1
Exhibit 1.1
1,000,000 SHARES(1)
SEEC, INC.
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
_______________, 1996
X.X. Xxxxxxxxxx & Co., Inc.
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
as Representative of the several
Underwriters named in SCHEDULE 1
attached hereto
Gentlemen:
1. INTRODUCTION. SEEC, Inc., a Pennsylvania corporation (the "Company"),
proposes to sell to the several underwriters named in SCHEDULE 1 attached
hereto (the "Underwriters"), for which X.X. Xxxxxxxxxx & Co., Inc. is acting as
representative (the "Representative"), an aggregate of 1,000,000 shares of the
Company's Common Stock, $.01 par value per share (the "Common Stock"). The
1,000,000 shares of Common Stock to be sold by the Company are referred to as
the "Firm Shares." The respective amounts of the Firm Shares to be purchased by
the several Underwriters are set forth opposite their names in SCHEDULE 1
hereto.
The Company also proposes to issue and sell an aggregate of not more than
150,000 additional shares of Common Stock if requested by the Representative in
accordance with Section 9 hereof. Such additional shares are referred to as the
"Additional Shares." The Firm Shares and the Additional Shares are collectively
referred to herein as the "Shares." The words "you" and "your" refer to the
Representative of the Underwriters.
The Company hereby confirms as follows its arrangements for the purchase
of the Shares by the Underwriters.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents, warrants and agrees with each of the
Underwriters that, except as disclosed in the Effective Prospectus and the
Final Prospectus (each as hereinafter defined):
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(1) Together with an option to purchase from the Company up to 150,000
additional shares to cover over allotments.
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(i) A registration statement on Form S-1 (File No. __________) under
the Securities Act of 1933, as amended (the "Act"), with respect to the Shares,
including a preliminary form of prospectus, has been prepared by the Company in
conformity in all material respects with the requirements of the Act and the
Rules and Regulations (as hereinafter defined) of the Securities and Exchange
Commission (the "Commission") thereunder and has been filed with the Commission
under the Act. Such registration statement, as amended and revised at the time
it becomes effective, or, if a post-effective amendment to such registration
statement has been or is filed, at the time such post-effective amendment
becomes effective, including financial statements and exhibits, is hereinafter
referred to as the "Registration Statement," and the prospectus included as
part of the Registration Statement on file with the Commission when it became
or shall become effective, or, if the procedure in Rule 430A of the Rules and
Regulations is followed, the prospectus that discloses all the information that
was omitted from the prospectus on the effective date of the Registration
Statement pursuant to such Rule and, in either case, together with any changes
contained in any prospectus filed with the Commission by the Company under Rule
424(b) of the Rules and Regulations with your consent after the effective date
of the Registration Statement, is referred to herein as the "Final Prospectus."
If the procedure in Rule 430A is followed, the prospectus included as part of
the Registration Statement on the date when the Registration Statement became
effective is referred to herein as the "Effective Prospectus." Any prospectus
included in the Registration Statement and in any amendments thereto prior to
the effective date of the Registration Statement is referred to herein as the
"Pre-Effective Prospectus." For purposes hereof, "Rules and Regulations" means
the rules and regulations adopted by the Commission under either the Act or the
Securities Exchange Act of 1934 (the "Exchange Act"), as applicable. For
purposes hereof, all references to the Registration Statement, the
Pre-Effective Prospectus, the Effective Prospectus or the Final Prospectus, or
any amendment or supplement to any of the foregoing, shall be deemed to include
the respective copies thereof filed with the Commission pursuant to the
Commission's Electronic Data Gathering, Analysis and Retrieval System
("XXXXX").
(ii) The Commission has not issued any order preventing or suspending
the use of any Pre-Effective Prospectus and has not instituted or, to the
knowledge of the Company, threatened to institute any proceedings with respect
to such an order (a "Stop Order"); each Pre-Effective Prospectus, when filed
with the Commission, conformed in all material respects to the requirements of
the Act and the Rules and Regulations; when the Registration Statement became
or shall become effective and at all times subsequent thereto up to and
including the Closing Date and the Option Closing Date (each as hereinafter
defined), the Registration Statement, the Effective Prospectus, the Final
Prospectus and each amendment and each supplement thereto, if any, will conform
in all material respects to the requirements of the Act and the Rules and
Regulations; any request of the Commission for additional information (to be
included in the Registration Statement, the Effective Prospectus, the Final
Prospectus or otherwise) has been complied with; no part of the Registration
Statement, nor any amendment thereto, included or will include any untrue
statement of a material fact or omitted or will omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading; and none of the Effective Prospectus, the Final Prospectus or any
Pre-Effective Prospectus (or any supplement thereto) as of their respective
dates, and, in the case of the Final Prospectus (or any supplement thereto) at
all times subsequent thereto up to and including the Closing Date and
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Option Closing Date, included or will include any untrue statement of a
material fact or omitted or will omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements in or
omissions from any Pre-Effective Prospectus, the Registration Statement, the
Effective Prospectus or the Final Prospectus, or any such amendment or
supplement, made in reliance upon, and in conformity with, information
furnished in writing to the Company by or on behalf of the Underwriters
expressly for use therein. As used in this Agreement, the term "knowledge"
means actual knowledge by any officer or director of the Company after
reasonable inquiry.
(iii) The Company (A) is a duly incorporated and validly existing
corporation in good standing under the laws of the Commonwealth of
Pennsylvania, with full power and authority (corporate and other), and all
necessary consents, authorizations, approvals, orders, licenses, certificates,
and permits of and from, and declarations and filings with, all federal, state,
local and other governmental authorities and all courts and other tribunals
(collectively, the "Consents") to own or lease its properties and to conduct
its business as described in the Effective Prospectus and the Final Prospectus;
and (B) is duly qualified to do business as a foreign corporation in each
jurisdiction (x) in which the conduct of its business or (y) in which the
character of the property owned or leased by it requires such qualification,
except for those jurisdictions in which the failure so to qualify has not had
and will not have in the aggregate a material and adverse effect on the
Company. As used in this Agreement, the phrase "material and adverse effect on
the Company" or similar phrase means any material and adverse effect, directly
or indirectly, currently or prospectively, on the Company's financial
condition, results of operations, properties or prospects on business in
general.
(iv) The Company has no subsidiaries.
(v) The Company has a duly authorized and validly outstanding
capitalization as set forth in the Effective Prospectus and the Final
Prospectus and will have the adjusted capitalization set forth therein on the
Closing Date, based on the assumptions set forth therein; the capital stock of
the Company conforms to the descriptions thereof contained in the Effective
Prospectus and the Final Prospectus; the outstanding shares of capital stock
have been duly authorized and validly issued by the Company and are fully paid
and nonassessable, without any personal liability attaching to the ownership
thereof; the outstanding shares of capital stock have been issued in compliance
with all applicable federal and state securities laws; and the Company has duly
authorized the issuance and sale of the Shares to be issued and sold by the
Company in accordance with this Agreement. Except as created hereby or referred
to in the Registration Statement, the Effective Prospectus and the Final
Prospectus, there are no outstanding options, warrants, rights or other
arrangements (including without limitation preemptive rights) requiring the
Company at any time to issue any capital stock. The Shares are not and will not
be subject to any preemptive or other similar rights of any shareholder, which
have not been waived, have been duly authorized and, when issued, paid for and
delivered in accordance with the terms hereof will be validly issued, fully
paid and non-assessable and have been issued in compliance with all applicable
federal and state securities laws; and the holders thereof will not be subject
to any liability solely as such holders. Upon the issuance and delivery
pursuant to the terms hereof of the
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Shares, the Underwriters will acquire good and marketable title to such Shares
free and clear of any lien, encumbrance, equity, claim, security interest, or
other restriction whatsoever.
(vi) The financial statements and the related notes and schedules
thereto filed with and as part of the Registration Statement, the Effective
Prospectus and the Final Prospectus (collectively, the "Financial Statements")
fairly present the financial condition, results of operations, stockholders'
equity and cash flows of the Company at the respective dates of such
statements, notes and schedules and for the respective periods to which they
apply. The Financial Statements have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, are correct and complete and are in accordance with the books and
records of the Company. Certain of the Financial Statements have been audited
by BDO Xxxxxxx, LLP, who are independent public accountants within the meaning
of the Act and the Rules and Regulations, as indicated in their reports filed
therewith. No other financial statements are required by Form S-1 or otherwise
to be included in the Registration Statement, the Effective Prospectus or the
Final Prospectus. The financial information and statistical data set forth in
the Effective Prospectus and the Final Prospectus under the captions
"Prospectus Summary -- Summary Financial Data," Capitalization," "Selected
Financial Data" and "Management's Discussion and Analysis of Financial
Condition and Results of Operations" have been prepared on a basis consistent
with the Financial Statements.
