the sale of the Shares).
(i) Such Selling Shareholder has not taken and will not take, directly or
indirectly, any action designed to or that might be reasonably expected to cause
or result in stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of the Shares.
(j) Such Selling Shareholder has no reason to believe that the representations
and warranties of the Company contained in Section 2 hereof are not true and
correct, is familiar with the Registration Statement and the Prospectus and has
no knowledge of any material fact, condition or information not disclosed in the
Registration Statement or the Prospectus that has had or may have a material
adverse effect on the business, properties, financial condition or operations of
the Company and is not prompted to sell shares of Common Stock by any
information concerning the Company that is not set forth in the Registration
Statement and the Prospectus.
-1-
(k) Such Selling Shareholder has not at any time (i) made any
contributions to any candidate for political office in violation of law, or
failed to disclose fully any such contributions in violation of law, (ii)
made any payment to any state, federal or foreign governmental officer or
official, or any other person charged with similar public or quasi-public
duties, other than payments required or not prohibited by law or
(iii) made any payment of funds or received or retained any funds in violation
of any law, rule or regulation and under circumstances requiring the
disclosure of such payment, receipt or retention of funds in the Prospectus.
Any certificate signed by or on behalf of any Selling Shareholder and
delivered to the Underwriters or to counsel for the Underwriters shall be
deemed to be a representation and warranty by such Selling Shareholder
to each Underwriter as to the matters covered thereby.
4. PURCHASE, DELIVERY AND SALE OF THE UNITS.
< -
(a) Subject to the terms and conditions of this Agreement,
and upon the basis of the representations, warranties, and agreements
herein contained, the Company agrees to issue and sell to the
Underwriters, and each Underwriter agrees, severally and not jointly, to buy
from the Company at $_____ per Unit, at the place and time hereinafter
specified, the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule A attached hereto plus any additional Firm Securities
which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 13
hereof. No value shall be attributable to the
Redeemable Warrants constituting a part of the Firm
Securities.
(b) In addition, subject to the terms and conditions of this Agreement, and upon
the basis of the representations, warranties and agreements herein contained,
the Company, with respect to the Option Warrants, and the Selling Shareholders,
with respect to the Option Shares, hereby grant an option (the "Over-Allotment
Option") to the Underwriters to purchase all or any part of the Option
Securities at $______ per Unit. No value shall be attributable to the Option
Warrants constituting a part of the Option Securities. The Over-Allotment Option
may be exercised within forty-five (45) days after the Effective Date upon
notice by the Representatives to the Company advising as to the amount of Option
Securities as to which the option is being exercised, the names and
denominations in which the certificates for such Option Securities are to be
registered and the time and date when such certificates are to be delivered.
Such time and date shall be determined by the Representatives, but shall not be
earlier than two (2) nor later than ten (10) full business days after the
exercise of said option, nor in any event prior to the First Closing Date (as
defined in Section 4(c) below). The number of Option Securities to be purchased
by each Underwriter, if any, shall bear the same percentage to the total number
of Option Securities being purchased by the several Underwriters pursuant to
this Section 4(b) as the number of Firm Securities such Underwriter is
purchasing bears to the total number of the Firm Securities being purchased
pursuant to Section 4(a), as adjusted, in each case by the Representatives in
such manner as the Representatives may deem appropriate. The Over-Allotment
Option granted hereunder may be exercised only to cover over-allotments in the
sale by the Underwriters of Firm Securities referred to in Section 4(a), and the
Underwriters shall have no obligation to make any over-allotments. No Option
Securities shall be delivered and paid for unless the Firm Securities shall be
simultaneously delivered or shall theretofore have been delivered and paid for
as herein provided. In the event the Company declares or pays a dividend or
distribution on its Common Stock, whether in the form of cash, shares of Common
Stock or any other consideration, prior to the Option Closing Date (as defined
in Section 4(c) below), such dividend or distribution shall also be paid on the
Option Shares on such Option Closing Date (as defined in Section 4(c) below).
(c) The Offered Securities to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Tejas Securities Group, Inc. may request upon forty-eight (48) hours'
prior notice to the Company, shall be delivered by or on behalf of the Company
or, in the case of the Option Shares, the Selling Shareholders, to Tejas
Securities Group, Inc., through the facilities of the Depository Trust Company
("DTC"), for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by certified or official bank
check or checks drawn on or by a Dallas Clearinghouse Bank and payable in next
day funds to the order of the Company, or, with respect to the Option Shares, to
the order of the respective Selling Shareholders, or, at the sole option of
Tejas Securities Group, Inc., by wire transfer of immediately available funds to
an account designated by the Company, or, with respect to the Option Shares, the
respective Selling Shareholders. The Company, and with respect to the Option
Securities, the Selling Shareholders and the Company, will cause the
certificates for the Offered Securities to be purchased by the Underwriters
hereunder to be made available for checking and packaging at least twenty-four
(24) hours prior to each Closing Date (as defined in Section 4(c) below) with
respect thereto at the office of DTC or its designated custodian (the
"Designated Office"). The time and date of such delivery and payment shall be,
with respect to the Firm Securities, 8:30 a.m., City of Dallas time, on
September ____, 1998, or such other time and date as Tejas Securities Group,
Inc. and the Company may agree upon in writing, and, with respect to the Option
Securities, 8:30 a.m., City of Dallas time, on the date specified by Tejas
Securities Group, Inc. in the Underwriters' election to purchase such Option
Securities, or such other time and date as Tejas Securities Group, Inc., the
Company and the Selling Shareholders may agree upon in writing. Such time and
date for delivery of the Firm Securities is herein called the "First Closing
Date," such time and date for delivery for the Option Securities, if not the
First Closing Date, is herein called the "Option Closing Date," and each such
time and date for delivery is herein called a "Closing Date." The documents to
be delivered on each Closing Date by or on behalf of the parties hereto pursuant
to the terms and provisions of this Agreement, including the cross receipt for
the Offered Securities and any additional documents requested by the
Representatives pursuant to the terms and provisions hereof, will be delivered
at the offices of Xxxxxxxx Xxxxxxxx & Xxxxxx P.C., 5400 Renaissance Tower, 0000
Xxx Xxxxxx, Xxxxxx, Xxxxx 00000 (the "Closing Location"), and the Offered
Securities will be delivered at the Designated Office, all on each such Closing
Date. A meeting will be held at the Closing Location at 9:00 a.m., City of
Dallas time, on the New York Business Day next preceding such Closing Date, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4(c), "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close. Time shall be of the essence and delivery at the time
and place specified in this Agreement is a further condition to the obligations
of the Underwriters. It is understood that each of the Representatives, each
individually and not as representatives of the several Underwriters, may (but
shall not be obligated to) make any and all payments required pursuant to this
Section 4 on behalf of any Underwriters whose check or checks shall not have
been received by the Representatives at the time of delivery of the Offered
Securities to be purchased by such Underwriter or Underwriters. Any such payment
by you shall not relieve any such Underwriter or Underwriters of any of its or
their obligations hereunder. It is understood that the Underwriters propose to
offer the Offered Securities to be purchased hereunder to the public upon the
terms and conditions set forth in the Registration Statement, after the
Registration Statement becomes effective.
(d) On the First Closing Date, the Company shall issue and sell to the
Underwriters the Underwriters' Warrants. The total purchase price of the
Underwriters' Warrants shall be $100.00. The Underwriters' Warrants shall be
exercisable for a period of four (4) years commencing twelve (12) months from
the Effective Date, to purchase 75,000 Units at $______ per Unit. The
Underwriters' Warrant Agreement, including the forms of Underwriters' Warrant
Certificates, shall be substantially in the form filed as Exhibit 1.2 to the
Registration Statement. Payment for the Underwriters' Warrants shall be made to
the Company on the First Closing Date.
-1-
5. PUBLIC OFFERING BY THE UNDERWRITER. The Representatives agree to cause the
Firm Securities to be offered to the public initially at the prices and under
the terms set forth in the Prospectus as soon, on or after the effective date of
this Agreement, as the Representatives deem advisable. The Representatives may
allow such concessions and discounts upon sales to other dealers as set forth in
the Prospectus.
