AGSH&F Draft of August 22, 1997
HEALTHWORLD CORPORATION
2,100,000 Shares
Common Stock
($0.01 par value)
UNDERWRITING AGREEMENT
----------------------
___________, 1997
UNTERBERG HARRIS
PENNSYLVANIA MERCHANT GROUP LTD.
As Representatives of the
several underwriters,
c/o Unterberg Harris
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Healthworld Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell an aggregate of 2,100,000 shares (the
"Firm Shares") of the Company's common stock, par value $0.01 per share (the
"Common Stock"), to the underwriters named in Schedule I hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives. The Company also proposes to grant to the Underwriters an
option to purchase up to 315,000 additional shares of Common Stock (the "Option
Shares"; the Option Shares, together with the Firm Shares, being hereinafter
referred to collectively as the "Shares").
For purposes of this Agreement, "Effective Time" with respect
to the initial registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement means (i) if
the Company has advised the Representatives that it does not propose to amend
such registration statement, the date and time as of which such registration
statement, or the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement, was declared effective
by the Commission or has become effective upon the filing pursuant to Rule
462(c), or (ii) if the Company has advised the Representatives that it proposes
to file an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration statement, as
amended by such amendment or post-effective amendment, as the case may be, is
declared effective by the Commission. If an additional registration statement
has not been filed prior to the execution and delivery of this Agreement but
the Company has advised the Representatives that it proposes to file one,
"Effective Time" with respect to such additional registration statement means
the date and time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "Effective Date" with respect to the initial
registration
statement or the additional registration statement (if any) means the date of
the Effective Time thereof. The initial registration statement, as amended at
its Effective Time, including all information contained in the additional
registration statement (if any) and deemed to be part of the initial
registration statement as of the Effective Time of the additional registration
statement pursuant to the General Instructions of the Form on which it is filed
and including all information (if any) deemed to be a part of the initial
registration statement as of its Effective Time pursuant to Rule 430A(b)("Rule
430A(b)") under the Act is hereinafter referred to as the "Initial Registration
Statement." The additional registration statement, as amended at its Effective
Time, including all information (if any) deemed to be part of the additional
registration statement as of its Effective Time pursuant to Rule 430A(b), is
hereinafter referred to as the "Additional Registration Statement." The Initial
Registration Statement and the Additional Registration Statement are herein
referred to collectively as the "Registration Statements" and individually as a
"Registration Statement." The form of prospectus relating to the Shares, as
first filed with the Commission pursuant to and in accordance with Rule 424(b)
("Rule 424(b)") under the Act or (if no such filing is required) as included in
a Registration Statement, is hereinafter referred to as the "Prospectus."
1. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1
(Registration No. 333-______) and a related preliminary prospectus for
the registration of the Shares under the Securities Act of 1933, as
amended (the "Act"), has filed such amendments thereto, if any, and
such amended preliminary prospectuses as may have been required to the
date of this Agreement, and will file such additional amendments
thereto and such amended prospectuses as may hereafter be required.
The term "preliminary prospectus" as used herein means a preliminary
prospectus as contemplated by Rule 430 or Rule 430A of the rules and
regulations of the Commission under the Act (the "Rules and
Regulations") included at any time as part of the registration
statement. Copies of such registration statement and amendments and of
each related preliminary prospectus have been delivered to the
Representatives. If such registration statement has not become
effective, a further amendment to such registration statement,
including a form of final prospectus, necessary to permit such
registration statement to become effective will be filed promptly by
the Company with the Commission. If such registration statement (the
"initial registration statement") has been declared effective, either
(i) an additional registration statement (the "additional registration
statement") relating to the Shares may have been filed with the
Commission pursuant to Rule 462(b) ("Rule 462(b)") under the Act and,
if so filed, has become effective upon filing pursuant to such Rule
and the Shares have been duly registered under the Act pursuant to the
initial registration statement and such additional registration
statement. If the Company does not propose to amend the initial
registration statement or if an additional registration statement has
been filed and the Company does not propose to amend it, and if any
post-effective amendment of either such registration statement has
been filed with the Commission prior to the execution and delivery of
this Agreement, the most
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recent amendment (if any) to each such registration statement has been
declared effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) ("Rule 462(c)") under the Act or, in
the case of the additional registration statement, Rule 462(b).
(b) Neither the Commission nor any state regulatory authority
has issued any order preventing or suspending the use of any
preliminary prospectus, the Registration Statement or the Prospectus
or any part thereof and no proceedings for a stop order suspending the
effectiveness of the Registration Statement or any of the Company's
shares have been instituted or are pending or, to the Company's
knowledge, threatened. On the Effective Date, on the date the
Prospectus is first filed with the Commission pursuant to Rule 424(b)
(if required), on the Closing Date and when any post-effective
amendment to the Registration Statement becomes effective or any
amendment or supplement to the Prospectus is filed with the
Commission, the Registration Statement and the Prospectus (as amended
or as supplemented if the Company shall have filed with the Commission
any amendment or supplement thereto), including the financial
statements included in the Prospectus, did or will comply with all
applicable provisions of the Act and the Rules and Regulations and
will contain all statements required to be stated therein in
accordance with the Act and the Rules and Regulations.
