EXHIBIT 1.1
Sensytech, Inc.
2,020,000 Shares
Common Stock
UNDERWRITING AGREEMENT
________________, 2002
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
BB&T CAPITAL MARKETS, A DIVISION OF XXXXX & XXXXXXXXXXXX, INC.
as Representatives of the several Underwriters
c/o Friedman, Billings, Xxxxxx & Co., Inc.
Potomac Tower
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Sensytech, Inc., a Delaware corporation (the "Company"), and S.
R. Xxxxxxx (the "Selling Stockholder"), each confirms its agreement with each of
the Underwriters listed on Schedule II hereto (collectively, the
"Underwriters"), for whom Friedman, Billings, Xxxxxx & Co., Inc. and BB&T
Capital Markets, a division of Xxxxx & Xxxxxxxxxxxx, Inc. are acting as
representatives (in such capacity, the "Representatives"), with respect to the
sale by the Company and the Selling Stockholder of an aggregate of 2,020,000
shares (the "Initial Shares") of Common Stock, par value $0.01 per share, of the
Company ("Common Stock") in the respective numbers of shares set forth opposite
the names of the Company and the Selling Stockholder in Schedule I hereto, and
the purchase by the Underwriters, acting severally and not jointly, of the
respective number of shares of Common Stock set forth opposite the names of the
Underwriters in Schedule II hereto. The Company also confirms the grant of the
option described in Section 1(b) hereof to purchase all or any part of 300,000
additional shares of Common Stock to cover overallotments (the "Option Shares"),
if any, from the Company to the Underwriters, acting severally and not jointly.
The Initial Shares of Common Stock to be purchased by the Underwriters and all
or any part of the Option Shares of Common Stock subject to the option described
in Section l(b) hereof are hereinafter called, collectively, the "Shares".
The Company has prepared and filed with the Securities and
Exchange Commission (the Commission"), a registration statement on Form S-1 (No.
333-98757) and a related preliminary prospectus for the registration of the
Shares under the Securities Act of 1933, as amended (the "Securities Act"), and
the rules and regulations thereunder (the "Securities Act Regulations"). The
Company has prepared and filed such amendments thereto, if any, and such amended
preliminary prospectuses, if any, as may have been required to the date hereof,
and will file such additional amendments thereto
and such amended prospectuses as may hereafter be required. The registration
statement has been declared effective under the Securities Act by the
Commission. The registration statement as amended at the time it became
effective (including all exhibits, financial schedules and information deemed
(whether by incorporation by reference or otherwise) to be a part of the
registration statement at the time it became effective pursuant to Rule 430A of
the Securities Act Regulations or otherwise) is hereinafter called the
"Registration Statement," except that, if the Company files a post-effective
amendment to such registration statement which becomes effective prior to the
Closing Time (as defined below), "Registration Statement" shall refer to such
registration statement as so amended. Any registration statement filed pursuant
to Rule 462(b) of the Securities Act Regulations is hereinafter called the "Rule
462(b) Registration Statement," and after such filing the term "Registration
Statement" shall include the 462(b) Registration Statement. Each prospectus
included in the registration statement, or amendments thereof or supplements
thereto, before it became effective under the Securities Act and any prospectus
filed with the Commission by the Company with the consent of the Underwriters
pursuant to Rule 424(a) of the Securities Act Regulations is hereinafter called
the "Preliminary Prospectus." The term "'Prospectus" means the prospectus in the
form included in the Registration Statement at the time of effectiveness, or if
Rule 430A of the Securities Act Regulations is relied upon, the term
"Prospectus" shall also include the final prospectus, as first filed with the
Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the Securities Act
Regulations, and any amendments thereof or supplements thereto. The Commission
has not issued any order preventing or suspending the use of any Preliminary
Prospectus.
The Company and the Selling Stockholders understand that the
Underwriters propose to make a public offering of the Shares as soon as the
Underwriters deem advisable after the effective date of the Registration
Statement and this Agreement has been executed and delivered. The Company and
the Selling Stockholders hereby confirm that the Underwriters and dealers have
been authorized to distribute or cause to be distributed each Preliminary
Prospectus and are authorized to distribute the Prospectus (as from time to time
amended or supplemented if the Company furnishes any amendments or supplements
thereto to the Underwriters).
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The Company, the Selling Stockholders and the Underwriters agree
as follows:
1. Sale and Purchase:
(a) Initial Shares. Upon the basis of the warranties and representations
and other terms and conditions herein set forth, at the purchase price per share
of $________, the Company agrees to sell to the Underwriters the number of
Initial Shares set forth in Schedule I opposite its name and each Selling
Stockholder agrees to sell to the Underwriters the number of Initial Shares set
forth in Schedule I opposite such Selling Stockholder's name, and each
Underwriter agrees, severally and not jointly, to purchase from the Company and
the Selling Stockholders the number of Initial Shares set forth in Schedule II
opposite such Underwriter's name, plus any additional number of Initial Shares
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 8 hereof, subject in each case, to such adjustments among
the Underwriters as the Representatives in their sole discretion shall make to
eliminate any sales or purchases of fractional shares. The Underwriters may from
time to time increase or decrease the public offering price after the initial
public offering to such extent as the Underwriters may determine.