(vii) The Company has filed all necessary federal and state income and
franchise tax returns and has paid all taxes shown as due thereunder, and the
Company has no knowledge of any tax deficiency which might be assessed against
the Company which, if so assessed, might have a material and adverse effect on
the Company.
(viii) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are, in the
opinion of the Company's management, customary and adequate for the businesses
in which it is engaged, including, but not limited to, general liability
insurance and insurance covering real and personal property owned or leased by
the Company against theft, damage, destruction, acts of vandalism and all other
risks customarily insured against by any company that is comparable to the
Company in terms of its financial condition, all of which insurance is in full
force and effect. The Company has no reason to believe that it will not be able
to renew existing insurance coverage with respect to the Company as and when
such coverage expires or to obtain similar coverage from similar insurers as
may be necessary to continue its business at a cost that would not now have,
individually or in the aggregate, a material and adverse effect on the Company.
(ix) Except as disclosed in the Effective Prospectus and the Final
Prospectus, there is no pending or, to the knowledge of the Company, threatened
action, suit, proceeding or investigation before or by any court, regulatory
body or administrative agency or any other governmental agency or body,
domestic or foreign, which (A) questions the validity of the capital stock of
the Company or this Agreement or of any action taken or to be taken by the
Company pursuant to or in connection with this Agreement, (B) is required to be
disclosed in the Registration Statement which is not so disclosed (and such
proceedings as are summarized in the
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Registration Statement, if any, are accurately summarized in all respects), or
(C) would have a material and adverse effect on the Company.
(x) The Company has full legal right, power and authority to enter
into this Agreement and to consummate the transactions provided for herein; and
this Agreement has been duly authorized by the Company's Board of Directors and
executed and delivered by the Company. This Agreement, assuming it is a binding
agreement of yours, constitutes a legal, valid and binding agreement of the
Company enforceable against the Company in accordance with its terms (except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, or other similar laws relating to creditors' rights generally,
and general equitable principles relating to the availability of remedies, and
as rights to indemnity or contribution may be limited by state or federal
securities laws and the public policy underlying such laws), and none of the
Company's execution or delivery of this Agreement, its performance hereunder,
or its consummation of the transactions contemplated herein, conflicts or will
conflict with, or results or will result, in any breach or violation of any of
the terms or provisions of, or constitutes or will constitute a default under,
or result in the creation or imposition of any lien, charge, or encumbrance
upon, any property or assets of the Company pursuant to the terms of (A) the
articles of organization or by-laws of the Company, (B) any contract,
indenture, mortgage, deed of trust, voting trust agreement, stockholders
agreement, note agreement or other agreement or instrument to which the Company
is a party or by which it may be bound or to which any of its properties is or
may be subject, or any indebtedness, or (C) any statute, judgment, decree,
order, rule or regulation applicable to the Company of any arbitrator, court,
regulatory body or administrative agency or other governmental agency or body,
domestic or foreign, having jurisdiction over the Company or any of their
activities or properties.
(xi) All executed agreements or copies of executed agreements filed as
exhibits to the Registration Statement to which the Company is a party or by
which it may be bound or to which any of its assets, properties or business may
be subject have been duly and validly authorized, executed and delivered by the
Company, constitute the legal, valid and binding agreements of the Company,
enforceable against it in accordance with their respective terms (except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws relating to enforcement of creditors'
rights generally, and general equitable principles relating to the availability
of remedies, and as rights to indemnity or contribution may be limited by state
or federal securities laws and the public policy underlying such laws) and, to
the knowledge of the Company, no default has occurred under such agreements by
the parties with whom the Company has entered into such agreements. The
descriptions in the Registration Statement of contracts and other documents are
accurate and fairly present the information required to be shown with respect
thereto by Form S-1, and there are no contracts or other documents which are
required by the Act or the Rules and Regulations to be described in the
Registration Statement or filed as exhibits to the Registration Statement which
are not described or filed as required, and the exhibits which have been filed
are complete and correct copies of the documents of which they purport to be
copies. Each transaction with ERA Software Systems Private Limited ("ERA") has
been made at arm's length and has been evidenced by a formal agreement.
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(xii) Subsequent to the most recent respective dates as of which
information is given in the Effective Prospectus and the Final Prospectus and
except as expressly contemplated in the Effective Prospectus and the Final
Prospectus, the Company has not incurred, other than in the ordinary course of
its business, any material liabilities or obligations, direct or contingent,
paid or declared any dividends or other distributions on its capital stock or
entered into any material transactions not in the ordinary course of business,
and there has been no material change in capital stock or debt or any material
adverse change in the condition (financial or other), net worth or results of
operations of the Company. The Company is not in breach or violation of, or in
default under, any term or provision of (A) its articles of organization or
by-laws, (B) any contract, indenture, mortgage, deed of trust, voting trust
agreement, stockholders agreement, note agreement or other agreement or
instrument to which the Company is a party or by which it is bound or to which
any of its property is subject, or any indebtedness, which breach, violation or
default would have a material and adverse effect on the Company, or (C) any
statute, judgment, decree, order, rule or regulation applicable to the Company
of any arbitrator, court, regulatory body, administrative agency or any other
governmental agency or body, domestic or foreign, having jurisdiction over the
Company or any of its activities or properties and the effect of which breach
or default would be material and adverse to the Company.
(xiii) No labor disturbance by the employees of the Company exists or,
to the knowledge of the Company, is imminent which could reasonably be expected
to have a material and adverse effect on the Company.
(xiv) Since its inception, the Company has not incurred any material
liability arising under or as a result of the application of the provisions of
the Act or applicable state securities laws.
(xv) The Company does not maintain an "employee pension benefit plan"
(as defined in Section 3(2) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")).
(xvi) The Company owns or possesses adequate rights to use, license
and sublicense all material patents, patent applications, trademarks, service
marks, trade names, licenses, copyrights and proprietary or other confidential
information (together, "Proprietary Rights") currently employed by it in
connection with its business. The Company has all Proprietary Rights necessary
to carry out the Company's current, former and anticipated future activities,
including without limitation, rights to make, use, exclude others from using,
reproduce, modify, adapt, create derivative works based on, translate,
distribute (directly and indirectly), transmit, display and perform publicly,
license, rent, lease, assign, and sell the Proprietary Rights, and to
sublicense any or all such rights to third parties, including the right to
grant further sublicenses. The Company is not, nor as a result of the execution
and delivery of this Agreement, or performance of the Company's obligations
hereunder, will the Company be, in material violation of any license,
sublicense or agreement to which the Company is a party or otherwise bound. The
Company has not received any notice of infringement, misuse or misappropriation
of or conflict with asserted rights of any third party with respect to any of
the foregoing which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result
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in a material and adverse effect on the Company. There is no pending or, to the
knowledge of the Company, threatened or potential claim, challenge or
proceeding by the Company against any third party for infringement, misuse or
misappropriation or interference with any Proprietary Right owned, licensed or
controlled by the Company. The Company has not disclosed any material
confidential information developed or utilized by the Company to any third
party except on a confidential basis and pursuant to a confidentiality
agreement and with no intention to entitle such third party to use such
information other than for the purposes set forth in such confidentiality
agreement, nor, to the knowledge of the Company, has any third party disclosed
confidential information developed or utilized by the Company to any person not
an employee of the Company or of the third party. The Company has nondisclosure
and confidentiality agreements with respect to the Proprietary Information with
all employees of the Company.
(xvii) The Company is not in violation of any laws, ordinances or
governmental rules or regulations to which it or its property is subject, which
violation would have a material and adverse effect on the Company and, without
limiting the generality of the foregoing, the Company has not violated any
applicable safety or similar law applicable to the business of the Company (or
to its respective properties, whether owned or leased), or any federal or state
law relating to discrimination in the hiring, promotion, or pay of employees,
or any applicable federal or state wages and hours law, or any provisions of
ERISA or the rules and regulations promulgated thereunder, which violation
would have a material and adverse effect on the Company.
(xviii) No consent, approval, authorization or order of any court,
regulatory body, administrative agency or any other governmental agency or
body, domestic or foreign, is required for the performance by the Company of
this Agreement or the consummation by the Company of the transactions
contemplated hereby, except such as have been or may be obtained under the Act
or may be required under state securities or Blue Sky laws in connection with
the Underwriters' purchase and distribution of the Shares to be sold hereunder.
(xix) There are no holders of securities of the Company having rights
(exercisable currently or in the future) to the registration of such securities
under the Registration Statement who have not waived such rights with respect
to the Registration Statement and the transactions provided for herein.
(xx) Neither the Company nor, to the knowledge of the Company, any of
its officers, directors or affiliates (within the meaning of the Rules and
Regulations) has taken or will take, directly or indirectly, any action
designed to stabilize or manipulate the price of any security of the Company,
or which might in the future reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company, to
facilitate the sale or resale of the Shares or otherwise.
