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EXHIBIT 1.1
3,750,000 Shares*
REMEC, Inc.
Common Stock
UNDERWRITING AGREEMENT
March ______, 2000
XXXXXXX & COMPANY, INC.
CIBC World Markets Corp.
Dain Rauschler Incorporated
X.X. Xxxxxxx & Sons, Inc.
As Representatives of the several Underwriters
c/o Needham & Company, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
REMEC, Inc., a California corporation (the "Company"), proposes to issue and
sell 3,500,000 shares (the "Company Firm Shares") of the Company's Common Stock,
$.0.01 par value per share (the "Common Stock"), and one of the shareholders of
the Company named in Schedule II hereto (the "Selling Shareholders") propose to
sell an aggregate of 250,000 shares (the "Selling Shareholder Firm Shares") of
Common Stock, in each case to you and to the several other Underwriters named in
Schedule I hereto (collectively, the "Underwriters"), for whom you are acting as
representatives (the "Representatives"). The remaining Selling Shareholders have
agreed to grant to you and the other Underwriters an option (the "Option") to
purchase up to an additional 562,500 shares of Common Stock, on the terms and
for the purposes set forth in Section 1(b) (the "Option Shares"). The Company
Firm Shares and the Selling Shareholder Firm Shares are referred to collectively
herein as the "Firm Shares," and the Firm Shares and the Option Shares are
referred to collectively herein as the "Shares."
The Company and each of the Selling Shareholders confirm as follows
their respective agreements with the Representatives and the several other
Underwriters.
1. Agreement to Sell and Purchase.
(a) On the basis of the representations, warranties and
agreements of the Company and the Selling Shareholders herein contained and
subject to all the terms and conditions of this Agreement, (i) the Company
agrees to issue and sell the Company Firm Shares to the several Underwriters,
(ii) the Selling Shareholder agrees to sell to the several Underwriters the
number of Selling Shareholder Firm Shares set forth opposite that Selling
Shareholders's name on Schedule II hereto and (iii) each of the Underwriters,
severally and not jointly, agrees to purchase from the Company and the Selling
Shareholders the respective number of Firm Shares set forth opposite that
Underwriter's name in Schedule I hereto, at the purchase price of $____ for each
Firm Share. The number of Firm Shares to be purchased by each Underwriter from
the Company and the Selling Shareholder shall be as nearly as practicable in the
same proportion to the total number of Firm Shares being sold by the Company and
the Selling Shareholder as the number of Firm Shares being purchased by each
Underwriter bears to the total number of Firm Shares to be sold hereunder.
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* Plus an option to purchase up to an additional 562,500 shares to cover
over-allotments.
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(b) Subject to all the terms and conditions of this Agreement,
the Selling Shareholders grant the Option to the several Underwriters to
purchase, severally and not jointly, up to the maximum number of Option Shares
set forth in Schedule II hereto at the same price per share as the Underwriters
shall pay for the Firm Shares. The Option may be exercised only to cover
over-allotments in the sale of the Firm Shares by the Underwriters and may be
exercised in whole or in part at any time (but not more than once) on or before
the 30th day after the date of this Agreement upon written or telegraphic notice
(the "Option Shares Notice") by the Representatives to the Selling Shareholders
no later than 12:00 noon, New York City time, at least two and no more than five
business days before the date specified for closing in the Option Shares Notice
(the "Option Closing Date"), setting forth the aggregate number of Option Shares
to be purchased and the time and date for such purchase. On the Option Closing
Date, the Selling Shareholders will sell to the Underwriters the number of
Option Shares set forth in the Option Shares Notice, and each Underwriter will
purchase such percentage of the Option Shares as is equal to the percentage of
Firm Shares that such Underwriter is purchasing, as adjusted by the
Representatives in such manner as they deem advisable to avoid fractional
shares.
2. Delivery and Payment. Delivery of the Firm Shares shall be made
to the Representatives for the accounts of the Underwriters against payment of
the purchase price by certified or official bank checks or by wire transfers
payable in same-day funds to the order of the Company for the Company Firm
Shares to be sold by it and to ChaseMellon Shareholder Services LLC, as
custodian for the Selling Shareholder (the "Custodian") for the Selling
Shareholder Firm Shares to be sold by the Selling Shareholder at the office of
Xxxxxxx & Company, Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00
a.m., New York City time, on the third (or, if the purchase price set forth in
Section 1(b) hereof is determined after 4:30 p.m., Washington D.C. time, the
fourth) business day following the commencement of the offering contemplated by
this Agreement, or at such time on such other date, not later than seven
business days after the date of this Agreement, as may be agreed upon by the
Company and the Representatives (such date is hereinafter referred to as the
"Closing Date").
To the extent the Option is exercised, delivery of the Option Shares
against payment by the Underwriters (in the manner specified above) will take
place at the offices specified above for the Closing Date at the time and date
(which may be the Closing Date) specified in the Option Shares Notice.
Certificates evidencing the Shares shall be in definitive form and shall
be registered in such names and in such denominations as the Representatives
shall request at least two business days prior to the Closing Date or the Option
Closing Date, as the case may be, by written notice to the Company. For the
purpose of expediting the checking and packaging of certificates for the Shares,
the Company agrees to make such certificates available for inspection at least
24 hours prior to the Closing Date or the Option Closing Date, as the case may
be.
The cost of original issue tax stamps, if any, in connection with the
issuance and delivery of the Firm Shares and Option Shares by the Company and
the Selling Shareholders to the respective Underwriters shall be borne by the
Company. The Company and the Selling Shareholders will pay and save each
Underwriter and any subsequent holder of the Shares harmless from any and all
liabilities with respect to or resulting from any failure or delay in paying
Federal and state stamp and other transfer taxes, if any, which may be payable
or determined to be payable in connection with the original issuance or sale to
such Underwriter of the Shares.
3. Representations and Warranties of the Company. The Company
represents, warrants and covenants to each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
relating to the Shares, including a preliminary prospectus and such amendments
to such registration statement as may have been required to the date of this
Agreement, has been prepared by the Company under the provisions of the
Securities Act of 1933, as amended (the "Act"), and the rules and regulations
(collectively referred to as the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, and has been filed with the
Commission. The term "preliminary prospectus" as used herein means a preliminary
prospectus, including the documents incorporated by reference therein, as
contemplated by Rule 430 or Rule 430A of the Rules and Regulations included at
any time as part of the registration statement. Copies of such registration
statement and amendments and of each related preliminary prospectus have been
delivered to the Representatives. If such registration statement has not become
effective, a further amendment to such registration statement, including a form
of final prospectus, necessary to permit such registration statement to become
effective will be filed promptly by the Company with the
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Commission. If such registration statement has become effective, a final
prospectus containing information permitted to be omitted at the time of
effectiveness by Rule 430A of the Rules and Regulations will be filed promptly
by the Company with the Commission in accordance with Rule 424(b) of the Rules
and Regulations. The term "Registration Statement" means the registration
statement as amended at the time it becomes or became effective (the "Effective
Date"), including all documents incorporated by reference therein, financial
statements and all exhibits and any information deemed to be included by Rule
430A and includes any registration statement relating to the offering
contemplated by this Agreement and filed pursuant to Rule 462(b) of the Rules
and Regulations. The term "Prospectus" means the prospectus, including the
documents incorporated by reference therein, as first filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations or, if no such filing is
required, the form of final prospectus, including the documents incorporated by
reference therein, included in the Registration Statement at the Effective Date.
Any reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the filing of any document
under the Securities Exchange Act of 1934, as amended (the "Exchange Act") after
the Effective Date, the date of any preliminary prospectus or the date of the
Prospectus, as the case may be, and deemed to be incorporated therein by
reference.
