500,000 Shares
PARK ELECTROCHEMICAL CORP.
Common Stock
UNDERWRITING AGREEMENT
February 22, 1996
XXXXXX BROTHERS INC.
XXXXXXX & COMPANY, INC.
XXXXXXXXX, XXXXXXXX & COMPANY LLC,
As Representatives of the several
Underwriters named in Schedule 1,
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxx Xxxxx (the "Selling Shareholder") proposes to sell an
aggregate of 500,000 shares (the "Stock") of the common stock, par value $.10
per share (the "Common Stock"), of Park Electrochemical Corp., a New York
corporation (the "Company"). This is to confirm the agreement concerning the
purchase of the Stock from the Selling Shareholder by the Underwriters named
in Schedule 1 hereto (the "Underwriters").
1. Representations, Warranties and Agreements of the Company.
The Company represents and warrants to, and agrees with, the Underwriters and
the Selling Shareholder that:
(a) A registration statement on Form S-3, and amendments
thereto, with respect to the Stock have (i) been prepared by the
Company in conformity with the requirements of the Securities Act
of 1933, as amended (the "Securities Act"), and the rules and
regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, (ii) been filed
with the Commission under the Securities Act and (iii) become
effective under the Securities Act; and a second registration
statement on Form S-3 with respect to the Stock (i) may also be
prepared by the Company in conformity with the requirements of the
Securities Act and the Rule and Regulations and (ii) if to be so
prepared, will be filed with the Commission under the Securities
Act on the date hereof pursuant to Rule 462(b) of the Rules and
Regulations. Copies of the first such registration statement and
the amendments to such registration statement, together with the
form of any such second registration statement, have been
delivered by the Company to you as the representatives (the
"Representatives") of the Underwriters. As used in this
Agreement, "Effective Time" means (i) with respect to the first
such registration statement, the date and the time as of which
such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the
Commission and (ii) with respect to any second registration
statement, the date and time as of which such second registration
statement is filed with the Commission, and "Effective Times" is
the collective reference to both Effective Times; "Effective Date"
means (i) with respect to the first such registration statement,
the date of the Effective Time of such registration statement and
(ii) with respect to any second registration statement, the date
of the Effective Time of such second registration statement, and
"Effective Dates" is the collective reference to both Effective
Dates; "Preliminary Prospectus" means each prospectus included in
any such registration statement, or amendments thereto, before it
became effective under the Securities Act and any prospectus filed
with the Commission by the Company with the consent of the
Representatives pursuant to Rule 424(a) of the Rules and
Regulations; "Primary Registration Statement" means the first
registration statement referred to in this Section 1(a), as
amended at its Effective Time, "Rule 462(b) Registration
Statement" means the second registration statement, if any,
referred to in this Section 1(a), when filed with the Commission,
and "Registration Statements" means both the Primary Registration
Statement and any Rule 462(b) Registration Statement, including in
each case any documents incorporated by reference therein at such
time and all information contained in the final prospectus filed
with the Commission pursuant to Rule 424(b) of the Rules and
Regulations in accordance with Section 6(a) hereof and deemed to
be a part of the Registration Statements as of the Effective Time
of the Primary Registration Statement pursuant to paragraph (b) of
Rule 430A of the Rules and Regulations; and "Prospectus" means
such final prospectus, as first filed with the Commission pursuant
to paragraph (1) or (4) of Rule 424(b) of the Rules and
Regulations. Reference made herein to any Preliminary Prospectus
or to the Prospectus shall be deemed to refer to and include any
documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act, as of the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and
any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any document filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), after the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference in such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference to any amendment
to either of the Registration Statements shall be deemed to
include any annual report of the Company filed with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
Effective Time that is incorporated by reference in the
Registration Statements. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
(b) The Primary Registration Statement conforms (and the
Rule 462(b) Registration Statement, if any, the Prospectus and any
further amendments or supplements to the Registration Statements
or the Prospectus, when they become effective or are filed with
the Commission, as the case may be, will conform) in all material
respects to the requirements of the Securities Act and the Rules
and Regulations and do not and will not, as of the applicable
Effective Date (as to the Registration Statements and any
amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) 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; provided that no representation
or warranty is made by the Company (i) as to information contained
in or omitted from the Registration Statements or the Prospectus
in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein or
(ii) as to information contained in or omitted from the
Registration Statements or the Prospectus with respect to the
Selling Shareholder in reliance upon and in conformity with
written information furnished to the Company by or on behalf of
the Selling Shareholder specifically for inclusion therein.
(c) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder, and none of such
documents, when they became effective or were filed with the
Commission, as the case may be, contained any untrue statement of
a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become effective
or are filed with Commission, as the case may be, will conform in
all material respects to the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder 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.
(d) The Company and each of its subsidiaries (as defined in
Section 17) have been duly incorporated and are validly existing
as corporations in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to
do business and are in good standing as foreign corporations in
each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires
such qualification except where the failure to be so qualified is
not reasonably likely to have a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations or business of the Company and its subsidiaries, and
have all power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they
are engaged; and none of the subsidiaries of the Company (other
than New England Laminates Co., Inc., Nelco Products, Inc., Nelco
Technology Inc., Neltec, Inc., Nelco Products Pte, Ltd. and Nelco
International Corporation (collectively, the "Significant
Subsidiaries")) is a "significant subsidiary", as such term is
defined in Rule 405 of the Rules and Regulations.
(e) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable, subject to Section 630
of the New York Business Corporation Law (the "BCL"), and conform
to the description thereof contained in the Prospectus; and all of
the issued shares of capital stock of each subsidiary of the
Company have been duly and validly authorized and issued and are
fully paid and non-assessable and (except for directors'
qualifying shares) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims.
(f) The Stock has been duly and validly authorized and is
duly and validly issued, fully paid and non-assessable, subject to
Section 630 of the BCL; and the Stock conforms to the description
thereof contained in the Prospectus.
(g) The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of
the transactions on the part of the Company contemplated hereby
will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties or assets
of the Company or any of its subsidiaries is subject other than
such breaches, violations or defaults which, singularly or in the
aggregate, would not reasonably be likely to have a material
adverse effect on the transactions contemplated by this Agreement
or on the trading price of the Common Stock, nor will such actions
result in any violation of the provisions of the charter or by-
laws of the Company or any of its subsidiaries or any statute or
any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets; and except for
the registration of the Stock under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the purchase
and distribution of the Stock by the Underwriters, no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required
for the execution, delivery and performance of this Agreement by
the Company and the consummation by the Company of the
transactions on the part of the Company contemplated hereby.