6. COVENANTS OF THE COMPANY. The Company covenants and agrees with
the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration Statement to
become effective as promptly as possible. If required, the Company will file the
Prospectus and any amendment or supplement thereto with the Commission in the
manner and within the time period required by Rules 434 and 424(b) under the
Act. Upon notification from the Commission that the Registration Statement has
become effective, the Company will so advise you and will not at any time,
whether before or after the Effective Date, file the Prospectus or any amendment
to the Registration Statement or supplement to the Prospectus of which you shall
not previously have been advised and furnished with a copy or to which the
Representatives or counsel to the Underwriters shall have objected in writing or
which is not in compliance with the Act and the Rules and Regulations. At any
time prior to the later of (i) the completion by all of the Underwriters of the
distribution of the Units contemplated hereby (but in no event more than nine
(9) months after the Effective Date) and (ii) twenty-five (25) days after the
Effective Date, the Company will prepare and file with the Commission, promptly
upon your request, any amendments or supplements to the Registration Statement
or Prospectus which, in your opinion, may be necessary or advisable in
connection with the distribution of the Units. As soon as the Company is advised
thereof, the Company will advise you, and confirm the advice in writing, of the
receipt of any comments of the Commission, of the effectiveness of any
post-effective amendment to the Registration Statement, of the filing of any
supplement to the Prospectus or any amended Prospectus, of any request made by
the Commission for amendment of the Registration Statement or for supplementing
of the Prospectus or for additional information with respect thereto, of the
issuance by the Commission or any state or regulatory body of any stop order or
other order or threat thereof suspending the effectiveness of the Registration
Statement or any order preventing or suspending the use of any Preliminary
Prospectus, or of the suspension of the qualification of any of the Offered
Securities for offering in any jurisdiction, or of the institution of any
proceedings for any of such purposes, and will use its best efforts to prevent
the issuance of any such order, and, if issued, to obtain as soon as possible
the lifting thereof. The Company has caused to be delivered to you copies of
each Preliminary Prospectus, and the Company has consented and hereby consents
to the use of such copies for the purposes permitted by the Act. The Company
authorizes the Underwriters and dealers to use the Prospectus in connection with
the sale of the Units for such period as in the opinion of counsel to the
Underwriters the use thereof is required to comply with the applicable
provisions of the Act and the Rules and Regulations. In case of the happening,
at any time within such period as a Prospectus is required under the Act to be
delivered in connection with sales by an underwriter or dealer of any event of
which the Company has knowledge and which materially affects the Company or the
securities of the Company, or which in the opinion of counsel for the Company or
counsel for the Underwriters should be set forth in an amendment of the
Registration Statement or a supplement to the Prospectus in order to make the
statements therein not then misleading, in light of the circumstances existing
at the time the Prospectus is required to be delivered to a purchaser of the
Units or in case it shall be necessary to amend or supplement the Prospectus to
comply with law or with the Rules and Regulations, the Company will notify you
promptly and forthwith prepare and furnish to you copies of such amended
Prospectus or of such supplement to be attached to the Prospectus, in such
quantities as you may reasonably request, in order that the Prospectus, as so
amended or supplemented, will not contain any untrue statement of a material
fact or omit to state any material facts necessary in order to make the
statements in the Prospectus, in the light of the circumstances under which they
are made, not misleading. The preparation and furnishing of any such amendment
or supplement to the Registration Statement or amended Prospectus or supplement
to be attached to the Prospectus shall be without expense to the Underwriters,
except that in case any Underwriter is required, in connection with the sale of
the Units to deliver a Prospectus nine (9) months or more after the Effective
Date, the Company will upon request of and at the expense of the applicable
Underwriter, amend or supplement the Registration Statement and Prospectus and
furnish the applicable Underwriter with reasonable quantities of prospectuses
complying with Section 10(a)(3) of the Act. The Company will comply with the
Act, the Rules and Regulations and the Exchange Act and the rules and
regulations thereunder in connection with the offering and issuance of the
Units. Within the time during which the Prospectus is required to be delivered
under the Act, or pursuant to the undertakings of the Company in the
Registration Statement, the Company will comply, at its own expense, with all
requirements imposed upon it by the Act, the Rules and Regulations, the Exchange
Act or the rules and regulations of the Commission promulgated under the
Exchange Act, each as now or hereafter amended or supplemented, and by any order
of the Commission so far as necessary to permit the continuance of sales of, or
dealings in, the Registered
Securities.
(b) The Company will use its best efforts to qualify to register the Units for
sale under the securities or "blue sky" laws of such jurisdictions as the
Representatives may designate and will make such applications and furnish such
information as may be required for that purpose and to comply with such laws,
provided the Company shall not be required to qualify as a foreign corporation
or a dealer in securities or to execute a general consent of service of process
in any jurisdiction in any action other than one arising out of the offering or
sale of the Units. The Company will, from time to time, prepare and file such
statements and reports as are or may be required to continue such qualification
in effect for so long a period as the Representatives may reasonably request.
(c) Prior to the completion of this offering, the Company will make all filings
required to (i) cause a registration statement under the Exchange Act to be
declared effective concurrently with the completion of this offering and will
notify the Representative in writing immediately upon the effectiveness of such
registration statement, (ii) obtain a listing of the Units, Common Stock and
Redeemable Warrants on The Nasdaq SmallCap Market and will use its best efforts
to maintain such listing for at least five (5) years from the date of this
Agreement, and (iii) if requested by the Representatives, to obtain and keep
current a listing in the Standard & Poors or Xxxxx'x Industrial OTC Manual.
(d) For so long as the Company is a reporting company under either Section 12(g)
or 15(d) of the Exchange Act, the Company, at its expense, will furnish to its
shareholders an annual report (including financial statements audited by
independent public accountants), in reasonable detail and at its expense, and
will furnish tothe Representatives during the period ending five (5) years from
the date hereof, (i) copies of each annual report of the Company; (ii) a copy of
any Schedule 13D, 13G, 14D-1, 13E-3 or 13E-4 received or filed by the Company
from time to time; (iii) a copy of any annual, quarterly or current report filed
by the Company pursuant to the Exchange Act; (iv) copies of all statements,
documents or other information which the Company shall mail or otherwise make
available to any class of its security holders, or shall file with the
Commission or with any exchange upon which the securities issued by the Company
shall then be listed or registered; and (v) such other publicly available
information as the Representatives may from time to time request.
(e) The Company will deliver to the Representatives at or before the First
Closing Date two (2) manually signed copies of the Registration Statement
including all financial statements and exhibits filed therewith, and of all
amendments thereto, and will deliver to the Underwriters such number of
conformed copies of the Registration Statement, including such financial
statements but without exhibits, and of all amendments thereto, as the
Underwriters may reasonably request. The copies of the Registration Statement
and each amendment thereto furnished to the Underwriters will be identical to
the electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T. The signed copies of
the Registration Statement so furnished to the Representatives will include
signed copies of any and all consents and reports of the independent public
auditors as to the financial statements included in the Registration Statement
and Prospectus, and signed copies of any and all consents and certificates of
any other person whose profession gives authority to statements made by them and
who are named in the Registration Statement or Prospectus as having prepared,
certified or reviewed any parts thereof.
The Company will deliver to or upon the order of the Underwriters, from time to
time until the Effective Date, as many copies of any Preliminary Prospectus
filed with the Commission prior to the Effective Date as the Underwriters may
reasonably request. The Company will deliver to the Underwriters on the
Effective Date and thereafter for so long as a Prospectus is required to be
delivered under the Act, from time to time, as many copies of the Prospectus, in
final form, or as thereafter amended or supplemented, as the Underwriters may
from time to time reasonably request. The Company, not later than (i) 5:00 p.m.,
New York City time, on the date of determination of the public offering price,
if such determination occurred at or prior to 12:00 noon, New York City time, on
such date or (ii) 6:00 p.m., New York City time, on the business day following
the date of determination of the public offering price, if such determination
occurred after 12:00 noon, New York City time, on such date, will deliver to the
Underwriters, without charge, as many copies of the Prospectus and any amendment
or supplement thereto as the Underwriters may reasonably request for purposes of
confirming orders that are expected to settle on the First Closing Date. The
Prospectus and each Preliminary Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(f) The Company will make generally available to its security holders and to the
registered holders of its Redeemable Warrants and deliver to the Representatives
as soon as it is practicable to do so but in no event later than ninety (90)
days after the end of twelve (12) months after its current fiscal quarter, an
earnings statement (which need not be audited) covering a period of at least
twelve (12) consecutive months beginning after the Effective Date, which shall
satisfy the requirements of Section 11(a) of the Act.
(g) The Company will apply the net proceeds from the sale of the Units for the
purposes set forth under "Use of Proceeds" in the Prospectus, and will file such
reports with the Commission with respect to the sale of the Units and the
application of the proceeds therefrom as may be required pursuant to Rule 463
under the Act.