(xxi) The Company has good and marketable title to all properties and
assets owned by it free and clear of all liens, encumbrances, restrictions,
equity, claims and defects, except such as are described in the Registration
Statement, the Effective Prospectus and the Final Prospectus or such as do not
materially adversely affect the value of any of such properties or
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assets taken as a whole and do not interfere with the use made and proposed to
be made of any of such properties or assets; all of the material leases and
subleases of the Company, and under which the Company holds properties or
assets as lessee or sublessee, constitute the binding obligations of the
Company free and clear of any lien, encumbrance, claim or defect, are in full
force and effect, and the Company is not in default in respect of any of the
material terms or provisions of any of such leases or subleases, and the
Company has not received notice of any material claim which has been asserted
by anyone adverse to the rights of the Company as lessee or sublessee under any
of such leases or subleases, or affecting or questioning the right of the
Company to the continued possession of the leased or subleased premises or
property under any such material lease or sublease, which would have a material
and adverse effect on the Company; and the Company owns or leases all such
premises and properties as are necessary to its operations as now conducted,
and as proposed to be conducted as set forth in the Registration Statement and
the Effective Prospectus and the Final Prospectus; and the properties and
business of the Company conform to the descriptions thereof contained in the
Registration Statement, the Effective Prospectus and the Final Prospectus.
(xxii) The Company holds all franchises, licenses, governmental
approvals, permits, certificates and other authorizations from state, federal
and other regulatory authorities necessary to the ownership, leasing and
operation of its properties or required for the present conduct of its
business, and such franchises, licenses, governmental approvals, permits,
certificates and other authorizations are in full force and effect and the
Company is in all material respects in compliance therewith except where the
failure so to obtain, maintain or comply with would not have a material and
adverse effect on the Company.
(xxiii) The Company maintains books, records and accounts which in
reasonable detail accurately and fairly reflect the transactions and
dispositions of its assets, and maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific authorization; (B)
transactions are executed as necessary to permit preparation of financial
statements in accordance with generally accepted accounting principles, and to
maintain accountability for assets; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and (D) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xxiv) The Company has filed a registration statement pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), to register the Common Stock, has filed an application to list the
Securities on the [National Association of Securities Dealers, Inc. Automated
Quotation System (the "NASDAQ System"), and has received notification that the
listing has been approved, subject to notice of issuance of the Shares.]
(xxv) Neither the Company nor, to the knowledge of the Company, any
director, officer, agent, employee or other person associated with, or acting
on behalf of, the Company has, directly or indirectly at any time since the
inception of the Company: used any Company funds for unlawful contributions,
gifts, entertainment, or other unlawful expenses relating to political
activity; made any unlawful payment to foreign or domestic government officials
or employees or
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to foreign or domestic political parties or campaigns from Company funds;
violated any provision of the Foreign Corrupt Practices Act of 1977 (the
"FCPA"), as amended; or made any unlawful payment. The Company's internal
accounting controls and procedures are sufficient to cause the Company to
comply in all material respects with the Exchange Act and the FCPA.
(xxvi) The Company has obtained from each of its directors and
officers (as defined in the Rules and Regulations), and from each holder of
outstanding shares of Common Stock (or any security or other instrument which
by its terms is convertible into, exercisable for, or exchangeable for, shares
of Common Stock), his, her or its enforceable written agreement, in form and
substance satisfactory to the Representative and its counsel, that for a period
of 270 days from the date of the Final Prospectus he, she or it will not,
without your prior written consent, directly or indirectly, register, issue,
offer, sell, offer to sell, contract to sell, hypothecate, pledge or otherwise
dispose of any shares of Common Stock (or any security or other instrument
which by its terms is convertible into, exercisable for, or exchangeable for,
shares of Common Stock, including, without limitation, any shares of Common
Stock issuable under any employee or director stock options).
(xxvii) The Company is not, and does not intend to conduct its
business in a manner in which it would become, an "investment company" as
defined in Section 3(a) of the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(xxviii) Except as described in the Final Prospectus, the Company has
not incurred any liability for a fee, commission or other compensation on
account of the employment of a broker or finder in connection with the
transactions contemplated by this Agreement.
(xxix) The Company is in compliance with any and all applicable
federal, state and local environmental laws, rules, regulations, treaties,
statutes and codes promulgated by all governmental authorities relating to the
protection of human health and safety, the environment or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"). The Company has
received all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its business. The Company is in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to
receive required permits, license or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would not,
individually or in the aggregate, have a material and adverse effect on the
Company. No action, proceeding, revocation proceeding, writ, injunction or
claim is pending or threatened (nor, to the knowledge of the Company, is there
any basis therefor) relating to the Environmental Laws or to the Company's
activities involving Hazardous Material. "Hazardous Material" means any
material or substance that is prohibited or regulated by any Environmental Law,
or that has been designated or regulated by any governmental authority as
radioactive, toxic, hazardous or otherwise a danger to health, reproduction or
the environment. There have been no costs or liabilities, to the knowledge of
the Company, associated with the effect of or compliance with the Environment
Laws on the business, operations, properties or assets of the Company that
would, individually or in the aggregate, have a material and adverse effect on
the Company.
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(xxx) To the knowledge of the Company, no officer, director or
stockholder of the Company [other than Xxxx Xxxxx] has any affiliation or
association with the National Association of Securities Dealers, Inc. (the
"NASD") or any member thereof, except as described in the Prospectus.
(xxxi) The Company has not distributed and will not distribute any
prospectus or other offering material in connection with the offer and sale of
the Shares, other than any Pre-Effective Prospectus, the Effective Prospectus
or the Final Prospectus or other materials permitted by the Act and the Rules
and Regulations to be distributed.
(xxxii) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter 92-198,
AN ACT RELATING TO DISCLOSURE OF DOING BUSINESS WITH CUBA, and the Company
further agrees that if it commences engaging in business with the government of
Cuba or with any person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the Commission or
with the Florida Department of Banking and Finance (the "Department"),
whichever date is later, or if the information reported or incorporated by
reference in the Prospectus, if any, concerning the Company's business with
Cuba or with any person or affiliate located in Cuba changes in any material
way, the Company will provide the Department notice of such business or change,
as appropriate, in a form acceptable to the Department.
(b) Each Underwriter hereby represents and warrants to the Company as
follows:
(i) Such Underwriter is registered as a broker dealer with the
Commission and is registered with and holds all required authorizations from
any jurisdiction in which such Underwriter's activities in connection with this
Agreement require such registration or authorization.
(ii) There is not now pending or, to the knowledge of such
Underwriter, threatened against such Underwriter any action or proceeding of
which such Underwriter has been advised, either in any court of competent
jurisdiction, before the Commission or before any state securities commission,
concerning such Underwriter's activities as a broker or dealer, nor has such
Underwriter been named in any action or proceeding which may be expected to
have a material adverse effect upon such Underwriter's ability to act as
contemplated herein.
3. PURCHASE, SALE AND DELIVERY OF THE SHARES. On the basis of the
representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to
sell to the several Underwriters, and each Underwriter, severally and not
jointly, agrees to purchase from the Company at $_____ per share (the "Purchase
Price"), the number of Shares set forth opposite the respective name of such
Underwriter on Schedule 1 hereto (and such number of Additional Shares as set
forth in Section 9 hereof), subject to such adjustments to eliminate any
fractional shares as the Representative in its sole discretion shall make.
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Delivery of certificates for the Shares, and payment of the purchase price
for the Shares, shall be made at the offices of X.X. Xxxxxxxxxx & Co., Inc.,
Xxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or such other location as the
Representative shall determine and advise the Company by at least two full
business days' notice in writing. Such delivery and payment shall be made at
10:00 a.m., Boston time, on the third business day following the Effective Date
(as defined in Section 11) unless postponed in accordance with the provisions
of Section 13, or at such other time as shall be agreed upon between you and
the Company. The time and date of such delivery and payment are herein called
the "Closing Date." Delivery of the certificates for the Shares shall be made
to the Representative for the respective accounts of the several Underwriters
against payment in Boston Clearing House Funds by the several Underwriters
through the Representative to the order of the Company for the Shares. The
certificates for the Shares to be so delivered will be in definitive, fully
registered form, will bear no restrictive legends and will be in such
denominations and registered in such names as the Representative shall request,
not less than two full business days prior to the Closing Date. The
certificates for the Shares will be made available to the Representative at
such office or such other place as the Representative may designate for
inspection, checking and packaging not later than 9:30 a.m., Boston time on the
business day prior to the Closing Date. The Company shall not be obligated to
sell any Firm Shares, unless all Firm Shares to be sold pursuant to this
Agreement are purchased hereunder.