(c) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement
(the "Execution Time"): (i) on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement conformed
in all respects to the requirements of the Act and the Rules and
Regulations, and did not include 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, (ii) on
the Effective Date of the Additional Registration Statement (if any),
each Registration Statement conformed, or will conform, in all
respects to the requirements of the Act and the Rules and Regulations,
and did not include, or will not include, any untrue statement of a
material fact and did not omit, or will not omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and (iii) on the date of this
Agreement, the Initial Registration Statement and, if the Effective
Time of the Additional Registration Statement is prior to the
Execution Time, the Additional Registration Statement each conforms in
all respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will include,
any untrue statement of a material fact or omits, or will omit, to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading. If the Effective Time of
the Initial Registration Statement is subsequent to the Execution
Time: on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement will conform in all respects to the
requirements of the Act and the Rules and Regulations, and it will not
include 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, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do
not apply to statements in or omissions from a Registration Statement
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based upon written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein,
it being understood and agreed that the only such information is that
set forth in the third and seventh paragraphs under the heading
"Underwriting" in the Prospectus.
(d) If the Effective Time of the Initial Registration
Statement is prior to the Execution Time, at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is required)
at the Effective Date of the Additional Registration Statement in
which the Prospectus is included, the Prospectus will conform in all
respects to the requirements of the Act and the Rules and Regulations
and it will not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the Execution Time: on the
Effective Date of the Initial Registration Statement, the Prospectus
will conform in all respects to the requirements of the Act and the
Rules and Regulations and it will not include any untrue statement of
a material fact or omit to state any material fact necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do
not apply to statements in or omissions from a Prospectus based upon
written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being
understood and agreed that the only such information is that set forth
in the third and seventh paragraphs under the heading "Underwriting"
in the Prospectus.
(e) The Company, and each of the companies listed on Schedule
II, which companies shall comprise all of the Company's subsidiaries
as of the Closing Date (collectively, "Subsidiaries"), is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization. The Company and each of the Subsidiaries
has full power and authority (corporate and other) to conduct all the
activities conducted by it, to own or lease all the assets owned or
leased by it and to conduct its business as described in the
Registration Statement and the Prospectus. Each of the Company and the
Subsidiaries is duly licensed or qualified to do business and in good
standing in all jurisdictions in which the nature of the activities
conducted by it or the character of the assets owned or leased by it
makes such licensing or qualification necessary, except to the extent
that the failure to be so licensed or qualified or be in good standing
would not have a material adverse effect on the Company and the
Subsidiaries, taken as a whole. Except as set forth in the Prospectus,
neither the Company nor the Subsidiaries owns directly or indirectly,
any shares of stock or any other equity or long-term debt shares of
any corporation or have any equity interest in any firm, partnership,
joint venture, association or other entity.
(f) The Company's authorized capitalization as set forth in
the Prospectus, under "Capitalization" and "Description of Capital
Stock" and will have the adjusted capitalization set forth therein on
the Closing Date, based upon the assumptions set
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forth therein, and the Company is not a party to or bound by any
instrument, agreement or other arrangement providing for it to issue
any capital stock, rights, warrants, options or other shares, except
for this Agreement and as described in the Prospectus. The Shares and
all other shares issued or issuable by the Company conform or, when
issued and paid for, will conform, to all statements with respect
thereto contained in the Registration Statement and the Prospectus.
(g) All of the outstanding shares of capital stock of, or
other ownership interests in, each of the Subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable
and as of the Closing Date will be owned directly or indirectly by the
Company free and clear of any lien, charge, claim, encumbrance,
security interest, defect or other restriction of any kind whatsoever.
(h) All financial statements, including the financial
statements of Girgenti, Hughes, Xxxxxx & XxXxxxxx, Inc., and its
affiliates (collectively, "GHB&M"), the financial statements of Xxxxxx
Marketing Group ("Xxxxxx"), and its subsidiaries (the "Xxxxxx
Affiliates"), and the related notes thereto included in the
Registration Statement and the Prospectus present fairly the
consolidated financial condition of the Company and the Subsidiaries
as of the dates indicated and the results of operations and cash flows
of the Company and the Subsidiaries for the periods specified, all in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the entire period involved, except as
otherwise disclosed in the Prospectus, and did not include at the time
of filing or at the time of any subsequent amendment any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein, in light
of the circumstances under which they were made, not misleading. The
pro forma combined financial information of the Company and the
Subsidiaries, and the related notes thereto included in the
Registration Statement and the Prospectus have been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial statements, have been properly compiled on the
bases described therein and, in the opinion of the Company and the
Subsidiaries, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein. No
other financial statements or schedules of the Company or the
Subsidiaries are required by the Act, the Rules and Regulations, the
Exchange Act or the 1934 Act Rules and Regulations to be included in
the Registration Statement or the Prospectus. Xxxxxx Xxxxxxxx LLP, who
certified the financial statements and supporting schedules, are
independent public accountants as required by the Act and the Rules
and Regulations or the Exchange Act or the 1934 Act Rules and
Regulations.