(h) The Company on the First Closing Date will sell to the Underwriter the
Underwriters' Warrants according to the terms specified in Section 4(c) hereof.
The Company has reserved and shall continue to reserve a sufficient number of
shares of Common Stock for issuance upon exercise of the Underwriters' Warrants
and the Redeemable Warrants.
(i) For the five (5) year period following the First Closing Date, the Company
agrees that the Representatives shall have the right to designate for
nomination, and the Company shall use its best efforts to cause the election of,
one member of the Company's Board of Directors (the "Board"), who shall be
reasonably acceptable to the Company; alternatively, the Representatives may
designate an observer, who shall be entitled to attend all meetings of the Board
and to receive all copies of all notices and other documents distributed to the
members of the Board (including, but not limited to, any unanimous consents
prepared and advance notices of all proposed Board actions or consents), as if
such observer were a member of the Board. To the extent permitted by law, the
Company agrees to indemnify and hold the designee (as a director or advisor) and
the Representatives harmless against any and all claims, actions, awards and
judgments arising out of such designee's service. The Company shall immediately
after the First Closing Date use its reasonable best efforts to obtain
directors' and officers' liability insurance in amounts reasonable and customary
for similarly situated companies, at a premium that the Company can reasonably
afford. In the event the Company maintains a liability insurance policy
affording coverage for the acts of its officers and directors, it will, if
possible, include the Representatives and their designee (as a director) as
insureds under such policy. The rights and benefits of such indemnification and
the benefits of such insurance shall, to the extent possible, extend to the
Representatives insofar as they may be, or be alleged to be, responsible for
such advisor. The Company will deliver, on or before the date hereof, the
agreements of each of its officers, directors and holders of 5% or more of its
Common Stock to vote, during the five (5) year period commencing on the First
Closing Date, for the election of the Representatives' designee for director, if
any.
(j) The Company will maintain insurance in full force and effect of the types
and in the amounts adequate for its business and in line with insurance
maintained by similar companies and businesses, including but not limited to,
personal injury and product liability insurance and insurance covering all
personal property owned or leased by the Company against theft, damage,
destruction, acts of vandalism and all other risks customarily insured against.
(k) During the course of the distribution of the Offered Securities, the Company
will not 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 prices of the Units, Common Stock and/or Redeemable
Warrants. During the so-called "quiet period" in which delivery of a prospectus
is required, if applicable, the Company will not issue press releases or engage
in any other publicity regarding the Company, its business or any terms of the
offering contemplated hereby, without the prior written consent of the
Representatives. During such period, copies of all documents which the Company
or its public relations advisors intend to distribute will be provided to the
Representatives for review prior to such distribution.
(l) The Company will, promptly upon your request, prepare and file with the
Commission any amendments or supplements to the Registration Statement,
Preliminary Prospectus or Prospectus and take any other action, which in the
reasonable opinion of counsel to the Underwriters, may be reasonably necessary
or advisable in connection with the distribution of the Offered Securities, and
will use its best efforts to cause the same to become effective as promptly as
possible.
(m) On each Closing Date, all transfer or other taxes (other than income taxes)
which are required to be paid in connection with the sale and transfer of the
Registered Securities will have been fully paid by the Company and all laws
imposing such taxes will have been fully complied with.
(n) Subsequent to the dates as of which information is given in the Registration
Statement and Prospectus and prior to each Closing Date, except as disclosed in
or contemplated by the Registration Statement and Prospectus, (i) the Company
will not have incurred any liabilities or obligations, direct or contingent, or
entered into any material transactions other than in the ordinary course of
business; (ii) there shall not have been any change in the capital stock, funded
debt (other than regular repayments of principal and interest on existing
indebtedness) or other securities of the Company, any adverse change in the
condition (financial or otherwise), business, operations, income, net worth or
properties, including any loss or damage to the properties of the Company
(whether or not such loss is insured against), which would or could be
reasonably expected to result in a Material Adverse Effect; and (iii) the
Company shall not have paid or declared any dividend or other distribution on
its Common Stock or its other securities or redeemed or repurchased any of its
Common Stock or other securities. The Company shall furnish to the Underwriter
as early as practicable prior to each of the date hereof, the First Closing Date
and each Option Closing Date, if any, but no later than two (2) full business
days prior thereto, a copy of the latest available unaudited interim financial
statements of the Company (which in no event shall be as of a date more than
sixty (60) days prior to the date of the Registration Statement) which have been
reviewed by the Company's independent public accountants, as stated in their
letters to be furnished pursuant to Section 8(g) hereof
(o) Xxxxxxx X. Xxxxx shall be Co-Chairman of the Board and Chief Executive
Officer of the Company on each Closing Date, and Xxxxxxx Xxxxxxx shall be
Co-Chairman of the Board and Executive Vice President of the Company on each
Closing Date. The Company will obtain key person life insurance on the lives of
Messrs. Xxxxx and Xxxxxxx in an amount of not less than One Million Dollars
($1,000,000) for each of them and will use its best efforts to maintain such
insurance during the five (5) year period commencing with the First Closing Date
unless his employment with the Company is earlier terminated. In such event, the
Company will obtain a comparable policy on the life of his successor for the
balance of the five (5) year period. For a period of twelve(12) months from the
First Closing Date, the compensation of the executive officers of the Company
shall not be increased from the compensation levels disclosed in the Prospectus.
(p) So long as any Redeemable Warrants are outstanding, the Company shall use
its best efforts to cause post-effective amendments to the Registration
Statement to become effective in compliance with the Act and without any lapse
of time between the effectiveness of any such post-effective amendments and
cause a copy of each Prospectus, as then amended, to be delivered to each holder
of record of a Redeemable Warrant and to furnish to each Underwriter and dealer
as many copies of each such Prospectus as such Underwriter or dealer may
reasonably request. The Company shall not call for redemption any of the
Redeemable Warrants unless a registration statement covering the securities
underlying the Redeemable Warrants has been declared effective by the Commission
and remains current at least until the date fixed for redemption. In addition,
for so long as any Redeemable Warrant is outstanding, the Company will promptly
notify the Representative of any material change in the business, financial
condition or prospects of the Company.
(q) Upon the exercise of any Redeemable Warrants after one (1) year from the
Effective Date, the Company will pay the Representatives, each individually and
not as representatives of the Underwriters, a fee of 5% of the aggregate
exercise price of the Redeemable Warrants, of which a portion may be reallowed
to the dealer who solicited the exercise (which may also be a Representative) if
(i) the market price of the Company's Common Stock is greater than or equal to
the exercise price of the Redeemable Warrants on the date of exercise; (ii) the
exercise of the Redeemable Warrants was solicited by a member of the NASD, (iii)
the holder of the Redeemable Warrants so exercised designates in writing that
the exercise of the Redeemable Warrant was solicited by a member of the NASD and
designates in writing the Representative or other broker-dealer to receive
compensation for such exercise; (iv) the Redeemable Warrants are not held in a
discretionary account (except where prior specific approval for exercise is
received from the customer exercising the Redeemable Warrants); (v) the
disclosure of compensation arrangements has been made in documents provided to
customers, both as part of the original offering and at the time of exercise,
and (vi) the solicitation of exercise of the Redeemable Warrants was not in
violation of Regulation M promulgated under the Exchange Act. The Company agrees
not to solicit the exercise of any Redeemable Warrants other than through the
Representatives and will not authorize any other dealer to engage in such
solicitation without the prior written consent of the Representatives.
(r) For a period of five (5) years from the Effective Date the Company, at its
expense, shall cause its regularly engaged independent certified public
accountants to review (but not audit) the Company's financial statements for
each of the first three (3) fiscal quarters prior to the announcement of
quarterly financial information, the filing of the Company's 10-Q quarterly
report and the mailing of quarterly financial information to shareholders.
(s) The Company maintains and will continue to maintain a system of internal
accounting controls sufficient to provide reasonable assurances that: (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary in order to permit
preparation of financial statements in accordance with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(t) The Company agrees that for so long as the Common Stock is registered under
the Exchange Act, the Company will hold an annual meeting of shareholders for
the election of directors within 180 days after the end of each of the Company's
fiscal years and, within 150 days after the end of each of the Company's fiscal
years, will provide the Company's shareholders with the audited financial
statements of the Company as of the end of the fiscal year just completed prior
thereto. Such financial statements shall be those required by applicable rules
under the Exchange Act and shall be included in an annual report pursuant to the
requirements thereof.