(b) To the Company's knowledge after reasonable inquiry no order
preventing or suspending the use of any preliminary prospectus has been issued
by the Commission. On the Effective Date, the date the Prospectus is first filed
with the Commission pursuant to Rule 424(b) (if required), at all times
subsequent to and including the Closing Date and, if later, the Option Closing
Date and when any post-effective amendment to the Registration Statement becomes
effective or any amendment or supplement to the Prospectus is filed with the
Commission, the Registration Statement and the Prospectus (as amended or as
supplemented if the Company shall have filed with the Commission any amendment
or supplement thereto), including the financial statements included in the
Prospectus, did and will comply with all applicable provisions of the Act, the
Exchange Act, the rules and regulations under the Exchange Act (the "Exchange
Act Rules and Regulations"), and the Rules and Regulations and will contain all
statements required to be stated therein in accordance with the Act, the
Exchange Act, the Exchange Act Rules and Regulations, and the Rules and
Regulations. On the Effective Date and when any post-effective amendment to the
Registration Statement becomes effective, no part of the Registration Statement,
the Prospectus or any such amendment or supplement did or will contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading. At the Effective Date, the date the Prospectus or any amendment or
supplement to the Prospectus is filed with the Commission and at the Closing
Date and, if later, the Option Closing Date, the Prospectus did not and will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The foregoing representations and
warranties in this Section 3(b) do not apply to any statements or omissions made
in reliance on and in conformity with information relating to any Underwriter
furnished in writing to the Company by the Representatives specifically for
inclusion in the Registration Statement or Prospectus or any amendment or
supplement thereto. The Company acknowledges that the statements set forth under
the heading "Underwriting" in the Prospectus constitute the only information
relating to any Underwriter furnished in writing to the Company by the
Representatives specifically for inclusion in the Registration Statement.
(c) The documents that are incorporated by reference in the
preliminary prospectus and the Prospectus or from which information is so
incorporated by reference, when they became or become effective or were or are
filed with the Commission, as the case may be, complied or will comply in all
material respects with the requirements of the Act or the Exchange Act, as
applicable, and the Rules and Regulations or the Exchange Act Rules and
Regulations, as applicable; and any documents so filed and incorporated by
reference subsequent to the Effective Date shall, when they are filed with the
Commission, comply in all material respects with the requirements of the Act or
the Exchange Act, as applicable, and the Rules and Regulations or the Exchange
Act Rules and Regulations, as applicable.
(d) The Company does not own, and at the Closing Date and, if
later, the Option Closing Date, will not own, directly or indirectly, any shares
of stock or any other equity or long-term debt securities of any corporation or
have any equity interest in any corporation, firm, partnership, joint venture,
association or other entity, other than the subsidiaries listed on schedule III
to this agreement (the "Subsidiaries"). The Company and each of its Subsidiaries
is, and at the Closing Date and, if later, the Option Closing Date, will be, a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation. The Company
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and each of its Subsidiaries has, and at the Closing Date and, if later, the
Option Closing Date, will have, full power and authority to conduct all the
activities conducted by it, to own or lease all the assets owned or leased by it
and to conduct its business as described in the Registration Statement and the
Prospectus. The Company and each of its Subsidiaries is, and at the Closing Date
and, if later, the Option Closing Date, will be, duly licensed or qualified to
do business and in good standing as a foreign corporation in all jurisdictions
in which the nature of the activities conducted by it or the character of the
assets owned or leased by it makes such license or qualification necessary,
except to the extent that the failure to be so qualified or be in good standing
would not materially and adversely affect the Company or its business,
properties, business prospects, condition (financial or other) or results of
operations. All of the outstanding shares of capital stock of each Subsidiary
have been duly authorized and validly issued and are fully paid and
nonassessable, and owned by the Company free and clear of all claims, liens,
charges and encumbrances; there are no securities outstanding that are
convertible into or exercisable or exchangeable for capital stock of any
Subsidiary. The Company is not, and at the Closing Date and, if later, the
Option Closing Date, will not be, engaged in any discussions or a party to any
agreement or understanding, written or oral, regarding the acquisition of an
interest in any corporation, firm, partnership, joint venture, association or
other entity where such discussions, agreements or understandings would require
amendment to the Registration Statement pursuant to applicable securities laws.
Complete and correct copies of the certificate of incorporation and of the
by-laws of the Company and each of its Subsidiaries and all amendments thereto
have been delivered to the Representatives, and no changes therein will be made
subsequent to the date hereof and prior to the Closing Date or, if later, the
Option Closing Date.
(e) All of the outstanding shares of capital stock of the Company
(including the Selling Shareholder Firm Shares and the Option Shares to be sold
by the Selling Shareholder under this Agreement) have been duly authorized,
validly issued and are fully paid and nonassessable and were issued in
compliance with all applicable state and federal securities laws; the Company
Firm Shares have been duly authorized and when issued and paid for as
contemplated herein will be validly issued, fully paid and nonassessable; no
preemptive or similar rights exist with respect to any of the Shares or the
issue and sale thereof. Except as set forth in the Prospectus, the Company does
not have outstanding, and at the Closing Date and, if later, the Option Closing
Date, will not have outstanding, any options to purchase, or any rights or
warrants to subscribe for, or any securities or obligations convertible into, or
any contracts or commitments to issue or sell, any shares of capital stock, or
any such warrants, convertible securities or obligations. No further approval or
authority of shareholders or the Board of Directors of the Company will be
required for the transfer and sale of the Selling Shareholder Shares or the
issuance and sale of the Company Firm Shares as contemplated herein.
(f) The financial statements and schedules included or
incorporated by reference in the Registration Statement or the Prospectus
present fairly the financial condition of the Company and its consolidated
Subsidiaries as of the respective dates thereof and the results of operations
and cash flows of the Company and its consolidated Subsidiaries for the
respective periods covered thereby, all in conformity with generally accepted
accounting principles applied on a consistent basis throughout the entire period
involved, except as otherwise disclosed in the Prospectus. No other financial
statements or schedules of the Company are required by the Act, the Exchange
Act, the Exchange Act Rules and Regulations or the Rules and Regulations to be
included in the Registration Statement or the Prospectus. Ernst & Young LLP (the
"Accountants"), who have reported on such financial statements and schedules,
are independent accountants with respect to the Company as required by the Act
and the Rules and Regulations. The summary consolidated financial and
statistical data included in the Registration Statement present fairly the
information shown therein and have been compiled on a basis consistent with the
financial statements presented therein.
(g) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to the Closing
Date and, if later, the Option Closing Date, except as set forth in or
contemplated by the Registration Statement and the Prospectus, (i) there has not
been and will not have been any change in the capitalization of the Company
(other than in connection with the exercise of options to purchase the Company's
Common Stock granted pursuant to the Company's stock option plans from the
shares reserved therefor as described in the Registration Statement), or any
material adverse change in the business, properties, business prospects,
condition (financial or otherwise) or results of operations of the Company or
any of its Subsidiaries, arising for any reason whatsoever, (ii) neither the
Company nor any of its Subsidiaries has incurred nor will it any of them incur,
except in the ordinary course of business as described in the Prospectus, any
material liabilities or obligations, direct or contingent, nor has the Company
or any of its Subsidiaries entered into nor will it
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enter into, except in the ordinary course of business as described in the
Prospectus, any material transactions other than pursuant to this Agreement and
the transactions referred to herein and (iii) the Company has not and will not
have paid or declared any dividends or other distributions of any kind on any
class of its capital stock.
(h) The Company is not, will not become as a result of the
transactions contemplated hereby, and does not intend to conduct its business in
a manner that would cause it to become, an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment Company Act of
1940, as amended.
(i) Except as set forth in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Company, and its
Subsidiaries or any of their officers in their capacity as such, nor any basis
therefor, before or by any Federal or state court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, wherein
an unfavorable ruling, decision or finding might materially and adversely affect
the Company, any of its Subsidiaries or the business, properties, business
prospects, condition (financial or otherwise) or results of operations of the
Company or any of its Subsidiaries.
(j) The Company and each Subsidiary has, and at the Closing Date
and, if later, the Option Closing Date, will have, performed all the obligations
required to be performed by it, and is not, and at the Closing Date, and, if
later, the Option Closing Date, will not be, in default, under any contract or
other instrument to which it is a party or by which its property is bound or
affected, which default might reasonably be expected to materially and adversely
affect the Company or the business, properties, business prospects, condition
(financial or other) or results of operations of the Company or any of its
Subsidiaries considered as a whole. To the knowledge of the Company, no other
party under any contract or other instrument to which it or any of its
Subsidiaries is a party is in default in any respect thereunder, which default
might reasonably be expected to materially and adversely affect the Company, any
of its Subsidiaries considered as a whole, or the business, properties, business
prospects, condition (financial or other) or results of operations of the
Company or any of its Subsidiaries considered as a whole. Neither the Company
nor any of its Subsidiaries is, and at the Closing Date and, if later, the
Option Closing Date, will be, in violation of any provision of its certificate
or articles of organization or by-laws or other organizational documents.
(k) No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body is required
for the consummation by the Company of the transactions on its part contemplated
herein, except such as have been obtained under the Act or the Rules and
Regulations and such as may be required under state securities or Blue Sky laws
or the by-laws and rules of the National Association of Securities Dealers, Inc.
(the "NASD") in connection with the purchase and distribution by the
Underwriters of the Shares.