(h) There are no contracts, agreements or understandings
between the Company and any person granting such person the right
to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned
or to be owned by such person or to require the Company to include
such securities in the securities registered pursuant to the
Registration Statements or in any securities being registered
pursuant to any other registration statement filed by the Company
under the Securities Act.
(i) Except as described in the Prospectus, the Company has
not sold or issued any shares of Common Stock during the six-month
period preceding the date of the Prospectus, including any sales
pursuant to Rule 144A under, or Regulations D or S of, the
Securities Act, other than shares issued pursuant to employee
benefit plans, stock options plans or other employee compensation
plans or pursuant to outstanding options, rights or warrants.
(j) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial
statements included or incorporated by reference in the
Prospectus, any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since such date, there has
not been any material change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs or
management of the Company or the consolidated financial position,
stockholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in
the Prospectus.
(k) The financial statements (including the related notes
and supporting schedules) filed as part of the Registration
Statements or included or incorporated by reference in the
Prospectus present fairly the financial condition and results of
operations of the entities purported to be shown thereby, at the
dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles applied
on a consistent basis throughout the periods involved.
(l) To the best knowledge of the Company, Ernst & Young
LLP, who have certified certain financial statements of the
Company, whose reports appear in the Prospectus or are
incorporated by reference therein and who have delivered the
initial letter referred to in Section 9(f) hereof, are
independent public accountants as required by the Securities Act
and the Rules and Regulations; and, to the best knowledge of the
Company, Deloitte & Touche LLP and Xxxxxx Xxxxxxxx LLP, whose
respective reports appear in the Prospectus and are incorporated
by reference therein and who have each delivered the initial
letter referred to in Section 9(g) hereof, were independent
accountants as required by the Securities Act and the Rules and
Regulations during the periods covered by the respective financial
statements on which they reported as set forth in their respective
reports contained and incorporated in the Prospectus and as of the
date of such reports.
(m) The Company and each of its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not
materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and all real
property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and
enforceable leases, with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries.
(n) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as
is adequate for the conduct of their respective businesses and the
value of their respective properties and as is customary for
companies engaged in similar businesses in similar industries.
(o) Each of the Company and its subsidiaries owns or
possesses adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights and licenses
described in the Prospectus as being owned or used by it or which
are necessary for the conduct of its business and has no reason to
believe that the conduct of its business will conflict with, and
has not received any notice of any claim of conflict with, any
such rights of others which claims, singularly or in the
aggregate, if subject to an unfavorable decision, ruling or
finding, are reasonably likely to have a material adverse effect
on the consolidated financial position, stockholders' equity,
results of operations or business of the Company and its
subsidiaries.
(p) Except for environmental proceedings referred to under
the caption "Business--Environmental Matters" in the Prospectus,
there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any
property or asset of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of
its subsidiaries, are reasonably likely to have a material adverse
effect on the consolidated financial position, stockholders'
equity, results of operations, business or prospects of the
Company and its subsidiaries; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(q) The conditions for use of Form S-3, as set forth in
General Instruction I thereto, have been satisfied.
(r) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to
either of the Registration Statements by the Securities Act or by
the Rules and Regulations which have not been described in the
Prospectus or filed as exhibits to either of the Registration
Statements or incorporated therein by reference as permitted by
the Rules and Regulations.
(s) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other
hand, which is required to be described in the Prospectus which is
not so described.
(t) No labor disturbance by the employees of the Company
exists or, to the knowledge of the Company, is imminent which
might be expected to have a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its
subsidiaries.
(u) The Company is in compliance in all material respects
with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect
to any "pension plan" (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred and does
not expect to incur liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "pension plan"
or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986,
as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan"
for which the Company would have any liability that is intended to
be qualified under Section 401(a) of the Code is so qualified in
all material respects and nothing has occurred, whether by action
or by failure to act, which would cause the loss of such
qualification.
(v) The Company has filed all federal, state and local
income and franchise tax returns required to be filed through the
date hereof and has paid all taxes shown by such returns to be
due, and no tax deficiency has been determined adversely to the
Company or any of its subsidiaries which has had (nor does the
Company have any knowledge of any tax deficiency which, if
determined adversely to the Company or any of its subsidiaries,
might have) a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries.
(w) The Company (i) maintains and keeps accurate books and
records and (ii) maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (A)
transactions are executed in accordance with management's general
or specific authorization, (B) transactions are recorded as
necessary to permit preparation of its financial statements in
accordance with generally accepted accounting principles and to
maintain accountability for its assets, (C) access to its assets
is permitted only in accordance with management's general or
specific authorization and (D) the reported accountability for
its assets is compared with existing assets at reasonable
intervals.
(x) Neither the Company nor any of its subsidiaries (i) is
in violation of its charter or by-laws, (ii) is in default in any
respect, and no event has occurred which, with notice or lapse of
time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party
or by which it is bound or to which any of its properties or
assets is subject or (iii) is in violation in any respect of any
law, ordinance, governmental rule, regulation or court decree to
which it or its properties or assets may be subject or has failed
to obtain any material license, permit, certificate, franchise or
other governmental authorization or permit necessary to the
ownership of its properties or assets or to the conduct of its
business, other than such defaults, violations or failures
described in clauses (ii) or (iii) above which, singularly or in
the aggregate, are not reasonably likely to have a material
adverse effect on the consolidated financial position,
stockholders' equity, results of operations or business of the
Company and its subsidiaries.
(y) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes or hazardous
substances by the Company or any of its subsidiaries (or, to the
knowledge of the Company, any of their predecessors in interest)
at, upon or from any of the properties now or previously owned or
leased by the Company or its subsidiaries in violation of any
applicable law, ordinance, rule, regulation, order, judgment,
decree or permit or which would require remedial action under any
applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or remedial action
which would not have, or could not be reasonably likely to have,
singularly or in the aggregate with all such violations and
remedial actions, a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations
of the Company and its subsidiaries; there has been no material
spill, discharge, leak, emission, injection, escape, dumping or
release of any kind onto such property or into the environment
surrounding such property of any toxic wastes, medical wastes,
solid wastes, hazardous wastes or hazardous substances due to or
caused by the Company or any of its subsidiaries or with respect
to which the Company or any of its subsidiaries have knowledge,
except for any such spill, discharge, leak, emission, injection,
escape, dumping or release which would not have or would not be
reasonably likely to have, singularly or in the aggregate with all
such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a material adverse effect on the
consolidated financial position, stockholders' equity or results
of operations of the Company and its subsidiaries; and the terms
"hazardous wastes", "toxic wastes", "hazardous substances" and
"medical wastes" shall have the meanings specified in any
applicable local, state, federal and foreign laws or regulations
with respect to environmental protection.