(i) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to
the Closing Date, except as otherwise stated therein, (i) there has
not been and will not have been any change in the capitalization of
the Company or the Subsidiaries, or any adverse change in the
business, properties, business prospects, condition (financial or
otherwise) or results of
5
operations of the Company or the Subsidiaries, arising for any reason
whatsoever, (ii) neither the Company nor the Subsidiaries has incurred
nor will incur any material liabilities or obligations, direct or
contingent, nor has it entered into nor will it enter into any
material transactions other than pursuant to this Agreement and the
Agreements and Plan of Organization (the "Reorganization Agreements")
to be entered into by the Company with GHB&M, with Xxx Xxxxxx, as sole
shareholder of Xxxxxx, and with various minority shareholders of the
Xxxxxx Affiliates named therein, and the transactions referred to
herein and therein, and (iii) the Company has not and will not have
paid or declared any dividends or other distributions of any kind on
any class of its capital stock.
(j) The shares of Common Stock to be issued pursuant to the
Reorganization Agreements (the "Reorganization Shares") have been duly
authorized and, as of the Closing Date, validly issued and fully paid
and non-assessable, and the holders thereof will have no rights of
rescission with respect thereto, and will not be subject to personal
liability by reason of being such holders; and none of such
Reorganization Shares were issued in violation of the preemptive
rights of any holders of any security of the Company or similar
contractual rights granted by the Company. The Shares to be issued
pursuant to the public offering are not, and will not be, subject to
any preemptive or other similar rights of any holders, have been duly
authorized and, when issued, paid for and delivered in accordance with
the terms hereof, will be validly issued, fully paid and
non-assessable; the holders thereof will not be subject to any
liability solely as such holders; all corporate action required to be
taken for the authorization, issuance and sale of the Shares has been
duly and validly taken; and the certificates representing the Shares
will be in due and proper form pursuant to Section 158 of the Delaware
General Corporation Law. Upon the issuance, delivery and payment
pursuant to the terms hereof of the Shares to be sold by the Company
hereunder, each of the Underwriters will acquire good and indefeasible
title to such Shares free and clear of any lien, charge, claim,
encumbrance, pledge, security interest, defect or other restriction of
any kind whatsoever. Except as described in the Prospectus, the
Company does not have outstanding, and at the Closing Date will not
have outstanding, any options to purchase, or any rights or warrants
to subscribe for, or any shares or obligations convertible into, or
any contracts or commitments to issue or sell, any shares of common
stock, or any such rights, warrants, convertible shares or
obligations. The Company does not, and at the Closing Date will not
have outstanding any securities other than the Reorganization Shares.
Except as described in the Prospectus, the Subsidiaries do not have
outstanding, and at the Closing Date will not have outstanding, any
options to purchase, or any rights or warrants to subscribe for, or
any shares or obligations convertible into, or any contracts or
commitments to issue or sell, any shares of such Subsidiary's common
stock, or any such rights, warrants, convertible shares or
obligations.
(k) The Company and the Subsidiaries have timely filed all
necessary tax returns and notices that are required to have been filed
prior to the date hereof and have paid all foreign, Federal, state,
county and local taxes of any nature whatsoever
6
(including, but not limited to, income, sales, unemployment, and
social security taxes) that have become due, whether pursuant to any
assessments, or otherwise, and there are no further liabilities
(whether or not disclosed on such returns) or assessments for any such
taxes (whether or not proposed), and no interest or penalties accrued
or accruing with respect thereto, except as may be set forth or
adequately reserved for in the financial statements included in the
Registration Statement; to the Company's best knowledge, the amounts
currently set up as provisions for taxes or others by the Company and
the Subsidiaries on their books and records are sufficient for the
payment of all their unpaid foreign, Federal, state, county and local
taxes accrued through the date hereof, and for which the Company and
the Subsidiaries may be liable in their own right, as a transferee of
the assets of, or as successor to any other corporation, association,
partnership, joint venture or other entity.
(l) The Company and the Subsidiaries each maintains insurance
of the types and in the amounts are adequate for its business and
consistent with insurance coverage maintained by similar companies in
similar businesses, including but not limited to, workers'
compensation insurance, insurance covering real and personal property
owned or leased by the Company or the Subsidiary against theft,
damage, destruction, acts of vandalism and all other risks customarily
insured against, all of which insurance is in full force and effect.