(l) The Company has full corporate power and authority to enter
into this Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with the terms hereof
except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application affecting the enforcement of
creditors' rights, and general principles of equity. The performance of this
Agreement and the consummation of the transactions contemplated hereby will not
result in the creation or imposition of any lien, charge or encumbrance upon any
of the assets of the Company pursuant to the terms or provisions of, or result
in a breach or violation of any of the terms or provisions of, or constitute a
default under, or give any party a right to terminate any of its obligations
under, or result in the acceleration of any obligation under, the certificate or
articles of incorporation or by-laws of the Company or any of its Subsidiaries,
any indenture, mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement or other evidence of indebtedness, lease,
contract or other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company, any of its Subsidiaries or any
of their properties is bound or affected, or violate or conflict with any
judgment, ruling, decree, order, statute, rule or regulation of any court or
other governmental agency or body applicable to the business or properties of
the Company or any of its Subsidiaries considered as a whole.
(m) The Company or one of its Subsidiaries has good and
marketable title to all properties and assets described in the Prospectus as
owned by them, free and clear of all liens, charges, encumbrances or
restrictions, except such as are described in the Prospectus or are not material
to the business of the Company or its
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Subsidiaries. The Company or its Subsidiaries has valid, subsisting and
enforceable leases for the properties described in the Prospectus as leased by
them. The Company or one of its Subsidiaries owns or leases all such properties
as are necessary to its operations as now conducted or as proposed to be
conducted, except where the failure to so own or lease would not materially and
adversely affect the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Company or its
Subsidiaries considered as a whole.
(n) There is no document or contract of a character required to
be described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement which is not described or filed as
required. All such contracts to which the Company is a party have been duly
authorized, executed and delivered by the Company or such Subsidiary, constitute
valid and binding agreements of the Company or such Subsidiary and are
enforceable against and by the Company or such Subsidiary in accordance with the
terms thereof except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application affecting the
enforcement of creditors' rights, and general principles of equity.
(o) No statement, representation, warranty or covenant made by
the Company in this Agreement or made in any certificate or document required by
Section 6 of this Agreement to be delivered to the Representatives was or will
be, when made, inaccurate, untrue or incorrect in any material respect.
(p) Neither the Company nor any of its directors, officers or
controlling persons has taken, directly or indirectly, any action designed, or
which might reasonably be expected, to cause or result, under the Act or
otherwise, in, or which has constituted, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares.
(q) No holder of securities of the Company has rights to the
registration of any securities of the Company because of the filing of the
Registration Statement, which rights have not been waived by the holder thereof
as of the date hereof.
(r) The Company has filed a registration statement pursuant to
Section 12(g) of the Exchange Act of 1934, as amended (the "Exchange Act"), to
register the Common Stock, has filed an application to list the Shares to be
sold by the Company hereunder on the Nasdaq National Market ("NNM"), and has
received notification that the listing has been approved, subject to notice of
issuance of such Shares. The Shares to be sold by the Selling Shareholder
hereunder are listed on the NNM.
(s) Except as disclosed in or specifically contemplated by the
Prospectus, (i) the Company and its Subsidiaries have sufficient trademarks,
trade names, patent rights, mask works, copyrights, licenses, approvals and
governmental authorizations to conduct their businesses as now conducted, (ii)
the Company has no knowledge of any infringement by it or any of its
Subsidiaries of trademarks, trade name rights, patent rights, mask work rights,
copyrights, licenses, trade secrets or other similar rights of others, where
such infringement could have a material and adverse effect on the Company, any
of its Subsidiaries or the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Company or any of its
Subsidiaries and (iii) there is no claim being made against the Company or any
of its Subsidiaries, or to the best of the Company's knowledge, any employee of
the Company or any of its Subsidiaries, regarding trademark, trade name, patent,
mask work, copyright, license, trade secret or other infringement which could
have a material and adverse effect on the Company, any of its Subsidiaries or
the business, properties, business prospects, condition (financial or otherwise)
or results of operations of the Company or any of its Subsidiaries considered as
a whole.
(t) The Company and each of its Subsidiaries has filed all
federal, state, local and foreign income tax returns which have been required to
be filed and has paid all taxes and assessments received by it to the extent
that such taxes or assessments have become due. Neither the Company nor any of
its Subsidiaries has any tax deficiency which has been or, to the best knowledge
of the Company, might be asserted or threatened against it which could have a
material and adverse effect on the business, properties, business prospects,
condition (financial or otherwise) or results of operations of the Company or
its Subsidiaries considered as a whole.
(u) The pro forma financial information set forth in the
Registration Statement reflects, subject to the limitations set forth in the
Registration Statement as to such pro forma financial information, the results
of operations of the Company and its consolidated Subsidiaries purported to be
shown thereby for the periods
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indicated and conforms to the requirements of Regulation S-X of the Rules and
Regulations and management of the Company believes (i) the assumptions
underlying the pro forma adjustments are reasonable, (ii) that such adjustments
have been properly applied to the historical amounts in the compilation of such
statements, and (iii) that such statements present fairly, with respect to the
Company and its consolidated Subsidiaries, the pro forma financial position and
results of operations and the other information purported to be shown therein at
the respective dates or for the respective periods therein specified.
(v) The Company or its Subsidiaries owns or possesses all
authorizations, approvals, orders, licenses, registrations, other certificates
and permits of and from all governmental regulatory officials and bodies,
necessary to conduct their respective businesses as contemplated in the
Prospectus, except where the failure to own or possess all such authorizations,
approvals, orders, licenses, registrations, other certificates and permits would
not materially and adversely affect the Company, any of its Subsidiaries or the
business, properties, business prospects, condition (financial or otherwise) or
results of operations of the Company or any of its Subsidiaries considered as a
whole. There is no proceeding pending or threatened (or any basis therefor known
to the Company) which may cause any such authorization, approval, order,
license, registration, certificate or permit to be revoked, withdrawn,
cancelled, suspended or not renewed; and the Company and each of its
Subsidiaries is conducting its business in compliance with all laws, rules and
regulations applicable thereto (including, without limitation, all applicable
federal, state and local environmental laws and regulations) except where such
noncompliance would not materially and adversely affect the Company, any of its
Subsidiaries or the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Company or any of its
Subsidiaries considered as a whole.
(w) The Company and each of its Subsidiaries maintains insurance
of the types and in the amounts generally deemed adequate for its business,
including, but not limited to, insurance covering real and personal property
owned or leased by the Company and its Subsidiaries against theft, damage,
destruction, acts of vandalism and all other risks customarily insured against,
all of which insurance is in full force and effect.
(x) Neither the Company nor any of its Subsidiaries has nor, to
the best of the Company's knowledge, any of its or their respective employees or
agents at any time during the last five years (i) made any unlawful contribution
to any candidate for foreign office, or failed to disclose fully any
contribution in violation of law, or (ii) made any payment to any federal or
state governmental officer or official, or other person charged with similar
public or quasi-public duties, other than payments required or permitted by the
laws of the United States or any jurisdiction thereof.
4. Representations, Warranties and Covenants of the Selling
Shareholders. Each Selling Shareholder, severally and not jointly, represents,
warrants and covenants to each Underwriter that:
(a) All consents, approvals, authorizations and orders necessary
for the execution and delivery by such Selling Shareholder of this Agreement and
the Power-of-Attorney and Custody Agreement (hereinafter referred to as a
"Shareholders' Agreement") hereinafter referred to, and for the sale and
delivery of the Selling Shareholder Shares to be sold by such Selling
Shareholder hereunder, have been obtained; and such Selling Shareholder has full
right, power and authority to enter into this Agreement and the Stockholders'
Agreement, to make the representations, warranties and agreements hereunder and
thereunder, and to sell, assign, transfer and deliver the Shares to be sold by
such Selling Shareholder hereunder.
(b) Certificates in negotiable form representing all of the
Selling Shareholder Shares to be sold by such Selling Shareholder have been
placed in custody under the Stockholders' Agreement, in the form heretofore
furnished to you, duly executed and delivered by such Selling Shareholder to the
Custodian, and such Selling Shareholder has duly executed and delivered a
power-of-attorney, in the form heretofore furnished to you and included in the
Stockholders' Agreement (the "Power-of-Attorney"), appointing Xxxxxx Xxxxxxx,
Xxxxx Xxxxxxx and Xxxxxxx XxXxxxxx as such Selling Shareholder's
attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute and
deliver this Agreement on behalf of such Selling Shareholder, to determine
(subject to the provisions of the Shareholders' Agreement) the purchase price to
be paid by the Underwriters to the Selling Shareholders as provided in Section 2
hereof, to authorize the delivery of the Selling Shareholder Shares to be sold
by such Selling Shareholder hereunder and otherwise to act on behalf of such
Selling Shareholder in connection with the transactions contemplated by this
Agreement and the Stockholders' Agreement.