(z) Neither the Company nor any subsidiary is an
"investment company" within the meaning of such term under the
Investment Company Act of 1940 and the rules and regulations of
the Commission thereunder.
2. Representations, Warranties and Agreements of the Selling
Shareholder. The Selling Shareholder represents and warrants to, and agrees
with, the Underwriters and the Company that:
(a) The Selling Shareholder has, and immediately prior to
the Delivery Date (as defined in Section 5 hereof) the Selling
Shareholder will have, good and valid title to the Stock, free and
clear of all liens, encumbrances, equities or claims; and upon
delivery of the Stock and payment therefor pursuant hereto, good
and valid title to the Stock, free and clear of all liens,
encumbrances, equities or claims, will pass to the several
Underwriters.
(b) The Selling Shareholder has full right, power and
authority to enter into this Agreement; the execution, delivery
and performance of this Agreement by the Selling Shareholder and
the consummation by the Selling Shareholder of the transactions on
his part contemplated hereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which
the Selling Shareholder is a party or by which the Selling
Shareholder is bound or to which any of the property or assets of
the Selling Shareholder is subject, nor will such actions result
in any violation of any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction
over the Selling Shareholder or the property or assets of the
Selling Shareholder; and, except for the registration of the Stock
under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in
connection with the purchase and distribution of the Stock by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency
or body is required for the execution, delivery and performance of
this Agreement by the Selling Shareholder and the consummation by
the Selling Shareholder of the transactions contemplated hereby.
(c) The statements or omissions made in the Registration
Statements, the Prospectus or any amendment or supplement thereto
made in reliance upon and in conformity with written information
furnished to the Company by the Selling Shareholder specifically
for use therein, as described in Section 10 (f), did not and will
not, when they become effective or are filed with the Commission,
as the case may be, 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.
(d) The Selling Shareholder has not taken and will not
take, directly or indirectly, any action which is designed to or
which has constituted or which might reasonably be expected to
cause or result in the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of
the shares of the Stock in violation of Rule 10b-6 under the
Exchange Act.
3. Purchase of the Stock by the Underwriters. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Selling Shareholder hereby agrees to sell
500,000 shares of Stock to the several Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase the number of
shares of the Stock set opposite that Underwriter's name in Schedule 1 hereto.
The price to be paid by the Underwriters for the Stock shall be $32.82 per
share.
The Selling Shareholder shall not be obligated to deliver any of
the Stock to be delivered on the Delivery Date except upon payment for all the
Stock to be purchased on the Delivery Date as provided herein.
4. Offering of Stock by the Underwriters.
Upon authorization by the Representatives of the release of the
Stock, the several Underwriters propose to offer the Stock for sale upon the
terms and conditions set forth in the Prospectus; provided, however, that no
Stock registered pursuant to the Rule 462(b) Registration Statement, if any,
shall be offered prior to the Effective Time thereof.
5. Delivery of and Payment for the Stock. Delivery of and
payment for the Stock shall be made at the offices of Xxxxxxx Xxxxxxx &
Xxxxxxxx at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., New
York City time, on the fourth full business day following the date of this
Agreement or at such other date or place as shall be determined by agreement
between the Representatives and the Company. This date and time are sometimes
referred to as the "Delivery Date." On the Delivery Date, the Selling
Shareholder shall deliver or cause to be delivered certificates representing
the Stock to the Representatives for the account of each Underwriter against
payment to or upon the order of the Selling Shareholder of the purchase price
by certified or official bank check or checks payable in New York Clearing
House (next-day) funds. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of each Underwriter hereunder. Upon delivery, the Stock shall
be registered in such names and in such denominations as the Representatives
shall request in writing not less than two full business days prior to the
Delivery Date. For the purpose of expediting the checking and packaging of
the certificates for the Stock, the Company and the Selling Shareholder shall
make the certificates representing the Stock available for inspection by the
Representatives in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to the Delivery Date.
6. Further Agreements of the Company. The Company agrees:
(a) To prepare the Rule 462(b) Registration Statement, if
necessary, in a form approved by the Representatives and to file
such Rule 462(b) Registration Statement with the Commission on the
date hereof; to prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule
424(b) under the Securities Act not later than 10:00 A.M., New
York City time, the day following the execution and delivery of
this Agreement; to make no further amendment or any supplement to
the Registration Statements or to the Prospectus prior to the
Delivery Date except as permitted herein; to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to either Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed and to furnish the
Representatives with copies thereof; to file promptly all reports
and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a
prospectus is required in connection with the offering or sale of
the Stock; to advise the Representatives, promptly after it
receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statements or the
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus
or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and
to counsel for the Underwriters a signed copy of each of the
Registration Statements as originally filed with the Commission,
and each amendment thereto filed with the Commission, including
all consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives in New York
City such number of the following documents as the Representatives
shall request: (i) conformed copies of the Registration
Statements as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than this
Agreement and the computation of per share earnings), (ii) each
Preliminary Prospectus, the Prospectus (not later than 10:00 A.M.,
New York City time, of the day following the execution and
delivery of this Agreement) and any amended or supplemented
Prospectus (not later than 10:00 A.M., New York City time, on the
day following the date of such amendment or supplement) and (iii)
any document incorporated by reference in the Prospectus
(excluding exhibits thereto); and, if the delivery of a prospectus
is required at any time after the Effective Time of the Primary
Registration Statement in connection with the offering or sale of
the Stock (or any other securities relating thereto) and if at
such time any events shall have occurred as a result of which the
Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities
Act or the Exchange Act, to notify the Representatives and, upon
their request, to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities
as many copies as the Representatives may from time to time
request of an amended or supplemented Prospectus which will
correct such statement or omission or effect such compliance;
(d) To file promptly with the Commission any amendment to
the Registration Statements or the Prospectus or any supplement to
the Prospectus that may, in the reasonable judgment of the Company
or the Representatives, be required by the Securities Act or
requested by the Commission;
(e) Prior to filing with the Commission (i) any amendment
to either of the Registration Statements, any supplement to the
Prospectus or any document incorporated by reference in the
Prospectus or (ii) any Prospectus pursuant to Rule 424 of the
Rules and Regulations, to furnish a copy thereof to the
Representatives and counsel for the Underwriters and obtain the