4. PUBLIC OFFERING OF THE SHARES. As soon after the Registration Statement
becomes effective as the Representative deems advisable, it is understood that
the Underwriters propose to make a public offering (the "Offering") of the
Shares (other than to residents of or in any jurisdiction in which
qualification of the Shares is required and has not become effective) at the
price (the "Public Offering Price") and upon the other terms set forth in the
Effective Prospectus and the Final Prospectus relating to the Shares.
5. COVENANTS OF THE COMPANY.
(a) The Company covenants and agrees with each of the Underwriters that:
(i) The Company will use its best efforts to cause the Registration
Statement and any amendments thereto to become effective as promptly as
practicable and, if the procedure in Rule 430A of the Rules and Regulations is
followed, to comply with the provisions of and make all requisite filings with
the Commission pursuant to such Rule and to notify you promptly of all such
filings. The Company will not at any time, whether before or after the
effective date of the Registration Statement, file any amendment to the
Registration Statement or supplement to the Effective Prospectus or the Final
Prospectus before termination of the offering of the Shares by the Underwriters
of which the Representative shall not previously have been advised and
furnished with a copy, or to which the Representative shall have reasonably
objected or which is not in compliance with the Act or the Rules and
Regulations.
(ii) As soon as the Company is advised or obtains knowledge thereof,
the Company will advise the Representative (x) when the Registration Statement,
as amended, has become effective, if the provisions of Rule 430A will be relied
upon, when the Final Prospectus has been filed in accordance with said Rule
430A and when any post-effective amendment to the
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Registration Statement becomes effective, (y) of any request made by the
Commission for amending the Registration Statement, for supplementing any
Pre-Effective Prospectus, the Effective Prospectus or the Final Prospectus or
for additional information, or (z) of the issuance by the Commission of any
Stop Order or the institution or threat of any investigation or proceeding for
that purpose, and will use its best efforts to prevent the issuance of any such
Stop Order and, if issued, to obtain the lifting thereof as soon as possible.
(iii) The Company will cooperate with the Representative to qualify
the Shares for offer and sale under the state securities or Blue Sky laws of
such jurisdictions as the Representative may reasonably request and will make
such applications, file such documents and furnish such information as may be
required for such purpose; provided, however, that the Company shall not be
required to qualify as a foreign corporation or file a general or unlimited
consent to service of process in any such jurisdiction.
(iv) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Act, any event occurs as a result of which
the Effective Prospectus, the Final Prospectus, or the Effective Prospectus or
the Final Prospectus as then amended or supplemented, would include any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein not misleading, or if it becomes necessary at any time
to amend or supplement the Effective Prospectus or the Final Prospectus to
comply with the Act or the Rules and Regulations, the Company promptly will so
notify the Representative and prepare and file with the Commission an amendment
or supplement which will correct such statement or omission or an amendment or
supplement which will effect such compliance, each such amendment or supplement
to be reasonably satisfactory to Xxxxx, Xxxxxx-Xxxxx & Xxxxxxxxx, P.C. (the
"Underwriters' Counsel").
(v) As soon as practicable, but in any event not later than 45 days
after the end of the 12 month period beginning on the day after the end of the
fiscal quarter of the Company during which the effective date of the
Registration Statement occurs (90 days in the event that the end of such fiscal
quarter is the end of the Company's fiscal year), the Company will make
generally available to its security holders, in the manner specified in Rule
158(b) of the Rules and Regulations, and to the Representative, an earnings
statement which will be in the detail required by, and will otherwise comply
with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules
and Regulations, which statement need not be audited unless required by the
Act, covering a period of at least 12 consecutive months after the effective
date of the Registration Statement.
(vi) During a period of five years after the date hereof, the Company
will furnish to its stockholders, as soon as practicable, annual reports
(including financial statements audited by independent public accountants and
prepared in accordance with generally accepted accounting principles) and
unaudited quarterly reports of earnings, and will deliver to the
Representative:
(A) concurrently with furnishing such
quarterly reports to its stockholders, a copy thereof in the form furnished to
the Company's stockholders;
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(B) concurrently with furnishing such
annual reports to its stockholders, a balance sheet of the Company as at the
end of the preceding fiscal year, together with statements of operations,
stockholders' equity, and cash flows of the Company for the fiscal year then
ended, accompanied by a copy of the report thereon of independent public
accountants;
(C) concurrently with mailing, copies of all reports (financial
or other) mailed to stockholders;
(D) concurrently with mailing, copies of all reports and
financial statements furnished to or filed with the Commission, the NASD any
securities exchange;
(E) every press release and every material
news item or article of interest to the financial community in respect of the
Company or its affairs which was released or prepared by the Company; and
(F) any additional information of a public
nature concerning the Company or its business which the Representative may
reasonably request.
During such five-year period, if the Company has active subsidiaries, the
foregoing financial statements will be on a consolidated basis to the extent
that the accounts of the Company as its subsidiaries are consolidated, and will
be accompanied by similar financial statements for any significant subsidiary
which is not so consolidated.
(vii) The Company will maintain a Transfer Agent and, if necessary
under the jurisdiction of incorporation of the Company, a Registrar (which may
be the same as the Transfer Agent) for its Common Stock.
(viii) The Company will furnish to the Representative or on the
Representative's order, without charge, at such place as the Representative may
designate, copies of each Pre-Effective Prospectus, the Registration Statement
and any pre-effective or post-effective amendments thereto (two of which copies
will be signed and will include all financial statements and exhibits), the
Effective Prospectus and the Final Prospectus, and all amendments and
supplements thereto, including any prospectus prepared after the effective date
of the Registration Statement, in each case as soon as available and in such
quantities as the Representative may reasonably request. To the extent
applicable, the printed copies of the Registration Statement and each amendment
thereto (including all exhibits filed therewith), any Pre-Effective Prospectus,
Effective Prospectus or Final Prospectus (in each case, as amended or
supplemented) furnished to the Representative will be identical to the
electronic copies filed with the Commission pursuant to XXXXX except to the
extent permitted by Regulation S-T.
(ix) The Company will not, directly or indirectly, without the prior
written consent of the Representative, offer, sell, grant any option to
purchase or otherwise dispose (or announce any offer, sale, grant of any option
to purchase or other disposition) of any shares of Common Stock or any
securities convertible into, or exchangeable or exercisable for, shares of
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Common Stock for a period of 270 days after the date hereof, except pursuant to
this Agreement and except for (a) grants of stock options at exercise prices
equal to the fair market value of the Common Stock under the Stock Option Plan
described in the Effective Prospectus and the Final Prospectus or (b) issuances
pursuant to the exercise of stock options and warrants outstanding on the date
hereof and described in the Effective Prospectus and the Final Prospectus.
(x) Neither the Company nor any of its officers or directors, nor
affiliates of any of them (within the meaning of the Rules and Regulations)
will take, directly or indirectly, any action designed to, or which might in
the future reasonably be expected to cause or result in, stabilization or
manipulation of the price of any securities of the Company.
(xi) As soon as the Company is advised or obtains knowledge thereof,
the Company will promptly advise the Representative of any change in the
information set forth in the certificate delivered by the Company pursuant to
Section 7(vii) below.
(xii) The Company will apply the net proceeds of the offering
substantially in the manner set forth under the caption "Use of Proceeds" in
the Effective Prospectus and the Final Prospectus.
(xiii) The Company will timely file all such reports, forms or other
documents as may be required, from time to time, under the Act, the Exchange
Act, or the Rules and Regulations, and all such reports, forms and documents
filed will comply as to form and substance with the applicable requirements
under the Act, the Exchange Act and the Rules and Regulations.
[(xiv) The Company will cause the Shares to be duly included for
quotation on the NASDAQ System prior to the Closing Date. The Company will use
its best efforts to ensure that the Shares remain included for quotation on the
NASDAQ System following the Closing Date.]
(xv) The Company will not, without the prior written consent of the
Representative, (i) grant to any holder of securities of the Company any right
to request registration of his securities under the Act or any related rights
unless such registration rights may be exercised only after six months
following the effective date of the Registration Statement or (ii) file with
the Commission any Registration Statements covering any equity securities of
the Company within six months following the effective date of the Registration
Statement, except that the Company, at any time, may file a Registration
Statement on Form S-8 to register options and shares of Common Stock issuable
under the plans described in the Effective Prospectus and the Final Prospectus.
(xvi) The Company will not, without the prior written consent of the
Representative, grant to any person who is not subject to an agreement
described in Section 7(x) below any stock options or other rights to acquire
Common Stock which would be exercisable within six months following the
effective date of the Registration Statement.
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(xvii) The Company will comply with all provisions of all undertakings
contained in the Registration Statement.
(xviii) Prior to the Closing Date, the Company will not issue any
press release or other communication, directly or indirectly, or hold any press
conference with respect to the Company, the financial conditions, results of
operations, business, properties, assets or liabilities thereof, or this
offering, without the Representative's prior written consent, which consent
will not be unreasonably withheld.