(m) The Company is not an "investment company" or a company
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
(n) There is no action, suit, proceeding, claim or
investigation pending or threatened against or affecting the Company
or the Subsidiaries, or any of their respective officers in their
capacities as such, before or by any federal or state court,
commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, which is required to be
disclosed in the Registration Statement or which might, individually
or in the aggregate, materially and adversely affect the Company or
the Subsidiaries, or their respective business, properties, business
prospects, condition (financial or otherwise) or results of operations
or might materially and adversely affect the ability of the Company to
perform its obligations under this Agreement or which is otherwise
material in the context of sale of the Shares.
(o) No consent, approval, authorization or order of, or
filing or declaration with, any court or governmental agency or body
is required for or in connection with this Agreement or the
Consolidations except such as have been obtained prior to the date
hereof under the Act, the Rules and Regulations, the Exchange Act, or
the 1934 Act Rules and Regulations, or as may be required under state
securities or Blue Sky laws, or the bylaws and rules of the NASD in
connection with the purchase and distribution by the Underwriters of
the Shares to be sold by the Company.
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(p) The Company has full power and authority (corporate and
otherwise) to enter into this Agreement and the Reorganization
Agreements. This Agreement and the Reorganization Agreements have been
duly authorized, executed and delivered by the Company and constitute
valid and binding agreements of the Company and are enforceable
against the Company in accordance with the terms hereof and thereof.
The execution, delivery and performance of this Agreement and the
Reorganization Agreements and the consummation of the transactions
contemplated hereby and thereby will not result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets
of the Company or the Subsidiaries pursuant to the terms or provisions
of, or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or give any other party
a right to terminate any of its obligations under, or result in the
acceleration of any obligation under, or result in the imposition of
an obligation on the Company or any of the Subsidiaries which the
Company or any of the Subsidiaries would otherwise not have (including
without limitation any payments to any existing and former
shareholders of the Company or any of the Subsidiaries) under, the
charter or bylaws of the Company or the Subsidiaries (as amended to
date) or any indenture, mortgage, deed of trust, voting trust
agreement, loan agreement, bond, debenture, note agreement or other
evidence of indebtedness, lease, contract or other agreement or
instrument to which the Company or a Subsidiary is a party or by which
the Company or a Subsidiary or any of their respective properties is
bound or affected, or violate or conflict with any judgment, ruling,
decree, franchise, license or permit of any court or other
governmental agency or body or any order, statute, rule or regulation
applicable to the business or properties of the Company.
(q) The Company and the Subsidiaries each has good,
marketable and indefeasible title to all real properties and assets
owned by them, in each case free and clear of all liens, charges,
encumbrances or restrictions, that might materially affect the value
thereof or materially interfere with the use made or to be made
thereof by them. The Company and the Subsidiaries each has valid,
subsisting and enforceable leases for the properties described in the
Prospectus as leased by it, with such exceptions as are not material
and do not materially interfere with the use made and proposed to be
made of such properties by the Company or the Subsidiaries.
(r) There is no document or contract required to be described
in the Prospectus or Registration Statement or to be filed as an
exhibit to the Registration Statement which is not so described or
filed. Each such contract to which the Company or one of the
Subsidiaries is a party has been duly and validly authorized, executed
and delivered, is in full force and effect, constitutes a valid and
binding agreement of each of the parties thereto, and is enforceable
against each such party in accordance with its terms. No such contract
has been assigned by the Company or one of the Subsidiaries, and the
Company knows of no present condition or fact which would prevent
compliance by the Company or the Subsidiaries or any other party
thereto with the terms of any such contract in accordance with its
terms. Neither the Company nor any of the Subsidiaries has any present
intention to exercise any right that it may have to cancel any such
contract or otherwise to terminate its rights and obligations
thereunder,
8
and does not have any knowledge that any other party thereto has any
intention not to render full performance as contemplated by the terms
thereof.
(s) No labor dispute with the employees of the Company or any
of the Subsidiaries exists or is imminent, and the Company is not
aware of any existing or imminent labor disturbance by such employees
or the employees of any of its suppliers which could have a material
adverse effect on the company and the Subsidiaries, taken as a whole.
(t) The Company and the Subsidiaries each owns or possesses
the patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names presently employed by them
in connection with the business now operated by them, and no
proceeding involving any claim of infringement of or conflict with
asserted rights of others with respect to any of the foregoing has
been instituted or is threatened, pending or contemplated.
(u) The Company and the Subsidiaries each possesses such
licenses, permits, consents, orders, approvals, certificates or
authorizations issued by the appropriate Federal, state or local
regulatory agencies or bodies necessary to conduct the business now
operated by each of them, and no proceeding relating to the revocation
or modification of any such licenses, permits, consents, orders,
certificates or authorizations has been instituted or is threatened,
pending or contemplated.