consent of the Representatives to the filing;
(f) As soon as practicable after the Effective Date of the
Primary Registration Statement, to make generally available to the
Company's security holders and to deliver to the Representatives
an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the
option of the Company, Rule 158);
(g) For a period of three years following the Effective
Date of the Primary Registration Statement, to furnish to the
Representatives copies of all materials furnished by the Company
to its shareholders and all public reports and all reports and
financial statements furnished by the Company to the principal
national securities exchange upon which the Common Stock may be
listed pursuant to requirements of or agreements with such
exchange or to the Commission pursuant to the Exchange Act or any
rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Stock for
offering and sale under the securities laws of such jurisdictions
as the Representatives may request and to comply with such laws so
as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Stock; provided that in connection therewith
the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in
any jurisdiction or to subject itself to taxation in any
jurisdiction in which it is not currently subject to taxation; and
(i) For a period of 90 days from the date of the
Prospectus, not to, directly or indirectly, offer for sale, sell
or otherwise dispose of (or enter into any transaction or device
which is designed to, or could be expected to, result in the
disposition or purchase by any person at any time in the future
of) any shares of Common Stock (other than the Stock and shares
offered or issued pursuant to employee benefit plans, stock option
plans or other employee compensation plans existing on the date
hereof or pursuant to currently outstanding options, warrants or
rights and other than in connection with the offer for sale, or
the conversion, of the Company's Convertible Subordinated Notes
(the "Notes") being offered contemporaneously with the offering of
the Stock), or sell or grant options, rights or warrants with
respect to any shares of Common Stock (other than the grant of
options pursuant to option plans existing on the date hereof and
other than in connection with the offer, or conversion, of the
Notes), without the prior written consent of Xxxxxx Brothers Inc.;
and to cause each officer and director of the Company to furnish
to the Representatives, prior to the First Delivery Date, a letter
or letters, in form and substance reasonably satisfactory to
counsel for the Underwriters, pursuant to which each such person
shall agree not to, directly or indirectly, offer for sale, sell
or otherwise dispose of (or enter into any transaction or device
which is designed to, or could be expected to, result in the
disposition or purchase by any person at any time in the future
of) any shares of Common Stock for a period of 90 days from the
date of the Prospectus, without the prior written consent of
Xxxxxx Brothers Inc.
7. Further Agreements of the Selling Shareholder. The Selling
Shareholder agrees:
(a) For a period of one year from the date of the
Prospectus, not to, directly or indirectly, offer for sale, sell
or otherwise dispose of (or enter into any transaction or device
which is designed to, or could be expected to, result in the
disposition or purchase by any person at any time in the future
of) any shares of Common Stock (other than the Stock), without the
prior written consent of Xxxxxx Brothers Inc.; provided, however,
that nothing herein shall prohibit or require any consent for (1)
gifts by the Selling Shareholder made more than 90 days after the
date of the Prospectus of up to an aggregate of 15,000 shares of
Common Stock or (2) the offer for sale, sale or other disposition
of shares of Common Stock in connection with a default or event of
default under the terms of one or more loans to the Selling
Shareholder in an aggregate principal amount not in excess of $1
million secured by shares of Common Stock or the pledge of shares
of Common Stock by the Selling Shareholder to secure any such
loans.
(b) That the Stock to be sold by the Selling Shareholder
hereunder is subject to the interest of the Underwriters and that
the obligations of the Selling Shareholder hereunder shall not be
terminated by any act of the Selling Shareholder, by operation of
law, by the death or incapacity of the Selling Shareholder or the
occurrence of any other event.
(c) To deliver to the Representatives prior to the Delivery
Date a properly completed and executed United States Treasury
Department Form W-9.
8. Expenses. The Company agrees to pay (a) the costs incident to
the sale and delivery of the Stock and any taxes payable in that connection;
(b) the costs incident to the preparation, printing and filing under the
Securities Act of the Registration Statements and any amendments and exhibits
thereto (other than filing fees of the Commission relating to the Stock); (c)
the costs of distributing the Registration Statements as originally filed and
each amendment thereto and any post-effective amendments thereof (including,
in each case, exhibits), any Preliminary Prospectus, the Prospectus and any
amendment or supplement to the Prospectus or any document incorporated by
reference therein, all as provided in this Agreement; (d) the costs of
reproducing and distributing this Agreement; (e) the costs of distributing the
terms of agreement relating to the organization of the underwriting syndicate
and selling group to the members thereof by mail, telex or other means of
communication; (f) any applicable listing or other fees; (g) the fees and
expenses of preparing, printing and distributing a Blue Sky Memorandum
(including related fees and expenses of counsel to the Underwriters); and (h)
all other costs and expenses incident to the performance of the obligations of
the Company and, except as otherwise specifically provided in this Section 8,
of the Selling Shareholder under this Agreement. The Selling Shareholder
agrees to pay (a) the filing fees relating to securing any required review by
the National Association of Securities Dealers, Inc. of the terms of the sale
of the Stock, (b) the fees and expenses of qualifying the Stock under the
securities laws of the several jurisdictions as provided in Section 6(h)
(including related fees and expenses of counsel to the Underwriters), (c) any
transfer taxes payable in connection with the sale of the Stock to the
Underwriters, (d) the filing fees of the Commission under the Securities Act
relating to the Stock and (e) legal fees of counsel to the Selling
Shareholder. Except as provided in this Section 8 and in Section 13, the
Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Stock which they may sell
and the expenses of advertising any offering of the Stock made by the
Underwriters.
9. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when
made and on the Delivery Date, of the representations and warranties of the
Company and the Selling Shareholder contained herein, to the performance by
the Company and the Selling Shareholder of their respective obligations
hereunder, and to each of the following additional terms and conditions:
(a) The Rule 462(b) Registration Statement, if any, and the
Prospectus shall have been timely filed with the Commission in
accordance with Section 6(a); no stop order suspending the
effectiveness of either of the Registration Statements or any part
thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and any
request of the Commission for inclusion of additional information
in either of the Registration Statements or the Prospectus or
otherwise shall have been complied with or withdrawn.
(b) No Underwriter shall have discovered and disclosed to
the Company on or prior to the Delivery Date that either of the
Registration Statements or the Prospectus or any amendment or
supplement thereto contains any untrue statement of a fact which,
in the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the
Underwriters, is material or omits to state any fact which, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this
Agreement, the Stock, the Registration Statements and the
Prospectus, and all other legal matters relating to this Agreement
and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel for the
Underwriters, and the Company and the Selling Shareholder shall
have furnished to such counsel all documents and information that
they may reasonably request to enable them to pass upon such
matters.