(xix) The Company will file timely with the Commission accurate
reports on Form SR in accordance with Rule 463 of the Rules and Regulations or
any successor provision.
(xx) The Company will deliver to you, without charge, within a
reasonable period after the expiration of the period in which the Underwriters
may exercise the over-allotment option (but in no event later than six months
from the date of the Prospectus), such bound volumes of the Registration
Statement and all related materials as you may reasonably request.
(xxi) The Company will execute a letter addressed to the transfer
agent for the Company which instructs the transfer agent to note stop transfer
instructions with respect to all of the shares of Common Stock which are
subject to lock up agreements.
(xxii) The Company will do and perform all things reasonably required
or necessary to be done and performed under this Agreement by it prior to the
Closing Date and to satisfy all conditions precedent to the delivery of the
Shares.
(xxiii) All transactions to be entered into by the Company with ERA
shall be at arm's length and shall be approved by an independent committee of
the Board of Directors of the Company.
6. FEES AND EXPENSES.
(a) Regardless of whether the transactions contemplated in this Agreement
are consummated, and regardless of whether for any reason this Agreement is
terminated, the Company will pay and hereby agrees to indemnify each
Underwriter against, all fees and expenses incident to the performance of the
obligations of the Company under this Agreement, including, but not limited to,
(i) the fees and expenses of accountants and counsel for the Company, (ii) all
costs and expenses incurred in connection with the preparation, duplication,
printing, filing, delivery, shipping and mailing of copies of the Registration
Statement and any pre-effective or post-effective amendments thereto, each
Pre-Effective Prospectus, the Effective Prospectus and the Final Prospectus and
any amendments or supplements thereto (including postage costs related to the
delivery by the Underwriters of any Pre-Effective Prospectus, the Effective
Prospectus or the Final Prospectus, or any amendment or supplement thereto),
this Agreement, the Agreement Among Underwriters, any Selected Dealer
Agreement, Underwriters' Questionnaire, and all other documents in connection
with the transactions contemplated herein, including the cost of all copies
thereof, (iii) fees and expenses relating to qualification of the Shares under
state securities
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or Blue Sky laws, including the cost of preparing and mailing the preliminary
and final "Blue Sky Memorandum" and disbursements and reasonable fees of
counsel in connection therewith, (iv) fees and expenses relating to all filings
and negotiations with the NASD, including disbursements and reasonable fees of
counsel in connection therewith, (v) the filing fees payable to the Commission,
the NASD and state securities authorities, (vi) all expenses (including any
applicable transfer taxes) incurred in connection with the issuance and
delivery to the Underwriters of the Shares to be sold in accordance with the
Agreement, (vii) any costs or fees incurred in connection with the quotation of
the Shares on the [Nasdaq System], and (viii) all other costs and expenses
incident to the performance of the Company's obligations hereunder which are
not specifically provided for in this Section.
(b) If the Firm Shares are purchased and sold on the Closing Date, then
the Company shall pay to the Representative an amount equal to 7% of the
aggregate Public Offering Price of all Firm Shares sold in the Offering, which
amount shall represent the underwriting discount. If any Additional Shares are
purchased and sold on the Option Closing Date, then the Company shall pay to
the Representative an additional amount equal to 7% of the aggregate Public
Offering Price of all Additional Shares sold in the Offering, which amount
shall represent an additional underwriting discount as aforesaid.
(c) If the Firm Shares are purchased and sold on the Closing Date, then
the Company shall pay to the Representative an amount equal to 3% of the
aggregate Public Offering Price of all Firm Shares sold in the Offering, which
amount shall represent a non-accountable allowance for the expenses incurred by
the Representative in connection with its duties and activities under this
Agreement. If any Additional Shares are purchased and sold on the Option
Closing Date, then the Company shall pay to the Representative an additional
amount equal to 3% of the aggregate Public Offering Price of all Additional
Shares sold in the Offering, which amount shall represent an additional
non-accountable allowance for the expenses incurred by the Representative as
aforesaid.
(d) The Company agrees that if the Firm Shares are purchased and sold on
the Closing Date then it will issue to the Representative individually, and not
in its capacity as Representative, a warrant to purchase up to 100,000 shares
of Common Stock (115,000 shares if the Underwriters' over-allotment option is
exercised) at a price per share equal to 120% of the Public Offering Price (the
"Underwriter's Warrant"). The Underwriter's Warrant shall not be exercisable
for a period of one year from the date of issuance thereof and shall be
exercisable thereafter for a period of four years. The Underwriter's Warrant
shall be evidenced by a certificate in the form and contain the terms and
conditions as set forth in the exhibits to the Registration Statement. The
Underwriter's Warrant certificate shall be delivered in such denominations and
in such names as may be requested by the Representative.
(e) If the purchase of the Shares as herein contemplated is not
consummated because this Agreement is terminated pursuant to Sections 12(a) or
12(b) hereof or because of the failure, refusal or inability on the part of the
Company to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder other than by reason of a default by any of
the Underwriters, the Company shall reimburse the several Underwriters for
their documented
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out-of-pocket expenses (including counsel fees and disbursements up to a
maximum of $100,000) in connection with any investigation made by them, and any
preparation made by them in respect of marketing of the Shares or in
contemplation of the performance by them of their obligations hereunder. The
Company shall not in any event be liable to any of the Underwriters for the
loss of anticipated profits from the transactions covered by this Agreement.
(f) In the event that the Company abandons the offering contemplated by
the Registration Statement because (i) the Company is acquired by merger,
purchase of assets or otherwise; or (ii) the Company reorganizes with another
entity; or (ii) the Company completes a financing (other than normal bank
debt), then the Company shall hire the Representative under the provisions of
Section 6(g). Any such fees payable under Section 6(g) shall be in addition to
the reimbursement of expenses described in paragraph (e) above.
(g) During the Exclusivity Period (as defined below), if the Company
determines to engage a financial advisor or investment bank to advise the
Company with respect to (i) the issuance and public sale of equity securities
of the Company, the Representative shall have the right, but not the
obligation, to act as a placement agent or managing underwriter, as the case
may be, or (ii) the sale or disposition of the Company or any of its assets or
the acquisition by the Company of any securities or assets of any other
business entity, the Representative shall have the right, but not the
obligation, to act as the Company exclusive financial advisor. In connection
with any such engagements, the Company and the Representative shall enter into
agreements, appropriate under the circumstances, containing provisions for
compensation, indemnification, and other matters that are usual and customary
for other similar circumstances in which the Representative is engaged. The
"Exclusivity Period" refers to the two year period commencing from the date of
this agreement regardless of whether or not the offering is consummated,
PROVIDED, HOWEVER, that in the event that the Representative abandons the
offering for any reason, the Exclusivity Period shall terminate as of the date
of any such abandonment.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligation of each
Underwriter to purchase and pay for the Shares to be purchased by such
Underwriter hereunder is subject to the continuing accuracy of the
representations and warranties of the Company herein as of the date hereof and
as of the Closing Date as if they had been made on and as of the Closing Date;
the accuracy on and as of the Closing Date of the statements of officers of the
Company made pursuant to the provisions hereof; the performance by the Company
on and as of the Closing Date of its covenants and agreements hereunder, and
the following additional conditions:
(i) The Registration Statement has become effective not later than 5:00
p.m., Boston time, on the date of this Agreement, or such later time and date
as to which the Representative has consented and any and all filings required
by Rule 424 and Rule 430A of the Rules and Regulations have been made; no Stop
Order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to the
knowledge of the Company or to the Representative's knowledge, have been
threatened or are contemplated by the Commission; and any request of the
Commission for additional information to be included in the Registration
Statement or the Effective Prospectus or the Final Prospectus or otherwise has
been complied with or otherwise satisfied.
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(ii) The Representative shall not have advised the Company that the
Registration Statement, or any amendment thereto, contains an untrue statement
of fact which, in the Representative's opinion, is material, or omits to state
a fact which, in the Representative's opinion, is material and is required to
be stated therein or is necessary to make the statements therein not
misleading, or that the Effective Prospectus or the Final Prospectus, or any
amendment or supplement thereto, contains an untrue statement of fact which, in
the Representative's opinion, is material, or omits to state a fact which, in
the Representative's opinion, is material and is required to be stated therein
or is necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(iii) On or prior to the Closing Date, the Representative shall have
received from Underwriters' Counsel such opinion or opinions with respect to
the issuance and sale of the Shares, the Registration Statement, the Effective
Prospectus and the Final Prospectus and other related matters as the
Representative reasonably may request and such counsel shall have received such
papers and information as they request to enable them to pass upon such
matters.