(u) The Company shall cause each director and officer of the Company and certain
other stockholders, including the Selling Shareholders, to enter into an
agreement with the Underwriter pursuant to which he, she or it will agree not to
sell or otherwise transfer any securities of the Company for a period of one (1)
year following the Effective Date without the prior consent of the
Representatives.
(v) As promptly as practicable after the Closing Date, the Company will prepare,
at its own expense, hard cover "bound volumes" relating to the offering, and
will distribute at least four (4) of such volumes to the individuals designated
by the Representatives or counsel to the Underwriters.
(w) The Company shall, for a period of six (6) years after date of this
Agreement, submit such reports to the Secretary of the Treasury and to
shareholders, as the Secretary may require, pursuant to Section 1202 of the
Internal Revenue Code, as amended, or regulations promulgated thereunder, in
order for the Company to qualify as a "small business" so that stockholders may
realize special tax treatment with respect to their investment in the Company.
7. COVENANTS OF THE SELLING SHAREHOLDERS. Each Selling Shareholder further
covenants and agrees with each Underwriter:
(a) Such Selling Shareholder will not, without the prior written consent of the
Representatives (which consent may be withheld in their sole discretion),
directly or indirectly, sell, offer, contract or grant any option to sell
(including without limitation any short sale), pledge, transfer, establish an
open "put equivalent position" within the meaning of Rule 16a-1(h) under the
Exchange Act, or otherwise dispose of any shares of Common Stock, options or
warrants to acquire shares of Common Stock, or securities exchangeable or
exercisable for or convertible into shares of Common Stock currently or
hereafter owned either of record or beneficially (as defined in Rule 13d-3 under
the Exchange Act) by such Selling Shareholder, or publicly announce suchSelling
Shareholder's intention to do any of the foregoing, for a period commencing on
the date hereof and continuing through the close of trading on the date ninety
(90) days after the date of the Prospectus.
(b) Such Selling Shareholder will deliver to the Underwriters prior to the First
Closing Date a properly completed and executed United States Treasury Department
Form W-8 (if the Selling Shareholder is a non-United States person) or Form W-9
(if the Selling Shareholder is a United States Person). The Representatives may,
in their sole discretion, waive in writing the performance by the Company or any
Selling Shareholder of any one or more of the foregoing covenants or extend the
time for their performance.
-1- 8. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of the
Underwriters to purchase and pay for the Units which it has agreed to purchase
hereunder, are subject to the accuracy (as of the date hereof, and as of each
Closing Date) of and compliance with the representations and warranties of the
Company herein, to the performance by the Company of its obligations hereunder,
and to the following conditions:
(a) The Registration Statement, including any 462(b) Registration Statement,
shall have become effective and you shall have received notice thereof not later
than 10:00 A.M., Dallas time, on the date on which the amendment to the
registration statement originally filed with respect to the Offered Securities
or to the Registration Statement, as the case may be, containing information
regarding the initial public offering price of the Units has been filed with the
Commission, or such later time and date as shall have been agreed to by the
Representatives; if required, the Prospectus and any amendment or supplement
thereto shall have been filed with the Commission in the manner and within the
time period required by Rule 434 and 424(b) under the Act; on or prior to each
Closing Date no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that or a similar
purpose shall have been instituted or shall be pending or, to the best knowledge
of the Representatives and the Company, shall be contemplated by the Commission;
qualification under the securities laws of such states as the Representatives
may designate of the issue and sale of the Offered Securities upon the terms and
conditions herein set forth or contemplated and containing no provision
unacceptable to the Representatives shall have been secured; and no stop order
shall be in effect denying or suspending effectiveness of such qualifications,
nor shall any stop order proceedings with respect thereto be instituted or
pending or, to the best knowledge of the Company and the Representatives,
threatened under such laws. If the Company has elected to rely upon Rule 430A of
the Rules and Regulations, the price of the Units and any price-related
information previously omitted from the effective Registration Statement
pursuant to such Rule 430A shall have been transmitted to the Commission for
filing pursuant to Rule 424(b) of the Rules and Regulations within the
prescribed time period, and prior to the First Closing Date the Company shall
have provided evidence satisfactory to the Representatives of such timely
filing, or a post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the requirements of
Rule 430A of the Rules and Regulations; any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters;
-1- (b) No amendments to the Registration Statement, any Preliminary Prospectus
or the Prospectus to which the Representatives or counsel for the Underwriters
shall have objected, after having received reasonable notice of a proposal to
file the same, shall have been filed.
(c) The Representatives shall not have discovered and disclosed to the
Company prior to the respective Closing Dates that the Registration Statement or
the Prospectus, or any amendment or supplement thereto, contains an untrue
statement of fact which, in the reasonable opinion of counsel for the
Underwriters, is material, or omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein or is necessary
to make the statements therein not misleading.
(d) At the First Closing Date, the Representatives shall have
received the opinion, together with copies of such opinion for each of the
other Underwriters, dated as of the First Closing Date, of Xxxx Xxxx Xxxxx &
Xxxxx LLP, counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, to the
effect that:
(i) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Georgia, with full
corporate power and authority to own its properties and conduct its business as
described in the Registration Statement and Prospectus and is duly qualified to
do business as a foreign corporation and is in good standing in all other
jurisdictions in which the nature of its business or the character or location
of its properties requires such qualification, except where the failure to so
qualify will not have a Material Adverse Effect;
(ii) the authorized capitalization of the Company as of __________________, 1998
is as set forth in the Prospectus under "Capitalization"; all shares of issued
and outstanding capital stock of the Company set forth thereunder have been duly
authorized, validly issued, and are fully paid and non-assessable and conform to
the description thereof contained in the Prospectus; to the best of such
counsel's knowledge, the outstanding shares of Common Stock of the Company have
not been issued in violation of the preemptive rights of any shareholder and the
shareholders of the Company do not have any statutory preemptive rights to
subscribe for or to purchase, nor are there any restrictions upon the voting or
transfer of any of the Common Stock; the Registered Securities, the Public
Warrant Agreement and the Underwriters' Warrant Agreement conform as to legal
matters in all material respects to the respective descriptions thereof
contained in the Prospectus; the Shares have been, and the Public Warrant Shares
and Underwriters' Warrant Shares upon issuance in accordance with the terms of
the Public Warrants and the Public Warrant Agreement and the Underwriters'
Warrants and the Underwriters' Warrant Agreement, respectively, have been duly
authorized and, when issued and delivered, will be duly and validly issued,
fully paid, non-assessable, free of preemptive rights and no personal liability
will attach to the ownership thereof; a sufficient number of shares of Common
Stock has been reserved for issuance upon exercise of the Redeemable Warrants,
Underwriters' Warrants and Underwriters' Redeemable Warrants, and to the best of
such counsel's knowledge, neither the filing of the Registration Statement nor
the offering or sale of the Registered Securities as contemplated by this
Agreement gives rise to, any registration rights or other rights, other than
those which have been waived or satisfied, for or relating to the registration
of any shares of Common Stock;
(iii) this Agreement, the Public Warrant Agreement and the Underwriters' Warrant
Agreement have been duly and validly authorized, executed and delivered by the
Company and, assuming due execution by each other party hereto or thereto, each
constitutes a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application relating to or
affecting enforcement of creditors' rights and the application of equitable
principles in any action, legal or equitable, and except as rights to indemnity
or contribution may be limited by applicable law;
(iv) the certificates evidencing the shares of Common Stock are in valid and
proper legal form; the Public Warrants and the Underwriters' Warrants will be
exercisable for shares of Common Stock in accordance with their terms and at the
prices therein provided for;
(v) delivery of certificates for the Shares and Redeemable Warrants underlying
the Units, upon payment therefor by the Underwriters as provided in this
Agreement, will transfer valid title to such securities to the Underwriters;
and, upon payment for such securities, the Underwriters will acquire such
securities free and clear of any liens;
(vi) such counsel knows of no pending or threatened legal or governmental
proceedings to which the Company is a party which could materially adversely
affect the business, property, financial condition or operations of the Company;
or which question the validity of the Registered Securities, this Agreement, the
Public Warrant Agreement or the Underwriters' Warrant Agreement, or of any
action taken or to be taken by the Company pursuant to such agreements; and no
such proceedings are known to such counsel to be contemplated against the
Company;
(vii) to such counsel's knowledge there are no governmental proceedings or
regulations required to be described or referred to in the Registration
Statement which are not so described or referred to;
(viii) the execution and delivery of this Agreement, the Public Warrant
Agreement and the Underwriters' Warrant Agreement, and the incurrence of the
obligations herein and therein set forth and the consummation of the
transactions herein or therein contemplated, will not result in a breach or
violation of, or constitute a default under, the Amended and Restated Articles
of Incorporation or Bylaws, any bond, debenture, note or other evidence of
indebtedness or in any contract, indenture, mortgage, loan agreement, lease,
joint venture or other agreement or instrument which is filed as an exhibit to
the Registration Statement, or of any material order, writ, injunction, or
decree of any government, governmental instrumentality or court, domestic or