(d) Xxxxx X. Xxxxx, Esq. shall have furnished to the
Representatives his written opinion, as special counsel to the
Company, addressed to the Underwriters and dated the Delivery
Date, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) The Company and each of its Significant
Subsidiaries have been duly incorporated and are validly
existing as corporations in good standing under the laws of
their respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing as foreign
corporations in each jurisdiction specified in such opinion,
and have all power and authority necessary to own or hold
their respective properties and conduct the businesses in
which they are engaged;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company (including the shares of Stock)
have been duly and validly authorized and issued, are fully
paid and non-assessable (subject to Section 630 of the BCL)
and conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock of
each Significant Subsidiary of the Company have been duly
and validly authorized and issued and are fully paid, non-
assessable (except as otherwise provided by applicable law)
and (except for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(iii) There are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any shares of the Stock pursuant to
the Company's charter or by-laws or any agreement or other
instrument known to such counsel;
(iv) To the best of such counsel's knowledge and other
than as referred to under the caption "Business--
Environmental Matters" in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property
or asset of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any
of its subsidiaries, are reasonably likely to have a
material adverse effect on the consolidated financial
position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries;
and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(v) The Primary Registration Statement was declared
effective under the Securities Act as of the date and time
specified in such opinion, the Rule 462(b) Registration
Statement, if any, was filed with the Commission on the date
specified therein, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) of
the Rules and Regulations specified in such opinion on the
date specified therein and, to the knowledge of such
counsel, no stop order suspending the effectiveness of
either of the Registration Statements has been issued and no
proceeding for that purpose is pending or threatened by the
Commission;
(vi) The Registration Statements, as of their
respective Effective Dates, and the Prospectus, as of its
date, and any further amendments or supplements thereto, as
of their respective dates, made by the Company prior to the
Delivery Date (other than the financial statements and other
financial and statistical data contained therein, as to
which such counsel need express no opinion) complied as to
form in all material respects with the requirements of the
Securities Act and the Rules and Regulations; and the
documents incorporated by reference in the Prospectus (other
than the financial statements and related schedules and
other financial and statistical data contained therein, as
to which such counsel need express no opinion), when they
were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder;
(vii) To the best of such counsel's knowledge, there
are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the
Registration Statements by the Securities Act or by the
Rules and Regulations which have not been described or filed
as exhibits to the Registration Statements or incorporated
therein by reference as permitted by the Rules and
Regulations;
(viii) This Agreement has been duly authorized, executed
and delivered by the Company;
(ix) The sale of the shares of Stock by the Selling
Shareholder and the compliance by the Company and the
Selling Shareholder with all of the provisions of this
Agreement and the consummation by the Company and the
Selling Shareholder of the transactions on their respective
parts contemplated hereby will not conflict with or result
in a breach or violation of any of the terms or provisions
of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other material
agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which
any of the properties or assets of the Company or any of its
subsidiaries is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws of the
Company or any of its subsidiaries or any statute or any
order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their
properties or assets; and, except for the registration of
the Stock under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications
as may be required under the Exchange Act and applicable
state securities laws in connection with the purchase and
distribution of the Stock by the Underwriters (in the case
of such state securities laws, as to which such counsel need
express no opinion), no consent, approval, authorization or
order of, or filing or registration with, any such court or
governmental agency or body is required for the execution,
delivery and performance of this Agreement by the Company
and the consummation of the transactions on the part of the
Company contemplated hereby; and
(x) To the best of such counsel's knowledge, there
are no contracts, agreements or understandings between the
Company and any person granting such person the right to
require the Company to file a registration statement under
the Securities Act with respect to any securities of the
Company owned or to be owned by such person or to require
the Company to include such securities in the securities
registered pursuant to the Registration Statements or in any
securities being registered pursuant to any other
registration statement filed by the Company under the
Securities Act.
In rendering such opinion, such counsel may state that his opinion
is limited to matters governed by the Federal laws of the United
States of America and the laws of the State of New York. Such
counsel shall also have furnished to the Representatives a written
statement, addressed to the Underwriters and dated the Delivery
Date, in form and substance reasonably satisfactory to the
Representatives, to the effect that (x) such counsel has acted as
counsel to the Company on a regular basis with respect to
corporate and securities law matters (although the Company is also
represented by its General Counsel and, with respect to certain
other matters, by other outside counsel) and has acted as counsel
to the Company in connection with the preparation of the
Registration Statements, and (y) based on the foregoing, no facts
have come to the attention of such counsel which lead him to
believe that (I) the Registration Statements (other than the
financial statements and other financial and statistical data
contained therein, as to which such counsel need make no such
written statement), as of their respective Effective Dates,
contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or that
the Prospectus (other than the financial statements and other
financial and statistical data contained therein, as to which such
counsel need make no such written statement) contains any untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading or (II) any document incorporated by
reference in the Prospectus or any further amendment or supplement
to any such incorporated document made by the Company prior to the
Delivery Date (other than the financial statements and other
financial and statistical data contained therein, as to which such
counsel need make no such written statement), when they became
effective or were filed with the Commission, as the case may be,
contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading. The foregoing opinion and statement may be
qualified by a statement to the effect that, except as stated in
paragraph (ii) above, such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statements or the
Prospectus.
(e) Xxxxx X. Xxxxx, Esq., as counsel for the Selling
Shareholder, shall have furnished to the Representatives his
written opinion, addressed to the Underwriters and dated the
Delivery Date, in form and substance reasonably satisfactory to
the Representatives, to the effect that:
(i) The Selling Shareholder has full right, power and
authority to enter into this Agreement; the execution,
delivery and performance of this Agreement by the Selling
Shareholder and the consummation by the Selling Shareholder
of the transactions on the part of the Selling Shareholder
contemplated hereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any statute, any indenture,
mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which the Selling
Shareholder is a party or by which the Selling Shareholder
is bound or to which any of the property or assets of the
Selling Shareholder is subject, nor will such actions result
in any violation of any statute or any order, rule or
regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the
Selling Shareholder or the property or assets of the Selling
Shareholder; and, except for the registration of the Stock
under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state
securities laws in connection with the purchase and
distribution of the Stock by the Underwriters (as to which
such counsel need express no opinion), no consent, approval,
authorization or order of, or filing or registration with,
any such court or governmental agency or body is required
for the execution, delivery and performance of this
Agreement by the Selling Shareholder and the consummation by
the Selling Shareholder of the transactions on the part of
the Selling Shareholder contemplated hereby;
(ii) This Agreement has been duly executed and
delivered by or on behalf of the Selling Shareholder; and
(iii) Upon payment for, and delivery of, the shares of
Stock to be sold by the Selling Shareholder under this
Agreement in accordance with the terms hereof, the
Underwriters will acquire all of the rights of the Selling
Shareholder in such shares and will also acquire the
interest of the Selling Shareholder in such shares free of
any adverse claim (within the meaning of the Uniform
Commercial Code).