(iv) On the Closing Date and the Option Closing Date, as the case may be,
the Underwriters shall have received the opinion, dated at the Closing Date, of
Xxxxx & Xxxxxxx, P.C., counsel to the Company to the effect set forth below:
(A) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the Commonwealth of Pennsylvania
and is duly qualified to transact business as a foreign corporation and is in
good standing under the laws of all other jurisdictions where the ownership or
leasing of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified would not have a
material and adverse effect on the Company;
(B) The Company has corporate power and authority to own or lease its
properties and conduct its business as described in the Registration Statement,
the Effective Prospectus and the Final Prospectus, and the Company has the
power to enter into this Agreement and to carry out all the terms and
provisions hereof to be carried out by it;
(C) To the knowledge of such counsel, there are no holders of
securities of the Company, who, by reason of the filing of the Registration
Statement, have the right (and have not waived such right) to request the
Company to register under the Act, or to include in the Registration Statement,
securities held by them;
(D) To the knowledge of such counsel, no default exists, and no event
has occurred which, with notice or lapse of time or both, would constitute a
default in the due performance and observance of any term, covenant or
condition of any contract, indenture, mortgage, deed of trust, voting trust
agreement, stockholders agreement, note agreement or other agreement or
instrument to which the Company is a party or by which the Company is bound or
to which any of its property is subject;
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(E) The Company has an authorized capitalization as set forth in the
Effective Prospectus and the Final Prospectus; all of the issued shares of
capital stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable, have been issued in compliance with all
applicable federal and state securities laws and were not issued in violation
of or subject to any preemptive rights or other rights to subscribe for or
purchase securities (provided that such counsel's opinion as to any agreements
that might confer any such rights shall be based upon such counsel's
knowledge); the Shares have been duly authorized by all necessary corporate
action of the Company and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be validly issued fully paid and
nonassessable; the Shares have been duly authorized for quotation on the
[Nasdaq System]; and no holders of outstanding shares of capital stock of the
Company are entitled as such to any preemptive or other rights to subscribe for
any of the Shares (provided that such counsel's opinion as to any agreements
that might confer any such rights shall be based upon such counsel's
knowledge);
(F) The statements set forth under the heading "Description of
Securities" in the Effective Prospectus and the Final Prospectus, insofar as
such statements purport to summarize certain provisions of the capital stock of
the Company, provide a fair summary of such provisions;
(G) The execution, delivery and performance of this Agreement have
been duly authorized by all necessary corporate action of the Company and this
Agreement has been duly executed and delivered by the Company; and this
Agreement, assuming it is a binding agreement of the Underwriters, constitutes
a legal, valid and binding agreement of the Company enforceable against the
Company in accordance with its terms (except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, or other similar
laws relating to creditors' rights generally, and general equitable principles
relating to the availability of remedies, and as rights to indemnity or
contribution may be limited by state or federal securities laws and the public
policy underlying such laws);
(H) To the knowledge of such counsel, (A) no legal or governmental
proceedings are pending to which the Company is a party or to which the
property of the Company is subject that are required to be described in the
Registration Statement, the Effective Prospectus or the Final Prospectus and
are not described therein, and no such proceedings have been threatened against
the Company or with respect to any of its properties and (B) no contract or
other document is required to be described in the Registration Statement, the
Effective Prospectus or the Final Prospectus or to be filed as an exhibit to
the Registration Statement that is not described therein or filed as required;
(I) The issuance, offering and sale of the Shares to the Underwriters
by the Company pursuant to this Agreement, the compliance by the Company with
the other provisions of this Agreement and the consummation of the other
transactions herein contemplated do not (A) require the consent, approval,
authorization, registration or qualification of or with any governmental
authority, except such as have been obtained and such as may be required under
state securities or Blue Sky laws, or (B) conflict with or result in a breach
or violation of any of the terms and provisions of, or constitute a default
under, any indenture, mortgage, deed of trust,
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lease or other agreement or instrument, known to such counsel, to which the
Company is a party or by which the Company or any of its properties are bound,
or the charter documents or by-laws of the Company, or any statute or any
judgment, decree, order, rule or regulation of any court or other governmental
authority or any arbitrator known to such counsel and applicable to the Company
(assuming, for purposes of this paragraph, the due qualification of the Shares
for public offering by the Underwriters under state securities laws, and
compliance with all applicable federal and state securities laws);
(J) The Registration Statement is effective under the Act; any
required filing of the Final Prospectus pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b); and, to such
counsel's knowledge, no Stop Order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and no
proceedings for that purpose have been instituted or threatened or, to the
knowledge of such counsel, are contemplated by the Commission; and
(K) The registration statement originally filed with respect to the
Shares and each amendment thereto and the Effective Prospectus and the Final
Prospectus (in each case, other than the financial statements and other
financial and statistical information contained therein, as to which such
counsel need express no opinion) comply as to form in all material respects
with the applicable requirements of the Act and the Rules and Regulations;
(L) The Company is not now an "investment company" as defined in
Section 3(a) of the Investment Company Act; and
(M) All issuances and sales of currently issued and outstanding
securities by the Company were exempt from registration under the Act and
complied in all respects with the provisions of all applicable federal and
state securities laws.
In addition to the matters set forth above, the opinion shall also include
a statement to the effect that such counsel has participated in conferences
with representatives of the Company, counsel to the Underwriters,
representatives of the independent public accountants for the Company and
representatives of the Underwriters at which the contents of the Registration
Statement and any Pre-Effective Prospectus and related matters were discussed,
and that no facts have come to such counsel's attention which would cause such
counsel to believe that the Registration Statement at the time it became
effective contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading or that, on the Closing Date, the Effective
Prospectus, the Final Prospectus and the Registration Statement contained any
untrue statement of material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading (except that such counsel need express no
comment as to the information provided by the Underwriters, the financial
statements and schedules or other financial or statistical data included
therein). With respect to such statement, such counsel may state that their
belief is based on the procedures set forth therein, but is without independent
check and verification except as otherwise expressly stated.
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In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deem proper, on certificates of responsible
officers of the Company and public officials. References to the Registration
Statement, Effective Prospectus and the Final Prospectus in this subparagraph
(iv) of Section 7 shall include any amendment or supplement thereto at the date
of such opinion.
(v) On or prior to the Closing Date, Underwriters' Counsel shall have been
furnished such documents, certificates and opinions as they may reasonably
require for the purposes of enabling them to review or pass upon the matters
referred to in paragraph (iii) of this Section 7, or in order to evidence the
accuracy, completeness or satisfaction of any of the representations or
warranties of the Company, or conditions herein contained.
(vi) At the time that this Agreement is executed by the Company, the
Underwriters shall have received from BDO Xxxxxxx, LLP a letter as of the date
of this Agreement in form and substance satisfactory to you (the "Original
Letter"), and on the Closing Date, the Underwriters shall have received from
BDO Xxxxxxx, LLP a letter dated the Closing Date stating that, as of a
specified date not earlier than five (5) days prior to the Closing Date,
nothing has come to the attention of BDO Xxxxxxx, LLP to suggest that the
statements made in the Original Letter are not true and correct.
(vii) On the Closing Date, the Underwriters shall have received a
certificate, dated the Closing Date, of the principal executive officer and the
principal financial or accounting officer of the Company to the effect that
each of such persons has carefully examined the Registration Statement, the
Effective Prospectus and the Final Prospectus, and any amendments or
supplements thereto and this Agreement, and that:
(A) The representations and warranties of the Company in this
Agreement are true and correct, as if made on and as of the Closing Date, and
the Company has complied with all agreements and covenants and satisfied all
conditions contained in this Agreement on its part to be performed or satisfied
at or prior to the Closing Date;
(B) No Stop Order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for that purpose have been
instituted or are pending or, to the each such person's knowledge, are
contemplated or threatened under the Act, and any and all filings required by
Rule 424 and Rule 430A of the Rules and Regulations have been timely made;
(C) The Registration Statement, the Effective Prospectus and the Final
Prospectus and, if any, each amendment and each supplement thereto, contain all
statements and information required to be included therein, and neither the
Registration Statement nor any amendment thereto includes any untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and none of
the Effective Prospectus or the Final Prospectus or any Pre-Effective
Prospectus (or any amendment or supplement thereto) included any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
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(D) Subsequent to the respective dates as of which information is
given in the Registration Statement, the Effective Prospectus and the Final
Prospectus, the Company has not incurred, up to and including the Closing Date,
other than in the ordinary course of its business or as contemplated in the
Effective Prospectus and the Final Prospectus, any material liabilities or
obligations, direct or contingent; the Company has not paid or declared any
dividends or other distributions on its capital stock; the Company has not
entered into any transactions not in the ordinary course of business or as
contemplated in the Effective Prospectus and the Final Prospectus, and there
has not been any change in the capital stock (other than change resulting from
the grant or exercise of options under stock option plans or agreements in
effect as of the date of this Agreement) or long-term debt or any increase in
the short-term borrowings (other than as disclosed in the Effective Prospectus
and the Final Prospectus or any increase in short-term borrowings in the
ordinary course of business) of the Company or any material adverse change in
the present or prospective business condition (financial or other), net worth
or results of operations of the Company; the Company has not sustained any
material loss or damage to its property or assets, whether or not insured;
there is no litigation which is pending or, to each such person's knowledge,
threatened against the Company which is required to be set forth in the
Effective Prospectus or Final Prospectus which has not been so set forth; and
there has occurred no event required to be set forth in an amended or
supplemented Effective Prospectus or Final Prospectus which has not been so set
forth.