foreign applicable to the Company;
(ix) the Registration Statement has become effective under the Act, and to the
best of such counsel's knowledge, no stop order suspending the effectiveness of
the Registration Statement is in effect, and no proceedings for that purpose
have been instituted or are pending before, or threatened by, the Commission;
the Registration Statement and the Prospectus (except for the financial
statements and other financial data contained therein, or omitted therefrom, 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;
(x) such counsel has participated in the preparation of the Registration
Statement and the Prospectus and, although such counsel did not independently
verify and is not passing upon and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus, based upon such participation,
nothing has come to the attention of such counsel to cause such counsel to have
reason to believe that the Registration Statement or any amendment thereto at
the time it became effective contained any untrue statement of a material fact
required to be stated therein or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
that the Prospectus or any supplement thereto contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make
statements therein, in light of the circumstances under which they were made,
not misleading (except, in the case of both the Registration Statement and any
amendment thereto and the Prospectus and any supplement thereto, for the
financial statements, notes thereto and other financial information and
schedules contained therein as to which such counsel need express no opinion);
-1-
(xi) all descriptions in the Registration Statement and the Prospectus, and any
amendment or supplement thereto, of contracts and other documents are accurate
and fairly summarize in all material respects the information required to be
disclosed, and such counsel is familiar with all contracts and other documents
referred to in the Registration Statement and the Prospectus and any such
amendment or supplement or filed as exhibits to the Registration Statement, and
such counsel does not know of any contracts or documents of a character required
to be summarized or described therein or to be filed as exhibits thereto which
are not so summarized, described or filed;
(xii) no authorization, approval, consent, or license of any governmental or
regulatory authority or agency is necessary in connection with the
authorization, issuance, transfer, sale or delivery of the Registered Securities
by the Company, in connection with the execution, delivery and performance of
this Agreement by the Company or in connection with the taking of any action
contemplated herein, other than registrations or qualifications of the
Registered Securities under applicable state or foreign securities or blue sky
laws and registration under the Act all of which have been obtained;
(xiii) the statements in the Registration Statement under the captions
"Business," "Management," "Shares Eligible for Future Sale," "Certain
Transactions," Securities" and in Part II, Item 26, have been reviewed by such
counsel and, insofar as they refer to descriptions of agreements, statements of
law, descriptions of statutes, licenses, rules or regulations or legal
conclusions, are correct in all material respects;
(xiv) the offers and sales of the Company's Common Stock by the Selling
Shareholders referred to under the caption "Certain Transactions" were exempt
from the registration requirements of the Securities Act and were exempt from
the registration or qualification requirements of the securities laws of each
state in which such offers and sales were made, and such offers and sales do not
have to be integrated with the offer and sale of the Units pursuant to the
Registration Statement; and
(xv) based solely upon advice of representatives of Nasdaq, the Units, the
Common Stock and the Warrants have been duly authorized for quotation on The
Nasdaq SmallCap Market. Such counsel need express no opinion with respect to the
financial statements and other financial data included in or omitted from the
Registration Statement or Prospectus. Such opinion shall also cover such matters
incident to the transactions contemplated hereby as the Representatives or
counsel for the Underwriters shall reasonably request. In rendering such
opinion, such counsel may rely upon certificates of any officer of the Company
or public officials as to matters of fact original copies of which shall be
delivered to the Representatives at the First Closing and the Option Closing as
the case may be; and may rely as to all matters of law other than the law of the
United States or of the State of Georgia upon opinions of counsel satisfactory
to you, in which case the opinion shall state that they have no reason to
believe that you and they are not entitled to so rely.
(e) All corporate proceedings and other legal matters relating to this
Agreement, the Registration Statement, the Prospectus and other related matters
shall be satisfactory to or approved by counsel to the Underwriters.
(f) The Representatives shall have received a letter from Xxxxx Xxxxxxxx LLP,
independent public accounts for the Company, prior to the execution and delivery
of this Agreement, and dated the date of this Agreement, substantially in the
form attached as Annex I hereto and satisfactory to the Representatives,
together with signed or reproduced copies of such letter for each of the other
Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
-1-
(g) At the First Closing Date, the Representatives shall have
received from Xxxxx Xxxxxxxx LLP a letter, dated as of the First Closing Date,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to paragraph (f) of this Section, except that the specified date
referred to shall be a date
not more than five days prior to the First Closing Date.
-1-
(h) The Representatives shall have received a certificate, dated
and delivered as of the date of the First Closing Date, of the Chief
Executive Officer and Secretary of the Company stating that:
-1-
(i) The Company has complied with all the agreements and
satisfied all the conditions on
their respective part to be performed or satisfied hereunder at or
prior to such date, including but not limited to the
agreements and covenants of the Company set forth in Section
6 hereof.
-1-
(ii) No stop order suspending the effectiveness of the Registration Statement
has been issued, and no proceedings for that purpose have been instituted or are
pending, contemplated or threatened under the Act.
-1-
(iii) Such officers have carefully examined the Registration Statement and the
Prospectus and any supplement or amendment thereto, each contains all statements
required to be stated therein or necessary to make the statements therein not
misleading and does not contain any untrue statement of a material fact, and
since the Effective Date there has occurred no event required to be set forth in
the amended or supplemented prospectus which has not been set forth.
-1-
(iv) As of the date of such certificate, the
representations and warranties contained in Section 2 hereof are true and
correct as if such representations and warranties were made in their entirety
on
the date of such certificate, and
the Company has complied with
all its agreements herein
contained as of the date
hereof.
-1-
(v) Subsequent to the respective dates as of which information is given in the
Registration Statement and Prospectus, and except as contemplated in the
Prospectus, the Company has not incurred any liabilities or obligations, direct
or contingent, or entered into any material transactions and there has not been
any change in the Common Stock or funded debt of the Company or any adverse
change in the condition (financial or otherwise), business, operations, income,
net worth, properties or prospects of the Company.
-1-
(vi) Subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, the Company has not sustained any
material loss of or damage to its properties, whether or not insured, and since
such respective dates, no dividends or distributions whatever shall have been
declared or paid, or both, on or with respect to any security (except interest
in respect of loans) of the Company.
-1-
(vii) Neither the Company nor any of its officers or affiliates has taken any
action designed to, or which might reasonably be expected to, cause or result in
the stabilization or manipulation of the price of the Company's securities to
facilitate the sale or resale of the Offered Securities.
-1-
(viii) No action, suit or proceeding, at law or in equity, is pending or, to the
knowledge of such officers, threatened against the Company, or affecting any of
its properties, before or by any commission, board or other administrative
agency, except as otherwise set forth in the Registration Statement.
<
-1-
(i) All of the Units shall have been
tendered for delivery in accordance
with the terms and provisions of this
Agreement.
-1-
(j) On the date hereof, but prior to the execution and delivery
hereof, the Company and the Selling Shareholders shall have furnished for
review by the Representatives copies of the Powers of Attorney and Custody
Agreements executed by each of the Selling Shareholders and such further
information, certificates and documents
as the Representatives may reasonably request.
-1-
(k) The Underwriter shall have
received each of the lock-up
agreements referred to in
Section 6(bb) hereof.
-1-
(l) At each Closing Date, (i) the representations and warranties
of the Company (and the Selling Shareholders at the Option Closing Date)
contained in this Agreement shall be true and correct with the same
effect as if made on and as each Closing Date and the Company shall have
performed all its obligations due to be performed prior thereto; (ii) the
Registration Statement and the Prospectus and any amendment or supplement
thereto shall contain all statements which are required to be stated therein
in accordance with the Act and the Rules and Regulations and conform in
all material respects to the requirements thereof, and neither the
Registration Statement nor the Prospectus nor any amendment or supplement
thereto shall contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading; (iii) there shall have been, since
the date as of which information is given, no material adverse change in the
condition, business, operations, properties, business prospects,
securities, long-term or short-term debt or general affairs of the
Company from that set forth in the Registration Statement or the Prospectus,
except changes which the Registration Statement and the Prospectus
indicate will occur after the Effective Date and prior to such Closing Date,
and the Company shall not have incurred any material liabilities or
obligations, direct or contingent, or entered into any material transaction,
contract or agreement not in the ordinary course of business other than as
referred to in the Registration Statement and the Prospectus; and (iv) except
as set forth in the Prospectus, no action, suit or proceeding, at law or in
equity, shall be pending or threatened against the Company which might be
required to be set forth in the Registration Statement, and no proceedings
shall be pending or threatened against the Company before or by
any commission, board or administrative agency in the United States or
elsewhere, wherein an unfavorable decision, ruling or finding might adversely
affect the condition, business, operations, properties, prospects or
general affairs of the Company.