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(c) Such Selling Shareholder specifically agrees that the Selling
Shareholder Shares represented by the certificates held in custody for such
Selling Shareholder under the Stockholders' Agreement are for the benefit of and
coupled with and subject to the interests of the Underwriters, the Custodian,
the Attorneys-in-Fact, each other Selling Shareholder and the Company, that the
arrangements made by such Selling Shareholder for such custody, and the
appointment by such Selling Shareholder of the Attorneys-in-Fact by the
Power-of-Attorney, are to that extent irrevocable, and that the obligations of
such Selling Shareholder hereunder shall not be terminated by operation of law,
whether by the death, disability, incapacity, liquidation or dissolution of any
Selling Shareholder or by the occurrence of any other event. If any individual
Selling Shareholder or any executor or trustee for a Selling Shareholder should
die or become incapacitated, or if any Selling Shareholder that is an estate or
trust should be terminated, or if any Selling Shareholder that is a partnership
or corporation should be dissolved, or if any other such event should occur,
before the delivery of the Selling Shareholder Firm Shares hereunder,
certificates representing the Selling Shareholder Firm Shares shall be delivered
by or on behalf of the Selling Shareholders in accordance with the terms and
conditions of this Agreement and of the Stockholders' Agreement, and actions
taken by the Attorneys-in-Fact pursuant to the Powers-of-Attorney shall be as
valid as if such death, incapacity, termination, dissolution or other event had
not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact,
or any of them, shall have received notice of such death, incapacity,
termination, dissolution or other event.
(d) This Agreement and the Stockholders' Agreement have each been
duly authorized, executed and delivered by such Selling Shareholder and each
such document constitutes a valid and binding obligation of such Selling
Shareholder, enforceable in accordance with its terms except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application affecting the enforcement of creditors' rights, and general
principles of equity.
(e) No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body is required
in connection with the sale of the Selling Shareholder Shares by such Selling
Shareholder or the consummation by such Selling Shareholder of the transactions
on its part contemplated by this Agreement and the Stockholders' Agreement,
except such as have been obtained under the Act or the Rules and Regulations and
such as may be required under state securities or Blue Sky laws or the by-laws
and rules of the NASD in connection with the purchase and distribution by the
Underwriters of the Shares to be sold by such Selling Shareholder.
(f) The sale of the Selling Shareholder Shares to be sold by such
Selling Shareholder hereunder and the performance by such Selling Shareholder of
this Agreement and the Stockholders' Agreement and the consummation of the
transactions contemplated hereby and thereby will not result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets of such
Selling Shareholder pursuant to the terms or provisions of, or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, or give any party a right to terminate any of its obligations
under, or result in the acceleration of any obligation under, any indenture,
mortgage, deed of trust, voting trust agreement, loan agreement, bond,
debenture, note agreement or other evidence of indebtedness, lease, contract or
other agreement or instrument to which such Selling Shareholder is a party or by
which such Selling Shareholder or any of its properties is bound or affected, or
violate or conflict with any judgment, ruling, decree, order, statute, rule or
regulation of any court or other governmental agency or body applicable to such
Selling Shareholder or, if such Selling Shareholder is a corporation,
partnership or other entity, the organizational documents of such Selling
Shareholder.
(g) Such Selling Shareholder has, and at the Closing Date and, if
later, the Option Closing Date, will have, good and marketable title to the
Selling Shareholder Shares to be sold by such Selling Shareholder hereunder,
free and clear of all liens, encumbrances, equities or claims whatsoever; and,
upon delivery of such Selling Shareholder Shares and payment therefor pursuant
hereto, good and marketable title to such Selling Shareholder Firm Shares, free
and clear of all liens, encumbrances, equities or claims whatsoever, will be
delivered to the Underwriters.
(h) On the Closing Date or, if later, the Option Closing Date,
all stock transfer or other taxes (other than income taxes) that are required to
be paid in connection with the sale and transfer of the Shares to be sold by
such Selling Shareholder to the several Underwriters hereunder will be have been
fully paid or provided for by such Selling Shareholder and all laws imposing
such taxes will have been fully complied with.
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(i) Other than as permitted by the Act and the Rules and
Regulations, such Selling Shareholder has not distributed and will not
distribute any preliminary prospectus, the Prospectus or any other offering
material in connection with the offering and sale of the Shares. Such Selling
Shareholder has not taken and will not at any time take, directly or indirectly,
any action designed, or which might reasonably be expected, to cause or result
in, or which will constitute, stabilization of the price of shares of Common
Stock to facilitate the sale or resale of any of the Shares.
(j) All information with respect to such Selling Shareholder
contained in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement thereto complied or will comply in all
material respects with all applicable requirements of the Act and the Rules and
Regulations and does 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 the statements therein not misleading.
(k) Such Selling Shareholder has no knowledge of any material
fact or condition not set forth in the Registration Statement or the Prospectus
that has adversely affected, or may adversely affect, the business, properties,
business prospects, condition (financial or otherwise) or results of operations
of the Company and its Subsidiaries considered as a whole, and the sale of the
Shares proposed to be sold by such Selling Shareholder is not prompted by any
such knowledge.
(l) Such Selling Shareholder has no reason to believe that the
representations and warranties of the Company contained in Section 3 hereof are
not true and correct.
(m) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal Responsibility
Act of 1982 with respect to the transactions herein contemplated, such Selling
Shareholder agrees to deliver to you prior to or at the Closing Date a properly
completed and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations in
lieu thereof).
5. Agreements of the Company. The Company covenants and agrees
with the several Underwriters as follows:
(a) The Company will not, either prior to the Effective Date or
thereafter during such period as the Prospectus is required by law to be
delivered in connection with sales of the Shares by an Underwriter or dealer,
file any amendment or supplement to the Registration Statement or the
Prospectus, unless a copy thereof shall first have been submitted to the
Representatives within a reasonable period of time prior to the filing thereof
and the Representatives shall not have objected thereto in good faith.
(b) The Company will use its best efforts to cause the
Registration Statement to become effective, and will notify the Representatives
promptly, and will confirm such advice in writing, (i) when the Registration
Statement has become effective and when any post-effective amendment thereto
becomes effective, (ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus or for additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose or the threat thereof, (iv) of the happening of
any event during the period mentioned in the second sentence of Section 5(e)
that in the judgment of the Company makes any statement made in the Registration
Statement or the Prospectus untrue or that requires the making of any changes in
the Registration Statement or the Prospectus in order to make the statements
therein, in the light of the circumstances in which they are made, not
misleading and (v) of receipt by the Company or any representative or attorney
of the Company of any other communication from the Commission relating to the
Company, the Registration Statement, any preliminary prospectus or the
Prospectus. If at any time the Commission shall issue any order suspending the
effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible moment. If the Company has omitted any information from the
Registration Statement pursuant to Rule 430A of the Rules and Regulations, the
Company will comply with the provisions of and make all requisite filings with
the Commission pursuant to said Rule 430A and notify the Representatives
promptly of all such filings.
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(c) The Company will furnish to each Representative, without
charge, one signed copy of each of the Registration Statement and of any
post-effective amendment thereto, including financial statements and schedules,
and all exhibits thereto and will furnish to the Representatives, without
charge, for transmittal to each of the other Underwriters, a copy of the
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules but without exhibits.
(d) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time, the
Company will deliver to each of the Underwriters, without charge, as many copies
of the Prospectus or any amendment or supplement thereto as the Representatives
may reasonably request. The Company consents to the use of the Prospectus or any
amendment or supplement thereto by the several Underwriters and by all dealers
to whom the Shares may be sold, both in connection with the offering or sale of
the Shares and for any period of time thereafter during which the Prospectus is
required by law to be delivered in connection therewith. If during such period
of time any event shall occur which in the judgment of the Company or counsel to
the Underwriters should be set forth in the Prospectus in order to make any
statement therein, in the light of the circumstances under which it was made,
not misleading, or if it is necessary to supplement or amend the Prospectus to
comply with law, the Company will forthwith prepare and duly file with the
Commission an appropriate supplement or amendment thereto, and will deliver to
each of the Underwriters, without charge, such number of copies of such
supplement or amendment to the Prospectus as the Representatives may reasonably
request.