(v) Neither the Company nor any of the Subsidiaries is in
violation of its charter or bylaws or in default (nor has an event
occurred which with notice or lapse of time or both would constitute a
default or acceleration) in the performance of any obligation,
agreement or condition contained in any contract, indenture, mortgage,
note, lease, or other agreement or instrument to which the Company or
the Subsidiary, as the case may be, is a party or by which it or its
properties is bound or affected, and neither the Company nor any of
the Subsidiaries is in violation of any judgment, ruling, decree,
order, franchise, license or permit of any court or other governmental
agency or body or any statute, rule or regulation applicable to the
business or properties of the Company or the Subsidiary.
(w) No statement, representation, warranty or covenant made
by the Company in this Agreement or made in any certificate or
document required by this Agreement to be delivered to the
Representatives was or will be, when made, inaccurate, untrue or
incorrect.
(x) Neither the Company nor any of its directors, officers or
controlling persons has taken, directly or indirectly, any action
designed, or which might reasonably be expected, to cause or result,
under the Act or otherwise, in, or which has constituted,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
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(y) Except as set forth herein or in the Master Agreement
among Underwriters dated as of [ ], there are no claims,
payments, issuances, arrangements or understandings, whether oral or
written, for services in the nature of a finder's or origination fee
with respect to the sale of the Shares hereunder or any other
arrangements, agreements, understandings, payments or issuance with
respect to the Company, or any of its officers, directors,
shareholders, partners, employees or affiliates that may affect the
Underwriters' compensation, as determined by the National Association
of Securities Dealers, Inc. (the "NASD").
(z) Neither the Company nor any of the Subsidiaries has since
its inception (i) made any unlawful contribution to any candidate for
foreign office, or failed to disclose fully any contribution in
violation of law, or (ii) made any payment to any federal or state
governmental officer or official, or other person charged with similar
public or quasi-public duties, other than payments required or
permitted by the laws of the United States of any jurisdiction
thereof.
(aa) There are no existing agreements, arrangements,
understandings or transactions, or proposed agreements, arrangements,
understandings or transactions, between the Company, and any officer,
director, shareholder of the Company, or any affiliate or associate of
any of the foregoing persons or entities required to be disclosed by
Item 404 of Regulation S-K of the Rules and Regulations other than
those which are described in the Prospectus.
(bb) The Company and the Subsidiaries are (i) in compliance
in all material respects with any and all applicable foreign, federal,
state and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) have received all authorizations required of them under
applicable Environmental Laws to conduct their respective businesses
and (iii) are in compliance with all terms and conditions of any such
authorization, except where such noncompliance with Environmental
Laws, failure to receive required authorizations or failure to comply
with the terms and conditions of such authorizations would not, singly
or in the aggregate, have a material adverse effect on the Company and
the Subsidiaries, taken as a whole.
(cc) There are no persons with registration or other similar
rights to have any shares registered pursuant to the Registration
Statement or otherwise registered by the Company pursuant to the Act
which are required to be disclosed in the Registration Statement,
other than as disclosed therein.
(dd) The Company's Common Stock has been approved for
listing, subject to official notice of issuance, on The Nasdaq
National Market under the symbol "HWLD", and the Company is not aware
of any threatened or pending proceedings or action by the NASD to
prohibit, revoke or suspend such listing.
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(ee) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
2. Agreements to Sell and Purchase.
(a) On the basis of the representations, warranties and
agreements contained herein, but subject to the terms and conditions
herein set forth, the Company hereby agrees to issue and sell the Firm
Shares to the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company at a price per
share of $________ (the "Purchase Price"), the respective number of
Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto.
(b) In addition, on the basis of the representations,
warranties and agreements contained herein, but subject to the terms
and conditions herein set forth, the Company hereby agrees to issue
and sell the Option Shares to the Underwriters and the Underwriters
shall have the right to purchase, severally and not jointly, up to
315,000 Option Shares from the Company at the Purchase Price. Option
Shares may be purchased solely for the purpose of covering
over-allotments made in connection with the offering of the Firm
Shares. The Underwriters may exercise their right to purchase Option
Shares in whole or in part from time to time by giving written notice
thereof to the Company within 30 days after the date of the
Prospectus. The Representatives shall give any such notice on behalf
of the Underwriters and such notice shall specify the aggregate number
of Option Shares to be purchased pursuant to such exercise and the
date for payment and delivery thereof. The date specified in any such
notice shall be a business day (i) no earlier than the Closing Date
(as hereinafter defined), (ii) no later than 10 business days after
such notice has been given and (iii) unless otherwise agreed by the
Company, no earlier than two business days after such notice has been
given. If any Option Shares are to be purchased, each Underwriter,
severally and not jointly, agrees to purchase from the Company the
number of Option Shares (subject to such adjustments to eliminate
fractional shares as the Representatives may determine) which bears
the same proportion to the total number of Option Shares to be
purchased from the Company as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I bears to the total
number of Firm Shares.
(c) Subject to the terms and conditions and in reliance upon
the representations and warranties set forth herein, on the Closing
Date, the Company agrees to pay the Representatives a non-accountable
expense allowance in the amount of $_______, which is equal to 1% of
the gross proceeds of the Offering.