-1-
(m) Upon exercise of the Over-Allotment Option provided for in
Section 4(b) hereof, the obligations of the Underwriter to purchase and pay
for the Option Shares and/or the Redeemable Warrants will be subject to
the following additional conditions:
-1- (i) The Registration Statement shall remain effective at the Option Closing
Date, and no stop order suspending the effectiveness thereof shall have been
issued and no proceedings for that purpose shall have been instituted or shall
be pending, or, to the best knowledge of the Underwriter or the Company, shall
be contemplated by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the satisfaction of
counsel for the Underwriters.
-1-
(ii) At the Option Closing Date there shall have been
delivered to the Representatives the signed opinion of Xxxx Xxxx Xxxxx &
Xxxxx LLP, counsel for the Company, in form and substance reasonably
satisfactory to counsel for the Underwriters, which opinion shall be
substantially the same in scope and
substance as the opinions furnished to
the Representatives by such
counsel at the First Closing
Date pursuant to Section
8(d).
(iii) At the Option Closing Date the Representatives
shall have received the opinion,
together with copies of such opinion for each of the other Underwriters, dated
as of the Option Closing Date, of Xxxx Xxxx Xxxxx & Xxxxx LLP, counsel for
the Selling Shareholders in form and substance satisfactory to the
counsel for the Underwriters.
(iv) At the Option Closing Date there shall have been
delivered to the Representatives a certificate of the Chief Executive Officer
and the Secretary of the Company dated the Option Closing Date, in
form and substance satisfactory to counsel for the Underwriters, substantially
the same in scope and substance as the certificates furnished to the
Representatives at the First Closing Date pursuant to Section 8(h).
-1-
(v) At the Option Closing Date there shall have been
delivered to the Representatives a letter, in form and substance satisfactory
to the Representatives, from Xxxxx Xxxxxxxx LLP, dated the Option Closing
Date and addressed to the Representatives, substantially in the same form and
substance as the letter
furnished to the Representatives pursuant to Section 8(h) hereof, except that
the "specified date" in the letter furnished pursuant to this paragraph shall
be a date not more than five days prior to the Option Closing Date.
-1-
(vi) At the Option Closing Date there shall have been
delivered to the Representatives a
certificate executed by the
Attorney-in-Fact of each
Selling Shareholder, dated as
of the Option Closing Date, to
the effect that:
(A) the representations, warranties and covenants of
such Selling Shareholder set forth in Section 3 of this Agreement are
true and correct with the same force and effect as though expressly
made by such Selling Shareholder on and as of the Option Closing Date;
and
(B) such Selling Shareholder has complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied under this Agreement at or prior to the Option
Closing Date.
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(vii) All proceedings taken at or prior to the Option
Closing Date in connection with the sale and transfer of the Option Securities
shall be satisfactory in form and substance to the Representatives,
and the Representatives and counsel for the Underwriters, shall have been
furnished with all such documents, certificates, affidavits and opinions as
the Representatives and counsel for the Underwriters may reasonably request
in connection with this transaction in order to evidence the accuracy and
completeness of any of the
representations, warranties or statements of the Company or the Selling
Shareholders or compliance by the Company or the Selling
Shareholders with any of the covenants or conditions contained
herein.
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(n) The Company shall have executed and delivered the Public
Warrant Agreement and the Underwriters' Warrant Agreement, and
shall have issued the Underwriters' Warrants.
-1-
(o) The Company and the Selling Shareholders shall have furnished to
the Representatives such other certificates, documents, and opinions as
the Representatives may have reasonably requested (including
certificates from officers of the Company and from the Selling Shareholders) as
to the accuracy, at each Closing Date, of the representations and
warranties of the Company and the Selling Shareholders herein, as to the
performance by the Company and the Selling Shareholders of their respective
obligations hereunder and as to other conditions concurrent and
precedent to the obligations of the Underwriters hereunder.
The opinions and certificates mentioned above or elsewhere in this
Agreement will be deemed to be in compliance with the provisions hereof only
if they are reasonably satisfactory to the Representatives and to
counsel for the Underwriters.
Any certificate signed by an officer of the Company delivered to the
Representatives or to counsel for the Underwriters, will be deemed a
representation and warranty by the Company to the Representatives as to the
statements made therein.
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(p) No action shall have been taken by the Commission or the NASD the effect of
which would make it improper, at any time prior to each Closing Date, for
members of the NASD to execute transactions (as principal or agent) in the
Registered Securities and no proceedings for the taking of such action shall
have been instituted or shall be pending, or, to the knowledge of the
Underwriters or the Company, shall be contemplated by the Commission or the
NASD. The Company represents that at the date hereof it has no knowledge that
any such action is in fact contemplated by the Commission or the NASD. The
Company shall have advised the Representatives of any NASD affiliation of any of
its officers, directors, stockholders or their affiliates.
(q) If any of the conditions herein provided for in this Section 8
shall not have been fulfilled as of the date indicated, this Agreement and
all obligations of the Underwriters under this Agreement may be
canceled at, or at any time prior to, each Closing Date by
the Representatives. Any such cancellation shall
be without liability of the Underwriters to the
Company.
-1-
9. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. The obligation
of the Company to sell and deliver the Units, the Shares, the Redeemable
Warrants and the Underwriters' Warrants, is subject to the
condition that at each Closing Date, no stop orders suspending the
effectiveness of the Registration Statement shall have been issued under the
Act or any proceedings therefor initiated or threatened by the Commission. If
the condition to the obligations of the Company provided for in this Section 9
have been fulfilled on the First Closing Date but are not fulfilled after the
First Closing Date and prior to the Option Closing Date, then only
the obligation of the Company to
sell and deliver the Option
Securities on exercise of the
Over-Allotment Option shall be
10. INDEMNIFICATION.
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(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of the
Act against any losses, claims, damages or liabilities, joint or several (which
shall, for all purposes of this Agreement, include, but not be limited to, all
reasonable costs of defense and investigation and all attorneys' fees), to which
such Underwriter or such controlling person may become subject, under the Act or
otherwise, and will reimburse, as incurred, such Underwriter and such
controlling persons for any legal or other expenses reasonably incurred in
connection with investigating, defending against or appearing as a third party
witness in connection with any losses, claims, damages or liabilities, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in (A) the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto,
(B) 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 Units under the securities 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 in the
Registration Statement, any Preliminary Prospectus, Prospectus, or any amendment
or supplement thereto, or in any Blue Sky Application, a material fact required
to be stated therein or necessary to make the statements therein not misleading;
provided, however, that the Company will not be liable in any such case to the
extent, but only to the extent, that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of the Underwriters
specifically for use in the preparation of the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto,
or any such Blue Sky Application. This indemnity will be in addition to any
liability which the Company may otherwise have.
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(b) Each Underwriter, severally, but not jointly, will indemnify
and hold harmless the Company, each of its directors, each nominee (if any) for
director named in the Prospectus, each of its officers who have
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of the Act, against any losses, claims, damages
or liabilities (which shall, for all purposes of this Agreement,
include, but not be limited to, all costs of defense and investigation and
all attorneys' fees) to which the Company or any such director, nominee,
officer or controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the
Registration Statement,
anyPreliminary Prospectus, the Prospectus, or any amendment or supplement
thereto, 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 the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto (i) in reliance upon and in conformity with written
information furnished to the Company any Underwriter specifically for use in
the preparation thereof and (ii) relates to the transactions effected by the
Underwriters in connection with the offer and sale of the Public Securities
contemplated hereby. This indemnity agreement will be in addition to any
liability which the Underwriters may otherwise have.