(f) Prior to any public offering of the Shares, the Company will
cooperate with the Representatives and counsel to the Underwriters in connection
with the registration or qualification of the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Representatives may
request; provided, that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to take any
action which would subject it to general service of process in any jurisdiction
where it is not now so subject.
(g) The Company will, so long as required under the Rules and
Regulations, furnish to its shareholders as soon as practicable after the end of
each fiscal year an annual report (including a balance sheet and statements of
income, stockholders' equity and cash flow of the Company and its consolidated
Subsidiaries, if any, certified by independent public accountants) and, as soon
as practicable after the end of each of the first three quarters of each fiscal
year (beginning with the fiscal quarter ending after the effective date of the
Registration Statement), consolidated summary financial information of the
Company and its Subsidiaries, if any, for such quarter in reasonable detail.
(h) During the period of five years commencing on the Effective
Date, the Company will furnish to the Representatives and each other Underwriter
who may so request copies of such financial statements and other periodic and
special reports as the Company may from time to time distribute generally to the
holders of any class of its capital stock, and will furnish to the
Representatives and each other Underwriter who may so request a copy of each
annual or other report it shall be required to file with the Commission.
(i) The Company will make generally available to holders of its
securities as soon as may be practicable but in no event later than the last day
of the fifteenth full calendar month following the calendar quarter in which the
Effective Date falls, an earnings statement (which need not be audited but shall
be in reasonable detail) for a period of 12 months ended commencing after the
Effective Date, and satisfying the provisions of Section 11(a) of the Act
(including Rule 158 of the Rules and Regulations).
(j) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company and,
unless otherwise paid by the Company, the Selling Shareholders will pay or
reimburse if paid by the Representatives, in such proportions as they may agree
upon themselves, all costs and expenses incident to the performance of the
obligations of the Company and the Selling Shareholders under this Agreement and
in connection with the transactions contemplated hereby, including but not
limited to costs and expenses of or relating to (i) the preparation, printing
and filing of the Registration Statement and exhibits to it, each preliminary
prospectus, Prospectus and any amendment or supplement to the Registration
Statement or Prospectus,
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(ii) the preparation and delivery of certificates representing the Shares, (iii)
the printing of this Agreement, the Agreement Among Underwriters, any Selected
Dealer Agreements, any Underwriters' Questionnaires, the Stockholders'
Agreements, any Underwriters' Powers of Attorney, and any invitation letters to
prospective Underwriters, (iv) furnishing (including costs of shipping and
mailing) such copies of the Registration Statement, the Prospectus and any
preliminary prospectus, and all amendments and supplements thereto, as may be
requested for use in connection with the offering and sale of the Shares by the
Underwriters or by dealers to whom Shares may be sold, (v) the listing of the
Shares on the NNM, (vi) any filings required to be made by the Underwriters with
the NASD, and the fees, disbursements and other charges of counsel for the
Underwriters in connection therewith, (vii) the registration or qualification of
the Shares for offer and sale under the securities or Blue Sky laws of such
jurisdictions designated pursuant to Section 5(f), including the fees,
disbursements and other charges of counsel to the Underwriters in connection
therewith, and the preparation and printing of preliminary, supplemental and
final Blue Sky memoranda, (viii) fees, disbursements and other charges of
counsel to the Company (but not those of counsel for the Underwriters, except as
otherwise provided herein) and (ix) the transfer agent for the Shares. The
Underwriters may deem the Company to be the primary obligor with respect to all
costs, fees and expenses to be paid by the Company and by the Selling
Shareholders. The Selling Shareholders will pay (directly or by reimbursement)
all fees and expenses incident to the performance of their obligations under
this Agreement that are not otherwise specifically provided for herein,
including but not limited to any fees and expenses of counsel for such Selling
Shareholders, any fees and expenses of the Attorneys-in-Fact and the Custodian,
and all expenses and taxes incident to the sale and delivery of the Shares to be
sold by such Selling Shareholders to the Underwriters hereunder.
(k) The Company will not at any time, directly or indirectly,
take any action designed or which might reasonably be expected to cause or
result in, or which will constitute, stabilization of the price of the shares of
Common Stock to facilitate the sale or resale of any of the Shares.
(l) The Company will apply the net proceeds from the offering and
sale of the Shares to be sold by the Company in the manner set forth in the
Prospectus under "Use of Proceeds"
(m) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the Prospectus,
without the prior written consent of Xxxxxxx & Company, Inc., the Company will
not offer, sell, contract to sell, grant options to purchase or otherwise
dispose of any of the Company's equity securities of the Company or any other
securities convertible into or exchangeable with its Common Stock or other
equity security (other than pursuant to employee stock benefit plans or the
conversion of convertible securities or the exercise of warrants outstanding on
the date of this Agreement).
(n) The Company will cause each of its officers, directors and
certain shareholders designated by the Representatives to, enter into lock-up
agreements with the Representatives to the effect that they will not, without
the prior written consent of Xxxxxxx & Company, Inc., sell, contract to sell or
otherwise dispose of any shares of Common Stock or rights to acquire such shares
according to the terms set forth in Schedule IV hereto.
6. Conditions of the Obligations of the Underwriters. The
obligations of each Underwriter hereunder are subject to the following
conditions:
(a) Notification that the Registration Statement has become
effective shall be received by the Representatives not later than 5:00 p.m., New
York City time, on the date of this Agreement or at such later date and time as
shall be consented to in writing by the Representatives and all filings required
by Rule 424 and Rule 430A of the Rules and Regulations shall have been made.
(b) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or threatened by the Commission, (ii) no order
suspending the effectiveness of the Registration Statement or the qualification
or registration of the Shares under the securities or Blue Sky laws of any
jurisdiction shall be in effect and no proceeding for such purpose shall be
pending before or threatened or contemplated by the Commission or the
authorities of any such jurisdiction, (iii) any request for additional
information on the part of the staff of the Commission or any such authorities
shall have been complied with to the satisfaction of the staff of the Commission
or such authorities and (iv) after the date hereof no amendment or supplement to
the Registration Statement or the Prospectus shall have been filed unless a
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copy thereof was first submitted to the Representatives and the Representatives
do not object thereto in good faith, and the Representatives shall have received
certificates, dated the Closing Date and, if later, the Option Closing Date and
signed by the Chief Executive Officer and the Chief Financial Officer of the
Company (who may, as to proceedings threatened, rely upon the best of their
information and belief), to the effect of clauses (i), (ii) and (iii) of this
paragraph.
(c) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, (i) there shall not have been
a material adverse change in the general affairs, business, business prospects,
properties, management, condition (financial or otherwise) or results of
operations of the Company or any of its Subsidiaries considered as a whole,
whether or not arising from transactions in the ordinary course of business, in
each case other than as described in or contemplated by the Registration
Statement and the Prospectus, and (ii) the Company shall not have sustained any
material loss or interference with its business or properties from fire,
explosion, flood or other casualty, whether or not covered by insurance, or from
any labor dispute or any court or legislative or other governmental action,
order or decree, which is not described in the Registration Statement and the
Prospectus, if in the judgment of the Representatives any such development makes
it impracticable or inadvisable to consummate the sale and delivery of the
Shares by the Underwriters at the public offering price.
(d) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall have been no
litigation or other proceeding instituted against the Company, any of its
Subsidiaries, or any of their officers or directors in their capacities as such,
before or by any Federal, state or local court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, in which
litigation or proceeding an unfavorable ruling, decision or finding would, in
the judgment of the Representatives, materially and adversely affect the
business, properties, business prospects, condition (financial or otherwise) or
results of operations of the Company or any of its Subsidiaries considered as a
whole.
(e) Each of the representations and warranties of the Company and
the Selling Shareholders contained herein shall be true and correct in all
material respects at the Closing Date and, with respect to the Option Shares, at
the Option Closing Date, and all covenants and agreements contained herein to be
performed on the part of the Company or the Selling Shareholders and all
conditions contained herein to be fulfilled or complied with by the Company or
the Selling Shareholders at or prior to the Closing Date and, with respect to
the Option Shares, at or prior to the Option Closing Date, shall have been duly
performed, fulfilled or complied with in all material respects.
(f) The Representatives shall have received an opinion, dated the
Closing Date and, with respect to the Option Shares, the Option Closing Date,
satisfactory in form and substance to the Representatives and counsel for the
Underwriters from Xxxxxx Xxxxxx White & McAliffe LLP, counsel to the Company and
the Selling Shareholders, with respect to the following matters.