3. Terms of Public Offering. The Company is advised by the
Representatives that the Underwriters propose to make a public offering of
their respective portions of the Shares upon the terms set forth in the
Prospectus.
11
4. Delivery and Payment. Payment for the Firm Shares shall be
made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company, against delivery to the Representatives of
certificates for the Shares. Delivery to the Underwriters of and payment for
the Firm Shares shall be made at the offices of Akin, Gump, Strauss, Xxxxx &
Xxxx, L.L.P. at 10:00 a.m., New York City time, on _______________, 1997 or at
such other time not later than seven full business days thereafter as Unterberg
Harris and the Company determine (the "Closing Date"). The Closing Date and the
location of delivery of and the form of payment for the Firm Shares may be
varied by agreement between the Representatives and the Company.
Payment for the Option Shares shall be made to the Company by
wire transfer of immediately available funds to a bank account designated by
the Company, against delivery to the Representatives of certificates for the
Shares. Delivery to the Underwriters of and payment for any Option Shares to be
purchased by the Underwriters shall be made at such place as the
Representatives shall designate at 10:00 a.m., New York City time, on the date
specified in the applicable exercise notice given by the Representatives
pursuant to Section 2 (the "Option Closing Date"). The Option Closing Date and
the location of delivery of and the form of payment for such Option Shares may
be varied by agreement between the Representatives and the Company.
Certificates for the Shares shall be registered in such names
and issued in such denominations as the Representatives shall request in
writing not later than two full business days prior to the Closing Date or the
Option Closing Date, as the case may be. Such certificates shall be made
available to the Representatives for inspection not later than 1:00 p.m., New
York City time, on the business day next preceding the Closing Date or the
Option Closing Date, as the case may be. Certificates in definitive form
evidencing the Shares shall be delivered to the Representatives on the Closing
Date or the Option Closing Date, as the case may be.
5. Agreements of the Company. The Company agrees with the
Representatives that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereof, to become effective. Prior to the termination
of the offering of the Shares, the Company will not file any amendment
of the Registration Statement or supplement to the Prospectus without
the prior consent of the Representatives. Subject to the foregoing
sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is
otherwise required under Rule 424(b), the Company will cause the
Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. In
addition, if the Effective Time of the Initial Registration Statement
is prior to the Execution Time and an additional registration
statement is necessary to register a portion of the Shares under the
Act but the Effective
12
Time thereof has not occurred as of such execution and delivery, the
Company will file the additional registration statement or, if filed,
will file a post-effective amendment thereto with the Commission
pursuant to and in accordance with Rule 462(b) on or prior to 10:00
P.M., New York time, on the date of this Agreement or, if earlier, on
or prior to the time the Prospectus is printed and distributed to any
Underwriter, or will make such filing at such later date as shall have
been consented to by the Representatives. The Company will promptly
advise the Representatives (A) when the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, shall have
become effective, (B) when the Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to
Rule 424(b), (C) when, prior to termination of the offering of the
Shares, any amendment to the Registration Statement shall have been
filed or become effective, (D) of any request by the Commission for
any amendment of the Registration Statement or supplement to the
Prospectus or for any additional information, (E) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (F) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares
is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if
it shall be necessary to amend the Registration Statement or
supplement the Prospectus to comply with the Act or the Rules and
Regulations thereunder, the Company promptly will notify Unterberg
Harris of such event and promptly will prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or effect such compliance. Neither
Unterberg Harris' consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6 hereof.
(c) As soon as practicable, but not later than the
"Availability Date" (as defined below), the Company will make
generally available to its security holders and to the Representatives
an earning statement or statements of the Company which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the Act.
For purposes of the preceding sentence, "Availability Date" means the
45th day after the end of the fourth fiscal quarter following the
fiscal quarter that includes the Effective Date, except that, if such
fourth fiscal quarter is the last quarter of the Company's fiscal
year, "Availability Date" means the 90th day after the end of such
fourth fiscal quarter.
13
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, (A) signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto), (B) copies of each XXXXX filing of each Registration
Statement (and confirmations for each XXXXX filing of each
Registration Statement), and, (C) prior to 10:00 a.m., New York City
time, on the Business Day next succeeding the date of this Agreement
and from time to time so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act as many copies of
each Preliminary Prospectus and the Prospectus and any supplement
thereto as the Representatives may reasonably request. The Company
will pay the expenses of printing or other production of all documents
relating to the offering.
(e) The Company will arrange for the qualification of the
Shares for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Shares and will
pay the fees and expenses in connection with the review of the
offering by the NASD.
(f) The Company will use the net proceeds received by it from
the sale of the Shares in the manner specified in the Prospectus under
"Use of Proceeds."
(g) For five years after the date of this Agreement, the
Company will furnish to the Representatives and upon request to each
of the other Underwriters, (i) as soon as available, a copy of each
report or other publicly available information of the Company mailed
to the holders of Common Stock or filed with the Commission and (ii)
from time to time, such other publicly available information
concerning the Company and its subsidiaries as the Representatives may
reasonably request.