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(c) Promptly after receipt by an indemnified party under this Section 10 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 10, notify in writing the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under this Section 10. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate in, and, to the
extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, subject to the provisions herein
stated, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section 10 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. The indemnified
party shall have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall not be at the expense of the indemnifying party ifthe indemnifying party
has assumed the defense of the action with counsel reasonably satisfactory to
the indemnified party; provided that if the indemnified party is an Underwriter
or a person who controls an Underwriter within the meaning of the Act, the fees
and expenses of such counsel shall be at the expense of the indemnifying party
if (i) the employment of such counsel has been specifically authorized in
writing by the indemnifying party or (ii) the named parties to any such action
(including any impleaded parties) include both the Underwriter or such
controlling person and the indemnifying party and in the judgment of the
applicable Underwriter, it is advisable for the applicable Underwriter or
controlling persons to be represented by separate counsel (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the applicable Underwriter or such controlling person, it being
understood, however, that the indemnifying party shall not, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys for the applicable Underwriter and controlling
persons, which firm shall be designated in writing by the applicable
Underwriter). No settlement of any action against an indemnified party shall be
made without the consent of the indemnifying party, which shall not be
unreasonably withheld in light of all factors of importance to such indemnifying
party.
11. CONTRIBUTION. In order to provide for just and equitable contribution under
the Act in any case in which (i) an Underwriter makes claim for indemnification
pursuant to Section 10 hereof but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case, notwithstanding the fact that
the express provisions of Section 10 provide for indemnification in such case,
or (ii) contribution under the Act may be required on the part of any
Underwriter, then the Company and each person who controls the Company, in the
aggregate, and any such Underwriter shall contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (which shall, for
all purposes of this Agreement, include, but not be limited to, all reasonable
costs of defense and investigation and all reasonable attorneys' fees) in either
such case (after contribution from others) in such proportions that all such
Underwriters are only responsible for that portion of such losses, claims,
damages or liabilities represented by the percentage that the underwriting
discount per Unit appearing on the cover page of the Prospectus bears to the
public offering price appearing thereon, and the Company shall be responsible
for the remaining portion, provided, however, that (a) if such allocation is not
permitted by applicable law then the relative fault of the Company and the
applicable Underwriter and controlling persons, in the aggregate, in connection
with the statements or omissions which resulted in such damages and other
relevant equitable considerations shall also be considered. The relative fault
shall be determined by reference to, among other things, whether in the case of
an untrue statement of a material fact or the omission to state a material fact,
such statement or omission relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Company and the Underwriters agree (a) that it would not be just and equitable
if the respective obligations of the Company and the Underwriters to contribute
pursuant to this Section 11 were to be determined by pro rata or per capita
allocation of the aggregate damages or by any other method of allocation that
does not take account of the equitable considerations referred to in the first
sentence of this Section 11 and (b) that the contribution of each contributing
Underwriter shall not be in excess of its proportionate share (based on the
ratio of the number of Units purchased by such Underwriter to the number of
Units purchased by all contributing Underwriters) of the portion of such losses,
claims, damages or liabilities for which the Underwriters are responsible. No
person guilty of a fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation. As used in this Section 11, the
word "Company" includes any officer, director, or person who controls the
Company within the meaning of Section 15 of the Act. If the full amount of the
contribution specified in this Section 11 is not permitted by law, then the
applicable Underwriter and each person who controls the applicable Underwriter
shall be entitled to contribution from the Company, its officers, directors and
controlling persons to the full extent permitted by law. The foregoing
contribution agreement shall in no way affect the contribution liabilities of
any persons having liability under Section 11 of the Act other than the Company
and the Underwriters. No contribution shall be requested with regard to the
settlement of any matter from any party who did not consent to the settlement;
provided, however, that such consent shall not be unreasonably withheld in light
of all factors of importance to such party.
12. COSTS AND EXPENSES.
(a) Whether or not this Agreement becomes effective or the sale of the
Units to the Underwriters is consummated, the Company will pay all costs and
expenses incident to the performance of this Agreement by the Company,
including, but not limited to, the fees and expenses of counsel to the Company
and of the Company's accountants; the costs and expenses incident to the
preparation, printing, filing and distribution under the Act of the Registration
Statement (including the financial statements therein and all amendments and
exhibits thereto), Preliminary Prospectus and the Prospectus, as amended or
supplemented; the fee of the NASD in connection with the filing required by the
NASD relating to the offering of the Units contemplated hereby; all expenses,
including the reasonable fees, not to exceed $25,000, and disbursements of
counsel to the Underwriters, in connection with the qualification of the Units
under the state securities or blue sky laws which the Representatives shall
designate; the cost of printing and furnishing to the Underwriters copies of the
Registration Statement, each Preliminary Prospectus, the Prospectus, this
Agreement, the Public Warrant Agreement, the Underwriters' Warrant Agreement,
the Agreement Among Underwriters, Selling Agreement, Underwriters'
Questionnaire, and the Blue Sky Memorandum and any supplements thereto; any fees
relating to the listing of the Units, Common Stock and Redeemable Warrants on
The Nasdaq SmallCap Market or any other securities exchange; the cost of
printing the certificates representing the securities comprising the Units; the
fees of the transfer agent and warrant agent the cost of publication of at least
three (3) "tombstones" of the offering (at least one of which shall be in
national business newspaper and one of which shall be in a major New York
newspaper); and the cost of preparing at least four (4) hard cover "bound
volumes" relating to the offering, in accordance with the Representatives'
request. The Company shall pay any and all taxes (including any transfer,
franchise, capital stock or other tax imposed by any jurisdiction) on sales to
the Underwriters hereunder. The Company will also pay all costs and expenses
incident to the furnishing of any amended Prospectus or of any supplement to be
attached to the Prospectus as called for in Section 6(a) of this Agreement
except as otherwise set forth in said Section 6(a).
(b) In addition to the foregoing expenses, the Company shall at the First
Closing Date pay to Tejas Securities Group, Inc., individually and not as a
representative of the Underwriters, a non-accountable expense allowance equal to
two percent (2%) of the gross proceeds derived from the sale of Units offered
hereby, of which $75,000 has been paid. In the event the Over-Allotment Option
is exercised, the Company shall pay to Tejas Securities Group, Inc.,
individually and not as a representative of the Underwriters, at the Option
Closing Date an additional amount non-accountable expense allowance equal to two
percent (2%) of the gross proceeds received upon exercise of the Over-Allotment
Option.
(c) In the event the transactions contemplated hereby are not consummated by
reason of any action by the Underwriters (except if such prevention is based
upon a breach by the Company of any covenant, representation or warranty
contained herein or because any other condition to the Underwriters' obligations
hereunder required to be fulfilled by the Company is not fulfilled) the Company
shall only be liable for the out-of-pocket accountable expenses actually
incurred by the Underwriters, including "blue sky" legal fees up to a maximum of
$25,000. In the event the transactions contemplated hereby are not consummated
by reason of any action of the Company or because of a breach by the Company of
any covenant, representation or warranty herein, the Company shall be liable
only for the out-of-pocket accountable expenses actually incurred by the
Underwriters. In the event the out-of-pocket accountable expenses actually
incurred by the Underwriters are less than the amounts paid pursuant to Section
12(b) hereof, Tejas Securities Group, Inc., individually and not as a
representative of the Underwriters, shall refund the difference to the Company.
(d)If the Over-Allotment Option is exercised, the Selling Shareholders shall pay
a pro rata portion of all expenses incurred by the Company pursuant to this
Section 12.
13. SUBSTITUTION OF UNDERWRITERS. If any Underwriters shall for any reason not
permitted hereunder cancel their obligations to purchase the Firm Securities
hereunder, or shall fail to take up and pay for the number of Firm Securities
set forth opposite their respective names in Schedule A hereto upon tender of
such Firm Securities in accordance with the terms hereof, then:
(a) If the aggregate number of Firm Securities which such
Underwriter or Underwriters agreed but failed to purchase does not exceed
ten percent (10%) of the total number of Firm Securities, the other
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Firm Securities which such
defaulting Underwriter or Underwriters agreed but failed to purchase.