In rendering such opinion, such counsel may (i) state that his
opinion is limited to matters governed by the Federal laws of the
United States of America and the laws of the State of New York and
(ii) in rendering the opinion in Section 9(e)(iii) above, rely
upon a certificate of the Selling Shareholder in respect of
matters of fact as to ownership of, and the absence of adverse
claims regarding, the shares of Stock sold by the Selling
Shareholder, provided that such counsel shall furnish copies
thereof to the Representatives and state that he believes that
both the Underwriters and he are justified in relying upon such
certificate. Such counsel shall also have furnished to the
Representatives a written statement, addressed to the Underwriters
and dated the Delivery Date, in form and substance reasonably
satisfactory to the Representatives, to the effect that (x) such
counsel has acted as counsel to the Selling Shareholder in
connection with the preparation of the Registration Statements,
and (y) based on the foregoing, no facts have come to the
attention of such counsel which lead him to believe that the
Registration Statements (other than the financial statements and
other financial and statistical data contained therein, as to
which such counsel need make no such written statement), as of
their respective Effective Dates, contained any untrue statement
of a material fact relating to the Selling Shareholder or omitted
to state such a material fact required to be stated therein or
necessary in order to make the statements therein not misleading,
or that the Prospectus (other than the financial statements and
other financial and statistical data contained therein, as to
which such counsel need make no such written statement) contains
any untrue statement of a material fact relating to the Selling
Shareholder or omits to state such a material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading. The foregoing opinion and statement may be
qualified by a statement to the effect that such counsel, as
counsel to the Selling Shareholder, does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statements or the
Prospectus.
(f) With respect to the letter of Ernst & Young LLP
delivered to the Representatives concurrently with the execution
of this Agreement (as used in this paragraph, the "initial
letter"), the Company shall have furnished to the Representatives
a letter (as used in this paragraph, the "bring-down letter") of
such accountants, addressed to the Underwriters and dated the
Delivery Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission, (ii) stating, as of the date of the bring-down
letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not
more than five days prior to the date of the bring-down letter),
the conclusions and findings of such firm with respect to the
financial information and other matters covered by the initial
letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(g) With respect to the letter of each of Deloitte & Touche
LLP and Xxxxxx Xxxxxxxx LLP delivered to the Representatives
concurrently with the execution of this Agreement (each, as used
in this paragraph, the "initial letter"), the Company shall have
furnished to the Representatives a letter (as used in this
paragraph, the "bring-down letter") of each such accountants,
addressed to the Underwriters and dated the Delivery Date (i)
confirming that such accountants were independent public
accountants within the meaning of the Securities Act and were in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of
the Commission during the periods covered by the respective
financial statements on which they reported as set forth in their
respective reports contained and incorporated in the Prospectus
and as of the date of such reports and (ii) confirming in all
material respects the conclusions and findings set forth in such
accountants' initial letter.
(h) The Company shall have furnished to the Representatives
a certificate, dated the Delivery Date, of its Chairman of the
Board or an Executive Vice President and its chief financial
officer stating that:
(i) The representations, warranties and agreements of
the Company in Section 1 are true and correct as of the
Delivery Date; the Company has complied with all its
agreements contained herein; and the condition set forth in
Section 9(a) has been fulfilled;
(ii) Neither the Company nor any of its subsidiaries
has sustained since the date of the latest audited financial
statements included or incorporated by reference in the
Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the
Prospectus and since such date there has not been any
material adverse change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a
prospective material adverse change, in or affecting the
general affairs or management of the Company or the
consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the
Prospectus; and
(iii) They have carefully examined the Registration
Statements and the Prospectus and, in their opinion (A) the
Registration Statements, as of their respective Effective
Dates, and the Prospectus, as of each of the Effective
Dates, did not include any untrue statement of a material
fact and did not omit to state any material fact required to
be stated therein or necessary to make the statements
therein not misleading, and (B) since the Effective Date of
the Primary Registration Statement no event has occurred
which is required to have been set forth in a supplement or
amendment to either of the Registration Statements or the
Prospectus which has not been set forth in such a supplement
or amendment.
(i) The Selling Shareholder shall have furnished to the
Representatives a certificate, dated the Delivery Date, signed by
the Selling Shareholder stating that:
(i) The representations, warranties and agreements of
the Selling Shareholder contained herein are true and
correct as of the Delivery Date and that the Selling
Shareholder has complied with all agreements contained
herein to be performed by the Selling Shareholder at or
prior to the Delivery Date; and
(ii) The Selling Shareholder has carefully examined
the statements made in the Registration Statements, the
Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information
furnished to the Company by the Selling Shareholder
specifically for use therein, as described in Section 10
(f), and in his opinion (A) in the case of the Registration
Statements, as of their respective Effective Dates, and the
Prospectus, as of each of the Effective Dates, such
statements did not include any untrue statement of a
material fact and did not omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, and (B) since the
Effective Date of the Primary Registration Statement no
event has occurred with respect to the Selling Shareholder
which is required to have been set forth in a supplement or
amendment to either of the Registration Statements or the
Prospectus which has not been set forth in such a supplement
or amendment.
(j) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the Prospectus or (ii) since such date there shall
not have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the
general affairs or management of the Company or the consolidated
financial position, stockholders' equity or results of operations
of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is, in the reasonable
judgment of the Representatives, so material and adverse as to
make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Stock on the terms and in the
manner contemplated in the Prospectus.
(k) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following: (i)
trading in securities generally on the New York Stock Exchange or
the American Stock Exchange or in the over-the-counter market, or
trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or such
market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction,
(ii) a banking moratorium shall have been declared by Federal or
state authorities, (iii) the United States shall have become
engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or
(iv) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect
of international conditions on the financial markets in the United
States shall be such) as to make it, in the judgment of a majority
in interest of the several Underwriters, impracticable or
inadvisable to proceed with the public offering or delivery of the
Stock on the terms and in the manner contemplated in the
Prospectus.