(h) The Company will use its best efforts to list the shares
and maintain the inclusion of the Common Stock on The Nasdaq National
Market (or on a national securities exchange) and to register the
Shares under the Exchange Act in accordance with the 1934 Act Rules
and Regulations.
(i) The Company will use its best efforts to do and perform
all things required or necessary to be done and performed under this
Agreement and the Reorganization Agreements by the Company prior to
the Closing Date or the Option Closing Date, as the case may be, and
to satisfy all conditions precedent to the delivery of the Shares.
(j) The Company will notify Unterberg Harris of any material
adverse change affecting any of its representations, warranties,
agreements and indemnities herein at any time prior to payment to the
Company for the Shares on the Closing Date or any Option Closing Date.
14
(k) During the period commencing on the date hereof and
continuing for 180 days, without Unterberg Harris' written permission,
the Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to, any
additional shares of its Securities or Common Stock or securities
convertible into or exchangeable for or exercisable for any Shares of
its Common Stock, or publicly disclose of its intention to make any
such offer, sale, pledge, disposal or filing. Notwithstanding the
foregoing, during such period the Company may (i) issue and sell the
Shares to be sold hereunder, (ii) sell shares of Common Stock upon the
exercise of an option or warrant or the conversion of a security
outstanding on the date hereof, or (iii) grant stock options in the
ordinary course of business under the Company's 1997 incentive stock
option plan.
(l) The Company will cause each of its directors, officers
and shareholders to agree that during the period commencing on the
date hereof and continuing for 180 days, without Unterberg Harris'
written permission, such directors and officers will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any shares of Common Stock or securities
convertible into or exchangeable or exercisable for any shares of its
Common Stock, or publicly disclose its intention to make any such
offer, sale, pledge, disposal or filing.
(m) The Company will use its best efforts to consummate the
transactions contemplated by the "Consolidations" (as defined in the
Prospectus) at or prior to the Closing Date in accordance with the
terms of the Reorganization Agreements and as described in the
Prospectus.
(n) The Consolidations will qualify as a "pooling of
interests" under Accounting Practice Bulletin No. 16.
6. Conditions of Underwriters' Obligations. The obligations
of the several Underwriters to purchase the Firm Shares and the Option Shares,
as the case may be, under this Agreement are subject to the accuracy of the
representations and warranties on the part of the Company contained herein as
of the date of this Agreement, the Closing Date and the Option Closing Date, as
the case may be, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the satisfaction of each of the
following conditions:
(a) The Registration Statement shall have become effective
not later than 5:00 p.m. (and in the case of a registration statement,
if any, filed under Rule 462(b) of the Act, not later than 10:00 p.m.)
New York City time on the date of this Agreement; if filing of the
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Prospectus, and any such supplement, shall have been filed
in the manner and within the time period required by Rule 424(b); and
no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
15
(b) Each of the transactions contemplated in connection with
the Consolidations have been or will be, at or prior to the Closing
Date, consummated, in accordance with the terms of the Reorganization
Agreements and as described in the Prospectus.
(c) The Representatives shall have received an opinion dated
the Closing Date, and with respect to any Option Shares the Option
Closing Date, satisfactory in form and substance to the
Representatives from Rosenman & Colin, LLP, counsel for the Company,
to the effect set forth in Exhibit A.
(d) The Representatives shall have received an opinion dated
the Closing Date, and with respect to any Option Shares the Option
Closing Date, satisfactory in form and substance to the
Representatives from [ ], U.K. counsel for the Company,
to the effect set forth in Exhibit B.
(e) The Representatives shall have received an opinion dated
the Closing Date, and with respect to any Option Shares the Option
Closing Date, from Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., counsel
for the Underwriters, which opinion shall be satisfactory in all
respects to the Underwriters, and the Company shall have furnished to
such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(f) Since the date of the most recent financial statements
included in the Prospectus, there has been no material adverse change
in the Company or the Subsidiaries or their respective business,
properties, business prospects, condition (financial or otherwise) or
results of operations, except as set forth in or contemplated in the
Prospectus.
(g) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company dated the Closing Date or the Option Closing Date, as the case
may be, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus, any
supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct on and as of
the Closing Date or the Option Closing Date, as the case may
be, with the same effect as if made on the Closing Date or
the Option Closing Date and the Company has complied with all
the agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to the Closing Date
or the Option Closing Date;
16
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus, there has been no
material adverse change in the Company or the Subsidiaries or
their respective business, properties, business prospects,
condition (financial or otherwise) or results of operations,
except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(h) At the Execution Time and at the Closing Date or the
Option Closing Date, as the case may be, Xxxxxx Xxxxxxxx LLP shall
have furnished to the Representatives a letter or letters, dated
respectively as of the Execution Time and as of the Closing Date, with
respect to treatment of the Consolidations as a pooling of interests
under Accounting Practice Bulletin No. 16, the financial statements
and certain financial information contained in the Registration
Statement and Prospectus in form and substance satisfactory to the
Representatives.