(i) Each of the Company and its operating Subsidiaries is a
corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation;
has full corporate power and authority to conduct all the
activities conducted by it, to own all the assets owed by it and
to conduct its business as described in the Registration
Statement and Prospectus.
(ii) All of the outstanding shares of capital stock of the
Company (including the Selling Shareholder Shares) have been
duly authorized, validly issued and are fully paid and
nonassessable, to such counsel's knowledge, were issued pursuant
to exemptions from the registration and qualification
requirements of federal and applicable state securities laws,
and to such counsel's knowledge were not issued in violation of
or subject to any preemptive or similar rights;
(iii) The specimen certificate evidencing the Common Stock
filed as an exhibit to the Company's Registration Statement on
Form S-1 is in due and proper form under California law, the
Shares to be sold by the Company hereunder have been duly
authorized and, when issued and paid for as contemplated by this
Agreement, will be validly issued, fully paid and nonassessable;
and to such counsel's knowledge no
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preemptive or similar rights exist with respect to any of the
Shares or the issue and sale thereof.
(iv) All of the outstanding shares of capital stock of each
operating Subsidiary has been duly authorized and validly issued
and are fully paid and nonassessable, and owned by the Company.
(v) To such counsel's knowledge, except as disclosed in or
specifically contemplated by the Prospectus, there are no
outstanding options, warrants of other rights calling for the
issuance of, and no commitments, plans or arrangements to issue,
any shares of capital stock of the Company or any security
convertible into or exchangeable or exercisable for capital
stock of the Company.
(vi) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened to which the
Company or any of its Subsidiaries is a party or to which any of
their respective properties is subject that are required to be
described in the Registration Statement or the Prospectus but
are not so described.
(vii) No consent, approval, authorization or order of, or
any filing or declaration with, any court or governmental agency
or body is required for the consummation by the Company of the
transactions on its part contemplated under this Agreement,
except such as have been obtained or made under the Act or the
Rules and Regulations and such as may be required under state
securities or Blue Sky laws or the by-laws and rules of the NASD
in connection with the purchase and distribution by the
Underwriters of the Shares.
(viii) The Company has full corporate power and authority to
enter into this Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(ix) The execution and delivery of this Agreement, the
compliance by the Company with all of the terms hereof and the
consummation of the transactions contemplated hereby does not
contravene any provision of applicable law or the Articles of
Incorporation or Bylaws of the Company, and to the best of such
counsel's knowledge will not result in the creation or
imposition of any lien, charge or encumbrance upon any of the
assets of the Company pursuant to the terms and provisions of,
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or give any party
a right to terminate any of its obligations under, or result in
the acceleration of any obligation under, any indenture,
mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement or other evidence of
indebtedness, lease, contract or other agreement or instrument
known to such counsel to which the Company is a party or by
which the Company or any of its properties is bound or affected,
or violate or conflict with (i) any judgment, ruling, decree or
order known to such counsel or (ii) any statute, rule or
regulation of any court or other governmental agency or body,
applicable to the business or properties of the Company.
(x) To such counsel's knowledge, there is no document or
contract of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or
filed or incorporated by reference as required, and each
description of such contracts and documents that is contained in
the Registration Statement and Prospectus fairly presents in all
material respects the information required under the Act and the
Rules and Regulations.
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(xi) The Selling Shareholder Shares are duly listed on the
NNM and the Company Firm Shares have been duly authorized for
listing on the NNM, subject to notice of issuance.
(xii) To such counsel's knowledge, no holder of securities
of the Company has rights, which have not been waived or
satisfied, to require the register with the Commission shares of
Common Stock or other securities, as part of the offering
contemplated hereby.
(xiii) The Registration Statement has become effective under
the Act, and to such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been
instituted or is pending, threatened or contemplated.
(xiv) The Registration Statement and the Prospectus comply
as to form in all material respects with the requirement of the
Act and the Rules and Regulations (other than the financial
statements, schedules and other financial data contained or
incorporated by reference in the Registration Statement or the
Prospectus, as to which such counsel need express no opinion).
(xv) This Agreement and the Stockholders' Agreement have
each been duly executed and delivered by or on behalf of each
Selling Shareholder; the Shareholders' Agreement constitutes a
valid and binding agreement of such Selling Shareholder in
accordance with its terms, except as enforceability may be
limited by the application of bankruptcy, insolvency or other
laws affecting creditors' rights generally or by general
principles of equity; the performance by such Selling
Shareholder of this Agreement and the Shareholders' Agreement
and the consummation of the transactions contemplated hereby and
thereby will not result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or give
any party a right to terminate any of its obligations under, or
result in the acceleration of any obligation under any
indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement or other evidence of
indebtedness, lease, contract or other agreement or instrument
to which such Selling Shareholder is a party or by which such
Selling Shareholder or any of its properties is bound or
affected, or violate or conflict with any judgment, ruling,
decree, order, statute, rule or regulation of any court or other
governmental agency or body applicable to such Selling
Shareholder or, if such Selling Shareholder is a corporation,
partnership or other entity, the organizational documents of
such Selling Shareholder.
(xvi) No consent, approval, authorization or order of, or
any filing or declaration with, any court or governmental agency
or body is required for the consummation by the Selling
Shareholders of the transactions on their part contemplated by
this Agreement, except such as have been obtained or made under
the Act or the Rules and Regulations and such as may be required
under state securities or Blue Sky laws or the by-laws and rules
of the NASD in connection with the purchase and distribution by
the Underwriters of the Shares.
(xvii) Each Selling Shareholder has full legal right, power
and authority to enter into this Agreement and the Stockholders'
Agreement and to sell, assign, transfer and deliver the Shares
to be sold by such Selling Shareholder hereunder and, to such
counsel's knowledge, upon payment for such Shares and assuming
that the Underwriters are purchasing such Shares in good faith
and without notice of any other adverse claim within the meaning
of the Uniform Commercial Code, the Underwriters will have
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acquired all rights of such Selling Shareholder in such Shares
free of any adverse claim, any lien in favor of the Company and
any restrictions on transfer imposed by the Company.
(xviii)Such counsel shall state separately and not part of
its opinion that such counsel has participated in the
preparation of the Registration Statement and Prospectus and has
no reason to believe that, as of the Effective Date the
Registration Statement, or any amendment or supplement thereto,
(other than the financial statements, schedules and other
financial data contained or incorporated by reference therein,
as to which such counsel need express no opinion) contained any
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, or
any amendment or supplement thereto, as of its date and the
Closing Date and, if later, the Option Closing Date, contained
or contains any untrue statement of a material fact or omitted
or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading (other than the financial
statements, schedules and other financial data contained or
incorporated by reference therein, as to which such counsel need
express no opinion).
In rendering its opinion, such counsel may rely upon opinions of other
counsel retained by the Selling Shareholders reasonably acceptable to the
Representatives and as to matters of fact on certificates of the Selling
Shareholders, officers of the Company and governmental officials and the
representations and warranties of the Company and the Selling Shareholders
contained in this Agreement and the Shareholders' Agreement, provided that the
opinion of counsel to the Company and Selling Shareholders shall state that they
are doing so, that they have no reason to believe that they and the Underwriters
are not entitled to rely on such opinions or certificates and that copies of
such opinions or certificates are to be attached to the opinion.
(g) The representatives shall have received an opinion, dated the
Closing Date and the Option Closing Date, from Xxxx Xxxx Xxxx & Freidenrich LLP,
counsel to the Underwriters, with respect to the Registration Statement, the
Prospectus and this Agreement, which opinion shall be satisfactory in all
respects to the Representatives.
(h) Concurrently with the execution and delivery of this Agreement, the
Accountants shall have furnished to the Representatives a letter, dated the date
of its delivery, addressed to the Representatives and in form and substance
satisfactory to the Representatives, confirming that they are independent
accountants with respect to the Company and its Subsidiaries as required by the
Act and the Exchange Act and the Rules and Regulations and with respect to
certain financial and other statistical and numerical information contained or
incorporated by reference in the Registration Statement. At the Closing Date
and, as to the Option Shares, the Option Closing Date, the Accountants shall
have furnished to the Representatives a letter, dated the date of its delivery,
which shall confirm, on the basis of a review in accordance with the procedures
set forth in the letter from the Accountants, that nothing has come to their
attention during the period from the date of the letter referred to in the prior
sentence to a date (specified in the letter) not more than five days prior to
the Closing Date and the Option Closing Date, as the case may be, which would
require any change in their letter dated the date hereof if it were required to
be dated and delivered at the Closing Date and the Option Closing Date.