All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
10. Indemnification and Contribution.
(a) The Company and Nelco International Corporation, a Delaware
corporation and a wholly-owned subsidiary of the Company (the "Principal
Subsidiary"), jointly and severally, shall indemnify and hold harmless each
Underwriter, its officers and employees and each person, if any, who controls
any Underwriter within the meaning of the Securities Act and the Selling
Shareholder, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Stock), to which that Underwriter, officer, employee or controlling person or
Selling Stockholder may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, either of the Registration
Statements or the Prospectus, or in any amendment or supplement thereto, or
(B) in any blue sky application or other document prepared or executed by the
Company (or based upon any written information furnished by the Company)
specifically for the purpose of qualifying any or all of the Stock under the
securities laws of any state or other jurisdiction (any such application,
document or information being hereinafter called a "Blue Sky Application"), or
(ii) the omission or alleged omission to state in any Preliminary Prospectus,
either of the Registration Statements or the Prospectus, or in any amendment
or supplement thereto, or in any Blue Sky Application any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and shall reimburse each Underwriter and each such officer,
employee and controlling person and the Selling Shareholder promptly upon
demand for any legal or other expenses reasonably incurred by that
Underwriter, officer, employee or controlling person or Selling Shareholder in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company and the Principal Subsidiary shall not be
liable (x) to any Underwriter or any such officer, employee or controlling
person in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or in
any such amendment or supplement, or in any Blue Sky Application in reliance
upon and in conformity with the written information furnished to the Company
through the Representatives by or on behalf of any Underwriter specifically
for inclusion therein as described in Section 10(f) or (y) to the Selling
Shareholder in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or in
any such amendment or supplement, or in any Blue Sky Application in reliance
upon and in conformity with the written information furnished to the Company
by or on behalf of the Selling Shareholder specifically for inclusion therein
as described in Section 10(f). The foregoing indemnity agreement is in
addition to any liability which the Company or the Principal Subsidiary may
otherwise have to any Underwriter or to any officer, employee or controlling
person of that Underwriter or to the Selling Shareholder.
(b) The Selling Shareholder shall indemnify and hold harmless
the Company, its officers and employees, each of its directors and each
person, if any, who controls the Company within the meaning of the Securities
Act, each Underwriter, its officers and employees and each person, if any, who
controls any Underwriter within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action
in respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Stock), to which the
Company, or any such director, officer, employee or controlling person of the
Company or such Underwriter, or any such officer, employee or controlling
person of such Underwriter may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of
a material fact contained (A) in any Preliminary Prospectus, either of the
Registration Statements or the Prospectus, or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, either of the Registration
Statements or the Prospectus, or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Selling Shareholder
specifically for inclusion therein as described in Section 10(f), and shall
reimburse the Company and any such director, officer, employee or controlling
person of the Company and each Underwriter, its officers and employees and
each such controlling person of such Underwriter promptly upon demand for any
legal or other expenses reasonably incurred by the Company or any such
director, officer, employee or controlling person of the Company or such
Underwriter, its officers, employees or controlling person of such Underwriter
in connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which the Selling Shareholder may otherwise have to the Company or any such
director, officer, employee or controlling person of the Company or any
Underwriter or any officer, employee or controlling person of that
Underwriter. In no event shall the Selling Shareholder be liable under this
Section 10 for an aggregate amount in excess of the aggregate initial public
offering price of the Stock as set forth on the cover page of the Prospectus.
(c) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, its officers and employees, each of its
directors, each person, if any, who controls the Company within the meaning of
the Securities Act, and the Selling Shareholder, from and against any loss,
claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company or any such director, officer or controlling
person or the Selling Shareholder may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue statement
of a material fact contained (A) in any Preliminary Prospectus, either of the
Registration Statements or the Prospectus, or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, either of the Registration
Statements or the Prospectus, or in any amendment or supplement thereto, or in
any Blue Sky Application any material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
the written information furnished to the Company through the Representatives
by or on behalf of that Underwriter specifically for inclusion therein as
described in Section 10(f), and shall reimburse the Company, any such
director, officer or controlling person and the Selling Shareholder for any
legal or other expenses reasonably incurred by the Company, any such director,
officer or controlling person or the Selling Shareholder in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company, any such director, officer or
controlling person or the Selling Shareholder.
(d) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 10, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 10 except to the extent it
has been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 10. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party,
to assume the defense thereof 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 of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 10 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the Representatives
shall have the right to employ counsel to represent jointly the
Representatives and those other Underwriters and their respective officers,
employees and controlling persons who may be subject to liability arising out
of any claim in respect of which indemnity may be sought by the Underwriters
against the Company, the Principal Subsidiary or the Selling Shareholder under
this Section 10 if, in the reasonable judgment of the Representatives, it is
advisable for the Representatives and those Underwriters, officers, employees
and controlling persons to be jointly represented by separate counsel, and in
that event the fees and expenses of such separate counsel shall be paid by the
Company, the Principal Subsidiary and, if it is a claim in respect of which
indemnification may be sought by the Underwriters against the Selling
Shareholder, the Selling Shareholder. Each indemnified party, as a condition
of the indemnity agreements contained in Sections 10(a), 10(b) and 10(c),
shall use its best efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall (i) without
the prior written consent of the indemnified parties (which consent shall not
be unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for
any settlement of any such action effected without its prior written consent
(which consent shall not be unreasonably withheld), but if settled with its
prior written consent or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(e) If the indemnification provided for in this Section 10 shall
for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 10(a), 10(b) or 10(c) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and the Selling
Shareholder on the one hand and the Underwriters on the other from the
offering of the Stock or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Selling Shareholder on the one
hand and the Underwriters on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action
in respect thereof, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling Shareholder on
the one hand and the Underwriters on the other with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from
the offering of the Stock purchased under this Agreement (before deducting
expenses) received by the Selling Shareholder, on the one hand, and the total
underwriting discounts and commissions received by the Underwriters with
respect to the shares of the Stock purchased under this Agreement, on the
other hand, bear to the total gross proceeds from the offering of the shares
of the Stock under this Agreement, in each case as set forth in the table on
the cover page of the Prospectus. The 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 or the Selling Shareholder, or 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 Principal Subsidiary, the Selling Shareholder and
the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 10(e) 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, damage or liability,
or action in respect thereof, referred to above in this Section 10(e) shall be
deemed to include, for purposes of this Section 10(e), 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 10(e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Stock underwritten by it and distributed to the public was offered
to the public exceeds the amount of any damages which such Underwriter has
otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall 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 10(e) are several in proportion to
their respective underwriting obligations and not joint.