(i) The Shares to be sold by the Company on the Closing Date
shall have been duly listed on The Nasdaq National Market subject to
notice of issuance and shall have been registered under the Exchange
Act in accordance with the 1934 Act Rules and Regulations.
(j) At the Execution Time, the Company shall have furnished
to the Representatives a lock-up letter from each officer, director
[and each stockholder] of the Company substantially in the form set
forth in Exhibit C.
(k) Prior to the Closing Date or the Option Closing Date, as
the case may be, the Company shall have furnished to the
Representatives such further information, certificates and documents
as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall
not have been fulfilled in when and as provided in this Agreement, or if any of
the opinions and certificates mentioned above or elsewhere in this Agreement
shall not be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of
the Shares provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 is not satisfied,
because of any termination pursuant to Section 10 or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand
17
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Shares.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the
meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the
Shares as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Prospectus, or in any amendment thereof
or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company each of the Company's
directors, and each of the Company's officers who signs the
Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity to each Underwriter, but only with
reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through
the Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity. The Company acknowledges that
the statements set forth in the third and seventh paragraphs under the
heading "Underwriting" in any Preliminary Prospectus and the
Prospectus constitute the only information furnished in writing by or
on behalf of the several Underwriters for inclusion in any Preliminary
Prospectus or the Prospectus, and the Representatives confirm that
such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in
18
respect thereof is to be made against the indemnifying party under
this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or
(b) above unless and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided
in paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any
action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel
to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the
actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any
such separate firm for the Underwriters and such control persons of
the Underwriters, such firm shall be designated in writing by
Unterberg Harris. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
19
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Underwriters agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and by the Underwriters on the other from the offering of the Shares;
provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the
offering of the Shares) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Shares purchased
by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
Company, and the Underwriters shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and of the Underwriters
on the other in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be
equal to the total net proceeds from the offering (before deducting
expenses), and benefits received by the Underwriters shall be deemed
to be equal to the total underwriting discounts and commissions, in
each case as set forth on the cover page of the Prospectus. Relative
fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the Company
or the Underwriters. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within the meaning
of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights
to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d). The remedies provided for
in this Section 9 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at
law or in equity.
The indemnity and contribution provisions contained in this
Section 8 and the representations and warranties of the Company
contained in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter or any
20
person controlling any Underwriter or by or on person controlling the
Company and (iii) acceptance of and payment for any of the Shares.
9. Default by an Underwriter. If any one Underwriter shall
fail to purchase and pay for any of the Shares agreed to be purchased by such
Underwriter hereunder and such failure to purchase shall constitute a default
in the performance of its obligations under this Agreement, the remaining
Underwriters shall be obligated to take up and pay for the Shares which the
defaulting Underwriter agreed but failed to purchase; provided, however, that
in the event that the aggregate amount of Shares which the defaulting
Underwriter agreed but failed to purchase shall exceed 10% of the aggregate
amount of Shares set forth in Schedule I hereto, the remaining Underwriters
shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Shares, and if such nondefaulting Underwriters do not
purchase all the Shares, this Agreement will terminate without liability to any
nondefaulting Underwriters or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Shares, if prior to
such time (a) trading in the Company's Common Stock shall have been suspended
by the Commission or The Nasdaq National Market or trading in securities
generally on the New York Stock Exchange or The Nasdaq National Market shall
have been suspended or limited or minimum prices shall have been established on
such Exchange or Market, (b) a banking moratorium shall have been declared
either by Federal or New York State authorities; or (c) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the offering or
delivery of the Shares as contemplated by the Prospectus.
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers, and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Shares. The
provisions of Sections 9 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, care of Unterberg
Harris, 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
21
New York, 10022 with a copy to Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxx, Esq. and
Xxxxxxx X. Older, Esq.; or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at Healthworld Corporation, 000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, with a copy to Rosenman & Colin, LLP,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xxxxxx X. Xxxxxx,
Esq.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 9 hereof,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
[The remainder of this page is intentionally left blank.]
22
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the several Underwriters.
Very truly yours,
HEALTHWORLD CORPORATION
By:
----------------------------------
Name:
Title:
UNTERBERG HARRIS
PENNSYLVANIA MERCHANT GROUP LTD.
Acting severally on behalf of themselves
and the several Underwriters
named in Schedule II hereto
By: UNTERBERG HARRIS
By:
-------------------------
Name:
Title:
S-1
SCHEDULE I
Number of Firm Shares
Underwriters to be Purchased
------------ ---------------------
Unterberg Harris.........................................
Pennsylvania Merchant Group Ltd..........................
[Other]
Total 2,100,000
SCHEDULE II
[LIST OF SUBSIDIARIES]
[COMPANY TO PROVIDE]