(i) Concurrently with the execution and delivery of this Agreement and
at the Closing Date and, as to the Option Shares, the Option Closing Date, there
shall be furnished to the Representatives a certificate, dated the date of its
delivery, signed by each of the Chief Executive Officer and the Chief Financial
Officer of the Company, in form and substance satisfactory to the
Representatives, to the effect that:
(i) Each signer of such certificate has carefully examined
the Registration Statement and the Prospectus and (A) as of the
date of such certificate, such documents are true and correct in
all material respects and do not omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, not untrue or misleading and (B) in the case
of the certificate delivered at the Closing Date and the Option
Closing Date, since the Effective Date no event has occurred as
a result of
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which it is necessary to amend or supplement the Prospectus in
order to make the statements therein not untrue or misleading in
any material respect.
(ii) Each of the representations and warranties of the
Company contained in this Agreement were, when originally made,
and are, at the time such certificate is delivered, true and
correct in all material respects.
(iii) Each of the covenants required to be performed by the
Company herein on or prior to the date of such certificate has
been duly, timely and fully performed and each condition herein
required to be satisfied or fulfilled on or prior to the date of
such certificate has been duly, timely and fully satisfied or
fulfilled.
(j) Concurrently with the execution and delivery of this Agreement and
at the Closing Date and, as to the Option Shares, the Option Closing Date, there
shall be furnished to the Representatives a certificate, dated the date of its
delivery, signed by the Selling Shareholders (or the Attorneys-in-Fact on their
behalf), in form and substance satisfactory to the Representatives, to the
effect that the representations and warranties of the Selling Shareholders
contained herein are true and correct in all material respects on and as of the
date of such certificate as if made on and as of the date of such certificate,
and each of the covenants and conditions required herein to be performed or
complied with by the Selling Shareholders on or prior to the date of such
certificate has been duly, timely and fully performed or complied with.
(k) On or prior to the Closing Date, the Representatives shall have
received the executed agreements referred to in Section 5(n).
(l) The Shares shall be qualified for sale in such jurisdictions as the
Representatives may reasonably request and each such qualification shall be in
effect and not subject to any stop order or other proceeding on the Closing Date
or the Option Closing Date.
(m) Prior to the Closing Date, the Shares shall have been duly
authorized for listing on the NNM upon official notice of issuance.
(n) The Company and the Selling Shareholders shall have furnished to the
Representatives such certificates, in addition to those specifically mentioned
herein, as the Representatives may have reasonably requested as to the accuracy
and completeness at the Closing Date and the Option Closing Date of any
statement in the Registration Statement or the Prospectus, as to the accuracy at
the Closing Date and the Option 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 its and their
respective obligations hereunder, or as to the fulfillment of the conditions
concurrent and precedent to the obligations hereunder of the Representatives.
7. Indemnification.
(a) The Company and each of the Selling Shareholders, jointly and
severally, will indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person, if any, who
controls each Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, from and against any and all losses, claims,
liabilities, expenses and damages (including any and all investigative, legal
and other expenses reasonably incurred in connection with, and any amount paid
in settlement of, any action, suit or proceeding or any claim asserted), to
which they, or any of them, may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, liabilities, expenses or damages
arise out of or are based on (i) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or supplement to the
Registration Statement or the Prospectus, or the omission or alleged omission to
state in such document a material fact required to be stated in it or necessary
to make the statements in it not misleading in the light of the circumstances in
which they were made, (ii) any untrue statement or alleged untrue statement of a
material fact contained in any materials or information provided to investors
by, or with the approval of the Company in connection with the marketing or the
offering of the Shares (herein called
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Marketing Materials), including any roadshow or investor presentations made to
investors by the Company (regardless of the medium by which such information is
transmitted, whether in person, telephonically, via facsimile or by other
electronic means) or the omission or alleged omission to state in the Marketing
Materials a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading or
(iii) arise out of or are based in whole or in part on any inaccuracy in the
representations and warranties of the Company or the Selling Shareholders
contained herein or any failure of the Company or the Selling Shareholders to
perform its or their obligations hereunder or under law in connection with the
transactions contemplated hereby; provided, however, that (i) the Company and
the Selling Shareholders will not be liable to the extent that such loss, claim,
liability, expense or damage arises from the sale of the Shares in the public
offering to any person by an Underwriter and is based on an untrue statement or
omission or alleged untrue statement or omission made in reliance on and in
conformity with information relating to any Underwriter furnished in writing to
the Company by the Representatives, on behalf of any Underwriter, expressly for
inclusion in the Registration Statement, the preliminary prospectus or the
Prospectus or any amendments or supplements to the Registration Statement or
Prospectus; (ii) the Company and the Selling Shareholders will not be liable to
any Underwriter, the directors, officers, employees or agents of such
Underwriter or any person controlling such Underwriter with respect to any loss,
claim, liability, expense, or damage arising out of or based on any untrue
statement or omission or alleged untrue statement or omission or alleged
omission to state a material fact in the preliminary prospectus which is
corrected in the Prospectus if the person asserting any such loss, claim,
liability, charge or damage purchased Shares from such Underwriter but was not
sent or given a copy of the Prospectus at or prior to the written confirmation
of the sale of such Shares to such person; and (iii) the liability of each
Selling Shareholder under this Section 7(a) shall not exceed the product of the
purchase price for each Share set forth in Section 1(a) hereof multiplied by the
number of Shares sold by such Selling Shareholder hereunder. The Company and the
Selling Shareholders acknowledge that the statements set forth under the heading
"Underwriting" in the preliminary prospectus and the Prospectus constitute the
only information relating to any Underwriter furnished in writing to the Company
by the Representatives on behalf of the Underwriters expressly for inclusion in
the Registration Statement, the preliminary prospectus or the Prospectus. This
indemnity agreement will be in addition to any liability that the Company and
the Selling Shareholders might otherwise have.
(b) Each Underwriter will indemnify and hold harmless the
Company, each director of the Company, each officer of the Company who signs the
Registration Statement, each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and each
Selling Shareholder to the same extent as the foregoing indemnity from the
Company and each Selling Shareholder to each Underwriter, as set forth in
Section 7(a), but only insofar as losses, claims, liabilities, expenses or
damages arise out of or are based on any untrue statement or omission or alleged
untrue statement or omission made in reliance on and in conformity with
information relating to any Underwriter furnished in writing to the Company by
the Representatives, on behalf of such Underwriter, expressly for use in the
Registration Statement, the preliminary prospectus or the Prospectus or any
amendments or supplements thereto. The Company and the Selling Shareholders
acknowledge that the statements set forth under the heading "Underwriting" in
the preliminary prospectus and the Prospectus constitute the only information
relating to any Underwriter furnished in writing to the Company by the
Representatives on behalf of the Underwriters expressly for inclusion in the
Registration Statement, the preliminary prospectus or the Prospectus. This
indemnity will be in addition to any liability that each Underwriter might
otherwise have.
(c) Any party that proposes to assert the right to be indemnified
under this Section 7 shall, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 7, notify each such
indemnifying party in writing of the commencement of such action, enclosing with
such notice a copy of all papers served, but the omission so to notify such
indemnifying party will not relieve it from any liability that it may have to
any indemnified party under the foregoing provisions of this Section 7 unless,
and only to the extent that, such omission results in the loss of substantive
rights or defenses by the indemnifying party. If any such action is brought
against any indemnified party and it notifies the indemnifying party of its
commencement, the indemnifying party will be entitled to participate in and, to
the extent that it elects by delivering written notice to the indemnified party
promptly after receiving notice of the commencement of the action from the
indemnified party, jointly with any other indemnifying party similarly notified,
to assume the defense of the action, with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense, the indemnifying party will not be
liable to the indemnified party for any legal or other expenses except
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as provided below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with the defense.
The indemnified party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel will be at the
expense of such indemnified party unless (i) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying party, (ii)
the indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party,
(iii) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (iv) the indemnifying
party has not in fact employed counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one
separate firm admitted to practice in such jurisdiction at any one time for all
such indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are
incurred. Any indemnifying party will not be liable for any settlement of any
action or claim effected without its written consent (which consent will not be
unreasonably withheld).