(f) The Underwriters severally confirm that the statements with
respect to the public offering of the Stock set forth on the cover page of,
and under the caption "Underwriting" in, the Prospectus are correct and
constitute the only information furnished in writing to the Company by or on
behalf of the Underwriters specifically for inclusion in the Registration
Statements and the Prospectus. The Selling Shareholder confirms that the
statements set forth under the caption "Selling Shareholder" in the Prospectus
(other than statements therein expressly made by the Company) are correct and
constitute the only information furnished in writing to the Company by or on
behalf of the Selling Shareholder specifically for inclusion in the
Registration Statements and the Prospectus.
11. Defaulting Underwriters.
If, on the Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining non-
defaulting Underwriters shall be obligated to purchase the Stock which the
defaulting Underwriter agreed but failed to purchase on the Delivery Date in
the respective proportions which the number of shares of the Stock set
opposite the name of each remaining non-defaulting Underwriter in Schedule 1
hereto bears to the total number of shares of the Stock set opposite the names
of all the remaining non-defaulting Underwriters in Schedule 1 hereto;
provided, however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Stock on the Delivery Date if the total
number of shares of the Stock which the defaulting Underwriter or Underwriters
agreed but failed to purchase on such date exceeds 9.09% of the total number
of shares of the Stock to be purchased on the Delivery Date, and any remaining
non-defaulting Underwriter shall not be obligated to purchase more than 110%
of the number of shares of the Stock which it agreed to purchase on the
Delivery Date pursuant to the terms of Section 3. If the foregoing maximums
are exceeded, the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representatives who so agree, shall have the
right, but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Stock to be purchased on the Delivery Date.
If the remaining Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase the shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase on the Delivery
Date, this Agreement shall terminate without liability on the part of any non-
defaulting Underwriter or the Company or the Selling Shareholder, except that
the Company will continue to be liable for the payment of expenses to the
extent set forth in Sections 8 and 13. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule 1 hereto who, pursuant to
this Section 11, purchases Stock which a defaulting Underwriter agreed but
failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company and the Selling Shareholder for
damages caused by its default. If other underwriters are obligated or agree
to purchase the Stock of a defaulting or withdrawing Underwriter, either the
Representatives or the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes that in the opinion of
counsel for the Company or counsel for the Underwriters may be necessary in
the Registration Statement, the Prospectus or in any other document or
arrangement.
12. Termination.
The obligations of the Underwriters hereunder may be terminated by
the Representatives by notice given to and received by the Company and the
Selling Shareholder prior to delivery of and payment for the Stock if, prior
to that time, any of the events described in Sections 9(j) or 9(k) shall have
occurred or if the Underwriters shall decline to purchase the Stock for any
reason permitted under this Agreement.
13. Reimbursement of Underwriters' Expenses. If (a) the Selling
Shareholder shall fail to tender the Stock for delivery to the Underwriters
for any reason permitted under this Agreement, or (b) the Underwriters shall
decline to purchase the Stock for any reason permitted under this Agreement
(including the termination of this Agreement pursuant to Section 12), the
Company and the Selling Shareholder shall reimburse the Underwriters for the
reasonable fees and expenses of their counsel and for such other out-of-pocket
expenses as shall have been incurred by them in connection with this Agreement
and the proposed purchase of the Stock, and upon demand the Company and the
Selling Shareholder shall pay the full amount thereof to the Representatives.
If this Agreement is terminated pursuant to Section 11 by reason of the
default of one or more Underwriters, neither the Company nor the Selling
Shareholder shall be obligated to reimburse any defaulting Underwriter on
account of those expenses.
14. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by
mail, telex or facsimile transmission to Xxxxxx Brothers Inc.,
Three World Financial Center, New York, New York 10285, Attention:
Syndicate Department (Fax: 000-000-0000);
(b) if to the Company or the Selling Shareholder, shall be
delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Primary Registration
Statement, Attention: Chief Financial Officer (Fax: 516-354-
4128);
provided, however, that any notice to an Underwriter pursuant to Section 10(d)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by
the Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company and
the Selling Shareholder shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Underwriters by
Xxxxxx Brothers Inc. on behalf of the Representatives.
15. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the
Company, the Selling Shareholder and their respective personal representatives
and successors. This Agreement and the terms and provisions hereof are for
the sole benefit of only those persons, except that (A) the indemnities and
agreements of the Company contained in Section 10(a) of this Agreement shall
also be deemed to be for the benefit of the officers and employees of each
Underwriter and the person or persons, if any, who control each Underwriter
within the meaning of Section 15 of the Securities Act, (B) the indemnities
and agreements of the Selling Shareholder contained in Section 10(b) of this
Agreement shall also be deemed to be for the benefit of the directors,
officers and employees of the Company and any person controlling the Company
within the meaning of Section 15 of the Securities Act and the officers and
employees of each Underwriter and the person or persons, if any, who control
each Underwriter within the meaning of Section 15 of the Securities Act and
(C) the indemnity agreement of the Underwriters contained in Section 10(c) of
this Agreement shall be deemed to be for the benefit of directors, officers
and employees of the Company and any person controlling the Company within the
meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 15, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
16. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the Principal Subsidiary, the
Selling Shareholder and the Underwriters contained in this Agreement or made
by or on behalf of them, respectively, pursuant to this Agreement, shall
survive the delivery of and payment for the Stock and shall remain in full
force and effect, regardless of any investigation made by or on behalf of any
of them or any person controlling any of them.
17. Definition of the Terms "Business Day" and "Subsidiary".
For purposes of this Agreement, (a) "business day" means any day on which the
New York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
18. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of New York.
19. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
20. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement among the
Company, the Principal Subsidiary, the Selling Shareholder and the
Underwriters, please indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
PARK ELECTROCHEMICAL CORP.
By
Title:
NELCO INTERNATIONAL CORPORATION
By
Title:
The Selling Shareholder:
Xxxxx Xxxxx
Accepted:
XXXXXX BROTHERS INC.
XXXXXXX & COMPANY, INC.
XXXXXXXXX, XXXXXXXX & COMPANY LLC
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By XXXXXX BROTHERS INC.
By
Authorized Representative
SCHEDULE 1
Number of Shares
Underwriters
Xxxxxx Brothers Inc.
Xxxxxxx & Company, Inc.
Xxxxxxxxx, Xxxxxxxx & Company LLC. .
________
Total 500,000