References to the Registration Statement, the Effective Prospectus and the
Final Prospectus in this paragraph (vii) are to such documents as amended and
supplemented at the date of the certificate.
(viii) Subsequent to the respective dates as of which information is given
in the Registration Statement, the Effective Prospectus and the Final
Prospectus up to and including the Closing Date there has not been any material
adverse change, or any development involving a prospective material adverse
change, in the business or properties of the Company which change or
development makes it impractical or inadvisable in the Representative's
judgment to proceed with the public offering or the delivery of the Shares as
contemplated by the Effective Prospectus and the Final Prospectus.
(ix) No order suspending the sale of the Shares prior to the Closing Date
in any jurisdiction designated by you pursuant to Section 5(iii) hereof has
been issued on or prior to the Closing Date and no proceedings for that purpose
have been instituted or, to your knowledge or that of the Company, have been or
are contemplated.
(x) The Representative shall have received from each person who is a
director or officer of the Company or who is the holder of outstanding shares
of Common Stock (or any security or other instrument which by its terms is
convertible into, exerciseable for, or exchangeable for, shares of Common
Stock) an agreement to the effect that such person will not, directly or
indirectly, without the prior written consent of the Representative, offer,
sell, grant, any portion to purchase or otherwise dispose (or announce any
offer, sale, grant of an option to purchase or other disposition) of any shares
of Common Stock or any securities convertible into,
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or exchangeable or exercisable for, shares of Common Stock for a period of 270
days after the date of this Agreement.
(xi) The Company shall have furnished the Underwriters with such further
opinions, letters, certificates and documents as the Representative or
Underwriters' Counsel may reasonably request in order to effectuate the
provisions of this Agreement. All opinions, certificates, letters and documents
to be furnished by the Company will comply with the provisions hereof only if
they are reasonably satisfactory in all material respects to the Representative
and to the Underwriters' Counsel. The Company shall furnish the Underwriters
with conformed copies of such opinions, certificates, letters and documents in
such quantities as you reasonably request. The certificates delivered under
subsections (vii) and (xi) of this Section 7 shall constitute representations,
warranties and agreements of the Company, as to all matters set forth therein
as fully and effectively as if such matters had been set forth in Section 2 of
this Agreement.
(xii) The NASD, upon review of the terms of the public offering of the
Shares, shall not have objected to the Underwriters' participation in such
offering.
(xiii) Prior to or on the Closing Date, the Company shall have provided to
the Representative copies of the agreements referred to in Section 2(a)(xvi).
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Underwriter,
its officers, directors, partners, employees, agents and counsel, and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act, against any and all losses,
claims, damages, expenses or liabilities whatsoever (which shall include, for
all purposes of this Section 8, but not limited to, attorneys' fees and any and
all expense whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever
whether or not in connection with any litigation in which an indemnified party
is a party and whether or not involving a third party claim and any and all
amounts paid in settlement of any claim or litigation), joint or several (and
actions in respect thereof), to which such Underwriter or such persons may
become subject, under the Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages, expenses, liabilities or actions arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, the Effective Prospectus or the Final Prospectus
or any Pre-Effective Prospectus, or any amendment or supplement thereto, or any
Blue Sky application or other document executed by the Company specifically for
that purpose or based upon written information furnished by the Company filed
in any state or other jurisdiction in order to qualify any or all of the Shares
under the state securities or Blue Sky laws thereof (any such application,
document or information being hereinafter called a "Blue Sky Application"), or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each such Underwriter or
person for any legal or other expenses incurred by such Underwriter or person
in connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that the
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Company will not be liable in any such case to any such Underwriter, to the
extent that any such loss, claim, damage, liability or action arises out of or
is based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in any of such document in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter expressly for use therein, and PROVIDED, FURTHER, that such
indemnity with respect to any Pre-Effective Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased Shares which are the subject thereof if such Underwriter
failed to send or give a copy of the Effective Prospectus or the Final
Prospectus (or the Effective Prospectus or the Final Prospectus as amended or
supplemented) to such person at or prior to confirmation of the sale of such
Shares to such person in any case where such delivery is required by the Act
and the untrue statement or omission of a material fact contained in such
Pre-Effective Prospectus was corrected in the Effective Prospectus or Final
Prospectus (or the Effective Prospectus or the Final Prospectus as amended and
supplemented); or (ii) any breach of any representation, warranty, covenant or
agreement of the Company contained in this Agreement. The indemnity agreement
in this subparagraph shall be in addition to any liability which the Company
may have at common law or otherwise.
(b) Each of the Underwriters agrees severally, but not jointly, to
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act against any and all losses, claims, damages, expenses
or liabilities (and actions in respect thereof) to which the Company or any
such director, officer, or controlling person may become subject, under the Act
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages, expenses, liabilities or
actions arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or the
Effective Prospectus or the Final Prospectus or any Pre-Effective Prospectus,
or an amendment or supplement thereto or any Blue Sky Application, or arise out
of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished by that Underwriter expressly for use therein; and will reimburse all
legal or other expenses reasonably incurred by the Company or any such
director, officer, or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that any obligation of any Underwriter to provide indemnification under the
provisions of this Section 8(b) shall not be in excess of the underwriting
discount and commission applicable to the Shares purchased by such Underwriter
hereunder. The Company acknowledges that the statements with respect to the
public offering of the Shares set forth under the heading "Underwriting" and
the stabilization legend in the Prospectus have been furnished by the
Underwriters expressly for use therein and constitute the only information
furnished in writing by or on behalf of the Underwriters for inclusion in the
Effective Prospectus and the Final Prospectus. The indemnity agreement in this
subparagraph (b) shall be in addition to any liability which each of the
Underwriters may have at common law or otherwise.
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(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against one or more indemnifying parties
under this Section 8, notify such indemnifying party or parties of the
commencement thereof; but the omission so to notify an indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8 or to the extent that the indemnifying
party was not adversely affected by such omission. In case any such action is
brought against an indemnified party and it notifies an indemnifying party or
parties of the commencement thereof, the indemnifying party or parties against
which a claim is to be made will be entitled to participate therein and, to the
extent that it or they may wish, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; provided, however, that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party has reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and otherwise to participate in the
defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from any indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party has employed such counsel in
connection with the assumption of such different or additional legal defenses
in accordance with the proviso to the immediately preceding sentence, (ii) the
indemnifying party has not employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action, or (iii) the indemnifying party has
authorized in writing the employment of counsel for the indemnified party at
the expense of the indemnifying party. The indemnifying party, in defense of
any action assumed by it, shall not, without the consent of the indemnified
party, consent to entry of any judgment or enter into any settlement of such
action which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such action. The indemnified party shall not agree to
settle any action or claim for which it intends to seek indemnification
hereunder without the prior written consent of the indemnifying party.
(d) If the indemnification provided for in this Section 8 is unavailable
to hold harmless an indemnified party under subparagraphs (a) or (b) above in
respect of any losses, claims, damages, expenses or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid as a result of such losses, claims, damages,
expenses or liabilities (or actions in respect thereof) (i) in such proportion
as is appropriate to reflect the relative benefits received by each of the
contributing parties, on the one hand, and the party to be indemnified on the
other hand, from the offering of the Shares or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of each of the contributing parties, on
the one hand, and the party to be indemnified on the other hand in connection
with the statements or omissions that resulted in such losses,
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claims, damages, expenses or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand, and the Underwriters on the other,
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Shares (before deducting expenses) bear to the total
underwriting discounts received by the Underwriters hereunder, in each case as
set forth in the table on the Cover Page of the Final Prospectus. Relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company on the one hand, or by the Underwriters on the other, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
expenses or liabilities (or actions in respect thereof) referred to above in
this subparagraph (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subparagraph (d), the Underwriters shall not be required to contribute any
amount in excess of the underwriting discount applicable to the Shares
purchased by the Underwriters hereunder. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person, if any who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, each
officer of the Company who has signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to this subparagraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect to which a claim for
contribution may be made against another party or parties under this
subparagraph (d), notify such party or parties from whom contribution may be
sought, but the omission so to notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this
subparagraph (d), or to the extent that such party or parties were not
adversely affected by such omission. Anything in this Section 8(d) to the
contrary notwithstanding, no party shall be liable for contribution with
respect to the settlement of any claim or action effected without its written
consent. This Section 8(d) is intended to supersede any right to contribution
under the Act, the Exchange Act or otherwise. The contribution agreement set
forth above shall be in addition to any liabilities which any indemnifying
party may have at common law or otherwise.