(d) If the indemnification provided for in this Section 7 is
applicable in accordance with its terms but for any reason is held to be
unavailable to or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) and (c) of this Section 7 in respect of any losses, claims,
liabilities, expenses and damages referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable (including any investigative, legal and
other expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company or the Selling Shareholders
from persons other than the Underwriters, such as persons who control the
Company within the meaning of the Act, officers of the Company who signed the
Registration Statement and directors of the Company, who also may be liable for
contribution) by such indemnified party as a result of such losses, claims,
liabilities, expenses and damages in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and the Selling
Shareholders, on the one hand, and the Underwriters, on the other hand. The
relative benefits received by the Company and the Selling Shareholders, on the
one hand, and the Underwriters, on the other hand, shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Shareholders bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. If, but only
if, the allocation provided by the foregoing sentence is not permitted by
applicable law, the allocation of contribution shall be made in such proportion
as is appropriate to reflect not only the relative benefits referred to in the
foregoing sentence but also the relative fault of the Company and the Selling
Shareholders, on the one hand, and the Underwriters, on the other hand, with
respect to the statements or omissions which resulted in such loss, claim,
liability, expense or damage, or action in respect thereof, as well as any other
relevant equitable considerations with respect to such offering. Such relative
fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, the Selling Shareholders or
the Representatives on behalf of the Underwriters, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, the Selling Shareholders and
the Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 7(d) were to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss claim, liability, expense or damage, or action in
respect thereof, referred to above in this Section 7(d) shall be deemed to
include, for purposes of this Section 7(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7(d), no Underwriter shall be required to contribute any amount in
excess of the underwriting discounts received by it and no person found guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 7(d) are several in proportion to their respective
underwriting obligations and not joint. For purposes of this Section 7(d), any
person who controls a party to this
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Agreement within the meaning of the Act will have the same rights to
contribution as that party, and each officer of the Company who signed the
Registration Statement will have the same rights to contribution as the Company,
subject in each case to the provisions hereof. Any party entitled to
contribution, promptly after receipt of notice of commencement of any action
against any such party in respect of which a claim for contribution may be made
under this Section 7(d), will notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 7(d). No party will be liable for
contribution with respect to any action or claim settled without its written
consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company and the Selling
Shareholders contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any investigation made by or on behalf of the
Underwriters, (ii) acceptance of any of the Shares and payment therefor or (iii)
any termination of this Agreement.
8. Reimbursement of Certain Expenses. In addition to its other
obligations under Section 7(a) of this Agreement, the Company hereby agrees to
reimburse on a quarterly basis the Underwriters for all reasonable legal and
other expenses incurred in connection with investigating or defending any claim,
action, investigation, inquiry or other proceeding brought by a third party
arising out of or based upon, in whole or in part, any statement or omission or
alleged statement or omission, or any inaccuracy in the representations and
warranties of the Company or the Selling Shareholder contained herein or failure
of the Company or the Selling Shareholders to perform its or their respective
obligations hereunder or under law, all as described in Section 7(a),
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the obligations under this Section 8 and the possibility that
such payment might later be held to be improper; provided, however, that, to the
extent any such payment is ultimately held to be improper, the persons receiving
such payments shall promptly refund them.
9. Termination. The obligations of the several Underwriters under
this Agreement may be terminated at any time on or prior to the Closing Date
(or, with respect to the Option Shares, on or prior to the Option Closing Date),
by notice to the Company and the Selling Shareholders from the Representatives,
without liability on the part of any Underwriter to the Company if, prior to
delivery and payment for the Firm Shares or Option Shares, as the case may be,
in the sole judgment of the Representatives, (i) trading in any of the equity
securities of the Company shall have been suspended by the Commission or by The
Nasdaq Stock Market, (ii) trading in securities generally on the Nasdaq Stock
Market shall have been suspended or limited or minimum or maximum prices shall
have been generally established on such exchange, or additional material
governmental restrictions, not in force on the date of this Agreement, shall
have been imposed upon trading in securities generally by such exchange, by
order of the Commission or any court or other governmental authority, or by The
Nasdaq Stock Market, (iii) a general banking moratorium shall have been declared
by either Federal or, New York State authorities or (iv) any material adverse
change in the financial or securities markets in the United States or in
political, financial or economic conditions in the United States or any outbreak
or material escalation of hostilities or other calamity or crisis shall have
occurred, the effect of which is such as to make it, in the sole judgment of the
Representatives, impracticable to proceed with completion of the public offering
or the delivery of and payment for the Shares.
If this Agreement is terminated pursuant to Section 10 hereof, neither
the Company nor any Selling Shareholder shall be under any liability to any
Underwriter except as provided in Sections 7 and 8 hereof; but, if for any other
reason the purchase of the Shares by the Underwriters is not consummated or if
for any reason the Company shall be unable to perform its obligations hereunder,
the Company and the Selling Shareholders will reimburse the several Underwriters
for all out-of-pocket expenses (including the fees, disbursements and other
charges of counsel to the Underwriters) incurred by them in connection with the
offering of the Shares.
10. Substitution of Underwriters. If any one or more of the
Underwriters shall fail or refuse to purchase any of the Firm Shares which it or
they have agreed to purchase hereunder, and the aggregate number of Firm Shares
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate number of Firm Shares,
the other Underwriters shall be obligated, severally, to purchase the Firm
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase, in the proportions which the number of Firm Shares which
they have respectively agreed to purchase pursuant to Section 1 bears to the
aggregate number of Firm Shares which all such non-defaulting Underwriters have
so agreed to purchase, or in such other proportions as the Representatives may
specify; provided that in no event shall the maximum number of Firm
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Shares which any Underwriter has become obligated to purchase pursuant to
Section 1 be increased pursuant to this Section 10 by more than one-ninth of
such number of Firm Shares without the prior written consent of such
Underwriter. If any Underwriter or Underwriters shall fail or refuse to purchase
any Firm Shares and the aggregate number of Firm Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase exceeds
one-tenth of the aggregate number of the Firm Shares and arrangements
satisfactory to the Representatives and the Company for the purchase of such
Firm Shares are not made within 48 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter, the
Company or the Selling Shareholders for the purchase or sale of any Shares under
this Agreement. In any such case either the Representatives or the Company shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and the Prospectus or in any other documents or arrangements may be
effected. Any action taken pursuant to this Section 10 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
11. Miscellaneous. Notice given pursuant to any of the provisions of
this Agreement shall be in writing and, unless otherwise specified, shall be
mailed or delivered (a) if to the Company or the Selling Shareholders, at the
office of the Company, 0000 Xxxxxxxxxx Xxxxx, Xxx Xxxxx, XX 00000, Attention:
Chief Executive Officer, with a copy to Xxxxxx X. Xxxxxx, Esq., Xxxxxx Xxxxxx
White & McAliffe, 000 Xxxxx Xxxxxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000, or (b) if to
the Underwriters, to the Representatives at the offices of Xxxxxxx & Company,
Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Finance
Department, with a copy to Xxxxxxx Xxxx, Esq., Xxxx Xxxx Xxxx & Freidenrich LLP,
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxx Xxxxx, XX 00000. Any such notice shall be
effective only upon receipt. Any notice under such Section 9 or 10 may be made
by telex or telephone, but if so made shall be subsequently confirmed in
writing.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company, the Selling Shareholders and the controlling
persons, directors and officers referred to in Section 7, and their respective
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" as used
in this Agreement shall not include a purchaser, as such purchaser, of Shares
from any of the several Underwriters.
Any action required or permitted to be made by the Representatives under
this Agreement may be taken by them jointly or by Xxxxxxx & Company, Inc.
This Agreement shall be governed by and construed in accordance with the
laws of the State of California applicable to contracts made and to be
performed entirely within such State.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
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The Company and the Underwriters each hereby waive any right they may
have to a trial by jury in respect of any claim based upon or arising out of
this Agreement or the transactions contemplated hereby. Please confirm that the
foregoing correctly sets forth the agreement among the Company and the several
Underwriters.
Very truly yours,
REMEC, Inc.
By:
-------------------------------
Title:
SELLING SHAREHOLDERS
(named in Schedule II hereto)
By:
-------------------------------
Attorney-in-Fact
Confirmed as of the date first above mentioned:
XXXXXXX & COMPANY, INC.
CIBC World Markets Corp.
Dain Rauschler Incorporated
X.X. Xxxxxxx & Sons, Inc.
Acting on behalf of themselves
and as the Representatives of
the several Underwriters
named in Schedule I hereto.
By: XXXXXXX & COMPANY, INC.
By:
-------------------------------
Title:
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SCHEDULE I
UNDERWRITERS
Number of
Firm Shares
Underwriters to be Purchased
------------ ---------------
Xxxxxxx & Company, Inc.......................
CIBC World Markets Corp......................
Dain Rauschler Incorporated..................
X.X. Xxxxxxx & Sons, Inc.....................
Total.................................... 3,500,000
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