-1-
(b) If any Underwriter or Underwriters so default and the agreed number of Firm
Securities with respect to which such default or defaults occurs is more than
ten percent (10%) of the total number of Firm Securities, the remaining
Underwriters shall have the right to take up and pay for (in such proportion as
may be agreed upon among them) the Firm Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase. If such remaining
Underwriters do not, at the First Closing Date, take up and pay for the Firm
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase, the time for delivery of the Firm Securities shall be extended to the
next business day to allow the several Underwriters the privilege of
substituting within twenty-four (24) hours (including non-business hours)
another underwriter or underwriters satisfactory to the Company. If no such
underwriter or underwriters shall have been substituted as aforesaid, within
such twenty-four (24) hour period, the time of delivery of the Firm Securities
may, at the option of the Company, be again extended to the next following
business day, if necessary, to allow the Company the privilege of finding within
twenty-four (24) hours (including non-business hours) another underwriter or
underwriters to purchase the Firm Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase. If it shall be arranged for the
remaining Underwriters or substituted Underwriters to take up the Firm
Securities of the defaulting Underwriter or Underwriters as provided in this
Section 13, (i) the Company or the Representatives shall have the right to
postpone the time of delivery for the period of not more than seven (7) business
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees promptly to file any amendments to the
Registration Statement or supplements to the Prospectus which may thereby be
made necessary, and (ii) the respective numbers of Firm Securities to be
purchased by the remaining Underwriters or substituted Underwriters shall be
taken at the basis of the underwriting obligation for all purposes of this
Agreement. If in the event of a default by one or more Underwriters and the
remaining Underwriters shall not take up and pay for all the Firm Securities
agreed to be purchased by the defaulting Underwriters or substitute another
underwriter or underwriters as aforesaid, the Company shall not find or shall
not elect to seek another underwriter or underwriters for such Firm Securities
as aforesaid, then this Agreement shall terminate. If, following exercise of the
Over-Allotment Option, any Underwriter or Underwriters shall for any reason not
permitted hereunder cancel their obligations to purchase Option Securities at
the Option Closing Date, or shall fail to take up and pay for the number of
Option Securities, which they become obligated to purchase at the Option Closing
Date upon tender of such Option Securities in accordance with the terms hereof,
then the remaining Underwriters or substituted Underwriters may take up and pay
for the Option Securities of the defaulting Underwriters in the manner provided
in Section 13(b) hereof. If the remaining Underwriters or substituted
Underwriters shall not take up and pay for all such Option Securities, the
Underwriters shall be entitled to purchase the number of Option Securities for
which there is no default or, at their election, the option shall terminate and
the exercise thereof shall be of no effect. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 13. In the event of termination, there shall be no liability on the part
of any nondefaulting Underwriter to the Company, provided that the provisions of
this Section 13 shall to in any event affect the liability of any defaulting
Underwriter to the Company arising out of such default.
14. TERMINATION.
(a) This Agreement, except for Sections 10, 11, 12, 15, 16, 17 and 18,
may be terminated at any time prior to the First Closing Date, and the
Over-Allotment Option, if exercised, may be canceled at any time prior to the
Option Closing Date, by the Representatives if in their judgment it is
impracticable to offer for sale or to enforce contracts made by the Underwriters
for the resale of the Units agreed to be purchased hereunder by reason of (i)
the Company having sustained a material loss, whether or not insured, by reason
of fire, earthquake, flood, accident or other calamity, or from any labor
dispute or court or government action, order or decree; (ii) trading in
securities on the New York Stock Exchange, the American Stock Exchange, the
Nasdaq SmallCap Market or the Nasdaq National Market having been suspended or
limited; (iii) material governmental restrictions having been imposed on trading
in securities generally (not in force and effect on the date hereof); (iv) a
banking moratorium having been declared by federal or New York state
authorities; (v) an outbreak of international hostilities or other national or
international calamity or crisis or change in economic or political conditions
having occurred; (vi) a pending or threatened legal or governmental proceeding
or action relating generally to the Company's business, or a notification having
been received by the Company of the threat of any such proceeding or action,
which could materially adversely affect the Company; (vii) except as
contemplated by the Prospectus, the Company is merged or consolidated into or
acquired by another company or group or there exists a binding legal commitment
for the foregoing or any other material change of ownership or control occurs;
(viii) the passage by the Congress of the United States or by any state
legislative body or federal or state agency or other authority of any act, rule
or regulation, measure, or the adoption of any orders, rules or regulations by
any governmental body or any authoritative accounting institute or board, or any
governmental executive, which is reasonably believed likely by the
Representative to have a material impact on the business, financial condition or
financial statements of the Company or the market for the securities offered
pursuant to the Prospectus; (ix) any adverse change in the financial or
securities markets beyond normal market fluctuations having occurred since the
date of this Agreement, or (x) any material adverse change having occurred,
since the respective dates of which information is given in the Registration
Statement and Prospectus, in the earnings, business prospects or general
condition of the Company, financial or otherwise, whether or not arising in the
ordinary course of business.
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(b) If the Representatives elect to prevent this Agreement from
becoming effective or to terminate this Agreement as provided in this Section
15 or in Section 14 hereof, the Company shall be promptly notified by
the Representatives, by telephone or telegram, confirmed by letter, in
accordance with Section 17 hereof.
15. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers, directors, stockholders and the
Selling Shareholders and the undertakings 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, the Company or any of its officers or
directors or any controlling person or any of the Selling Shareholders and will
survive delivery of and payment of the Units and the termination of this
Agreement.
16. NOTICE. Any communications specifically required hereunder to
be in writing, if sent to the Underwriters, will be mailed, delivered and
confirmed to the Representatives at 0000 Xxxxxxxxxxx, Xxxxx 000,
Xxxxxx, Xxxxx 00000, with a copy sent to Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.,
0000 Xxxxxxxxxxx Xxxxx, 0000 Xxx Xxxxxx, Xxxxxx, Xxxxx 00000; or if sent to
the Company, will be mailed, delivered and confirmed to it at
BioShield Technologies, Inc., 0000 Xxxxxxxxxxxxx Xxxxxxxxx, Xxxxx X-000,
Xxxxxxxx, Xxxxxxx 00000, with a copy sent to Xxxx Xxxx Xxxxx & Xxxxx LLP, 000
Xxxxxxxxx Town Center, Xxxxx 000, 000 Xxxxxxxxx Xxxx, X.X., Xxxxxxx,
Xxxxxxx 00000; or if sent to the Xxxxxxx X. Xxxxx, as a Selling Shareholder,
will be mailed, delivered and confirmed to it c/o BioShield Technologies,
Inc., 0000 Xxxxxxxxxxxxx Xxxxxxxxx, Xxxxx X-000, Xxxxxxxx, Xxxxxxx
00000, with a copy sent to Xxxx Xxxx Xxxxx & Xxxxx LLP, 000 Xxxxxxxxx Xxxx
Xxxxxx, Xxxxx 000, 000 Xxxxxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000; or if sent
to Xxxxxxx Xxxxxxx, as a Selling Shareholder, will be mailed, delivered
and confirmed to it c/o BioShield Technologies, Inc., 0000 Xxxxxxxxxxxxx
Xxxxxxxxx, Xxxxx X-000, Xxxxxxxx, Xxxxxxx 00000, with a copy sent to Xxxx
Xxxx Xxxxx & Xxxxx LLP, 000 Xxxxxxxxx Xxxx Xxxxxx, Xxxxx 000, 000
Xxxxxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000.
17. PARTIES IN INTEREST. This Agreement is made solely for the benefit of the
Underwriters, the Representatives, each on an individual basis, the Company, the
Selling Shareholders, any person controlling the Company or the Underwriters,
directors of the Company, nominees for directors of the Company (if any) named
in the Prospectus, officers of the Company who have signed the Registration
Statement and each of their respective executors, administrators, successors and
assigns and no other person shall acquire or have any right under or by virtue
of this Agreement. The term "Successors and Assigns" shall not include any
purchaser, as such purchaser, from the Underwriters of the Units. All of the
obligations of the Underwriters hereunder are several and not joint.
18. APPLICABLE LAW. This Agreement will be governed by, and
construed in accordance with, the laws of the State of Texas
applicable to agreements made and to be entirely performed within
Texas.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return this Agreement, whereupon it will become a
binding agreement among the Company, the Selling Shareholders and the
Underwriters in accordance with its terms.
Very truly yours, BIOSHIELD TECHNOLOGIES, INC.
By:
Name:
Title:
As to the Selling Shareholders Solely to Sections 3, 7, 16
and 17 Hereof
Xxxxxxx X. Xxxxx
Xxxxxxx Xxxxxxx
The foregoing Underwriting Agreement is hereby confirmed and accepted
as of the date first above written.
TEJAS SECURITIES GROUP, INC.
By:
Name:
Title:
REDSTONE SECURITIES, INC.
By:
Name:
Title:
SEABOARD SECURITIES, INC.
By:
Name:
Title:
SCHEDULE A
UNDERWRITERS
Number of
Underwriters Firm Securities
to be Purchased
Tejas Securities Group, Inc.
Redstone Securities, Inc.
Seaboard Securities, Inc.
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750,000