9. RIGHT TO INCREASE OFFERING. At any time and from time to time during a
period of 30 days from the effective date of the Final Prospectus, the
Representative, by no less than two business days' prior notice to the Company,
may designate a closing (which may be concurrent with, and part of, the closing
on the Closing Date with respect to the Firm Shares or may be a second closing
and which shall be referred to as the "Option Closing Date") at which the
Underwriters shall purchase from the Company in the manner described below, for
the sole purpose of covering over-allotments by the Underwriters during the
public offering, such number
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of Additional Shares as are specified in the notice. The maximum number of
Additional Shares to be sold by the Company is 150,000 shares of Common Stock.
Except to the extent waived by the Underwriters, all the provisions of this
Agreement applicable with respect to the transactions contemplated on the
Closing Date shall apply to such later closing (with such changes as are
necessary) and the Additional Shares purchased at such closing hereunder shall
be deemed Shares for all purposes of this Agreement.
If any Additional Shares are to be purchased, each Underwriter, severally
and not jointly, agrees to purchase from the Company, at the Purchase Price,
the respective number of Additional Shares which bears the same proportion to
the number of Additional Shares to be sold by the Company as the total number
of Firm Shares set forth opposite the name of such Underwriter in SCHEDULE 1
hereto bears to the total number of Firm Shares to be sold hereunder, subject
to such adjustments to eliminate any fractional shares as the Representative in
its sole discretion shall make.
10. REPRESENTATIONS, ETC. TO SURVIVE DELIVERY. The respective representations,
warranties, agreements, covenants, indemnities and statements of, and on behalf
of, the Company and its officers, and the Underwriters, respectively, set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters, and
will survive delivery of and payment for the Shares. Any successors to the
Underwriters shall be entitled to the indemnity, reimbursement and contribution
agreements contained in this Agreement.
11. EFFECTIVE DATE. This Agreement shall become effective at 10:00 a.m., Boston
time, on the next full business day following the date hereof, or at such
earlier time after the Registration Statement becomes effective as the
Representative, in its discretion, shall release the Shares for the sale to the
public, provided, however, that the provisions of Sections 6, 8 and 12 of this
Agreement shall at all times be effective. For purposes of this Section 11, the
Shares to be purchased hereunder shall be deemed to have been so released upon
the earlier of dispatch by the Representative of telegrams to securities
dealers releasing such Shares for offering or the release by the Representative
for publication of the first newspaper advertisement which is subsequently
published relating to the Shares.
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12. TERMINATION.
(a) This Agreement (except for the provisions of Sections 6 and 8 hereof)
may be terminated by the Company or at any time before this Agreement becomes
effective in accordance with Section 11 hereof, by notice to the
Representative.
(b) This Agreement (except for the provisions of Sections 6 and 8 hereof)
may also be terminated by the Representative by notice to the Company (i) at
any time before it becomes effective in accordance with Section 11 hereof; (ii)
in the event that the Company terminates this Agreement under Section 12(a)
hereof; (iii) in the event that the Company has failed to comply in any
material respect with any of the provisions of this Agreement on its part to be
performed at or prior to the Closing Date or the Option Closing Date, or if any
of the representations or warranties herein or therein are not accurate, or if
the covenants, agreements or conditions of, or applicable to, the Company
herein or therein contained have not been complied with in any material respect
or satisfied within the time specified; (iv) if prior to the Closing Date or
the Option Closing Date, the Company has sustained a loss by strike, fire,
flood, accident or other calamity of such a character as to interfere
materially with the conduct of the business and operations of the Company; (v)
if prior to the Closing Date or the Option Closing Date, trading in securities
in the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock
Market is suspended or a general banking moratorium has been declared by
federal or state authorities; (vi) if there has been a declaration of war by
the United States, or if the United States has become engaged in a major
outbreak of armed hostilities with a foreign government; or (vii) if there has
been such a material adverse change in general economic, political or financial
conditions or if there has been a material and adverse change to the Company
as, in the Representative's judgment, makes it impracticable or inadvisable to
make or consummate a public offering of the Shares on the terms and in the
manner contemplated in the Final Prospectus and in the Registration Statement.
(c) Termination of this Agreement shall be without liability of any party
to any other party other than as provided in Sections 6 and 8 hereof.
13. SUBSTITUTION OF UNDERWRITERS. If one or more of the Underwriters shall fail
or refuse (otherwise than pursuant to Section 7 or for a reason sufficient to
justify the termination of this Agreement under the provisions of Section 12
hereof) to purchase and pay for the number of Shares agreed to be purchased by
such Underwriter or Underwriters upon tender to you of such Shares in
accordance with the terms hereof, and the number of such Shares shall not
exceed 10% of the Shares, then each of the non-defaulting Underwriters shall
purchase and pay for (in addition to the number of such Shares which it has
severally agreed to purchase hereunder) that proportion of the number of Shares
which the defaulting Underwriter or Underwriters shall have so failed or
refused to purchase which the number of Shares agreed to be purchased by such
non-defaulting Underwriter bears to the aggregate number of Shares so agreed to
be purchased by all such non-defaulting Underwriters. In such case, you shall
have the right to postpone each Closing Date specified in Sections 3 and 9
hereof to a date not exceeding seven full business days after the date
originally fixed as such Closing Date pursuant to said Sections 3 and 9 in
order that any necessary
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changes in the Registration Statement, the Final Prospectus or any other
documents or arrangement may be made.
If one or more of the Underwriters shall fail or refuse (otherwise than
pursuant to Section 7 or for a reason sufficient to justify the termination of
this Agreement under the provisions of Section 12 hereof) to purchase and pay
for the number of Shares agreed to be purchased by such Underwriter or
Underwriters upon tender to you of such Shares in accordance with the terms
hereof and the number of such Shares shall exceed 10% of the total Shares, then
(unless within 48 hours after such default arrangements to your satisfaction
shall have been made for the purchase of the defaulted Shares by an Underwriter
or Underwriters) this Agreement will terminate without liability on the part of
any non-defaulting Underwriter or on the part of the Company or the Selling
Shareholders except as otherwise provided in this Agreement. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this paragraph. Nothing in this Section 13, and no action
taken hereunder, shall relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
14. NOTICES. All communications hereunder shall be in writing and if sent to
the Representative shall be mailed or delivered or telecopied and confirmed to
X.X. Xxxxxxxxxx & Co., Inc., Xxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Corporate Finance Department, with a copy to Xxxxx, Xxxxxx-Xxxxx &
Xxxxxxxxx, P.C., 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention:
Xxxxxxx X. Xxxxxx, Esq., or, if sent to the Company, shall be mailed or
delivered or telecopied and confirmed to the Company at 0000 Xxxx Xxxxxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: President, with a copy to Xxxxx &
Xxxxxxx, P.C., 2900 CNG Tower, 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000, Attention: Xxxxxx X. Xxxxxxx, Esq.
15. SUCCESSORS. This Agreement shall inure to the benefit of and be binding
upon the Company and each Underwriter and their respective successors, legal
representatives, heirs and assigns, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person, except that the
representations, warranties, indemnities and contribution agreements of the
Company contained in this Agreement shall also be for the benefit of each
Underwriter's officers, directors, partners, employees, agents and counsel and
any person or persons who control any Underwriter within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, and except that the
Underwriters' indemnity and contribution agreements shall also be for the
benefit of the directors of the Company, the officers of the Company who have
signed the Registration Statement, and any person or persons who control the
Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act. No purchaser of Shares from the Underwriters will be deemed a
successor because of such purchase.
16. APPLICABLE LAW; JURISDICTION. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts,
without giving effect to the conflict of law principles thereof.
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17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
18. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of any
section, paragraph or provision of this Agreement shall not effect the validity
or enforceability of any other section, paragraph or provision hereof. If any
section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as is necessary to make it valid and
enforceable.
If the foregoing correctly sets forth our understanding, please indicate
the Underwriters' acceptance thereof in the space provided below for the
purpose, whereupon this letter shall constitute a binding agreement between us.
Very truly yours,
SEEC, Inc.
By: __________________________
Name:
Title:
The foregoing Underwriting
Agreement is confirmed and accepted as of
the date first above written:
X.X. Xxxxxxxxxx & Co., Inc.,
acting on its own behalf and as
the Representative of the several
Underwriters referred to in the
foregoing Agreement
By X.X. Xxxxxxxxxx & Co., Inc.
By:--------------------------
Name:
Title:
31
SCHEDULE 1
UNDERWRITERS
Number of
Firm Shares
UNDERWRITER TO BE PURCHASED
X.X. Xxxxxxxxxx & Co., Inc....................................................
Total 1,000,000
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