(b) Option Shares. In addition, upon the basis of the warranties and
representations and other terms and conditions herein set forth, at the purchase
price per share set forth in paragraph (a), the Company hereby grants an option
to purchase all or any part of the 300,000 Option Shares to the Underwriters.
The option hereby granted will expire 30 days after the date hereof and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Shares upon notice by the Representatives to the
Company setting forth the number of Option Shares as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Shares. Any such time and date of delivery (a "Date of
Delivery") shall be determined by the Representatives, but shall not be later
than three full business days (or earlier, without the consent of the Company,
than two full business days) after the exercise of said option, nor in any event
prior to the Closing Time, as hereinafter defined. If the option is exercised as
to all or any portion of the Option Shares, the Company will sell that
proportion of the total number of Option Shares then being purchased which the
number of Initial Shares set forth in Schedule I opposite the name of the
Company bears to the total number of Initial Shares, and each of the
Underwriters, acting severally and not jointly, will purchase that proportion of
the total number of Option Shares then being purchased which the number of
Initial Shares set forth in Schedule II opposite the name of such Underwriter
bears to the total number of Initial Shares, subject in each case to such
adjustments among the Underwriters as the Representatives in their sole
discretion shall make to eliminate any sales or purchases of fractional shares.
The Underwriters may from time to time increase or decrease the public offering
price of the Option Shares after the initial public offering to such extent as
the Underwriters may determine.
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2. Payment and Delivery:
(a) Initial Shares. Payment of the purchase price for the Initial Shares
shall be made to the Company and the Selling Stockholders by wire transfer of
immediately available funds or certified or official bank check payable in
federal (same-day) funds at the offices of Xxxxxx, Xxxx & Xxxxxxxx LLP located
at 0000 Xxxxxxxxxxx Xxx., X.X., Xxxxxxxxxx, X.X. 00000 (unless another place
shall be agreed upon by the Representatives and the Company) against delivery of
the certificates for the Initial Shares to the Representatives for the
respective accounts of the Underwriters. Such payment and delivery shall be made
at 9:30 a.m., New York City time, on the third (fourth, if pricing occurs after
4:30 p.m., New York City time) business day after the date hereof (unless
another time, not later than ten business days after such date, shall be agreed
to by the Representatives and the Company). The time at which such payment and
delivery are actually made is hereinafter sometimes called the "Closing Time."
Certificates for the Initial Shares shall be delivered to the Representatives in
definitive form registered in such names and in such denominations as the
Representatives shall specify. For the purpose of expediting the checking of the
certificates for the Initial Shares by the Representatives, the Company and the
Selling Stockholders agree to make such certificates available to the
Representatives for such purpose at least one full business day preceding the
Closing Time.
(b) Option Shares. In addition, in the event the option with respect to
the Option Shares is exercised in whole or in part on one or more occasions,
payment of the purchase price for the Option Shares so purchased shall be made
to the Company by wire transfer of immediately available funds or certified or
official bank check payable in federal (same-day) funds at the offices of
Xxxxxx, Xxxx & Xxxxxxxx, LLP located at 0000 Xxxxxxxxxxx Xxx., X.X., Xxxxxxxxxx,
X.X. 00000 (unless another place shall be agreed upon by the Representatives and
the Company), against delivery of the certificates for the Option Shares to the
Representatives for the respective accounts of the Underwriters. Such payment
and delivery shall be made at 9:30 a.m., New York City time, on each Date of
Delivery determined pursuant to Section 1(b) above. Certificates for the Option
Shares shall be delivered to the Representatives in definitive form registered
in such names and in such denominations as the Representatives shall specify.
For the purpose of expediting the checking of the certificates for the Option
Shares by the Representatives, the Company agrees to make such certificates
available to the Representatives for such purpose at least one full business day
preceding the relevant Date of Delivery.
3. Representations and Warranties of the Company and the Selling
Stockholder:
I. The Company and the Selling Stockholder, jointly and severally,
represents and warrants to each Underwriter that:
(a) ST Production Systems, Inc. is the only active subsidiary
of the Company (the "Subsidiary"). The Company and the Subsidiary each has been
duly
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incorporated and is validly existing as a corporation in good standing under the
laws of its respective jurisdiction of incorporation with full corporate power
and authority to own, lease, license and operate its respective assets and
properties and to conduct its respective business as described in the
Registration Statement and Prospectus and, in the case of the Company, to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby;
(b) the Company and its Subsidiary are duly qualified or
licensed to do business as a foreign corporation by each jurisdiction in which
the nature of the business conducted by it or the location of the assets or
properties owned, leased, licensed or operated by it requires such qualification
or license and in which the failure, individually or in the aggregate, to be so
qualified or licensed could have a material adverse effect on the assets,
business, operations, earnings, prospects, properties or condition (financial or
otherwise) of the Company and its Subsidiary taken as a whole, and the Company
and the Subsidiary are duly qualified, and are in good standing, in each
jurisdiction in which they own or lease real property or maintain an office and
in which such qualification is necessary, except where the failure to be so
qualified and in good standing would not have a material adverse effect on the
assets, business, operations, earnings, prospects, properties or condition
(financial or otherwise) of the Company and its Subsidiary taken as a whole;
except as disclosed in the Prospectus, no Subsidiary is prohibited or
restricted, directly or indirectly, from paying dividends to the Company, or
from making any other distribution with respect to such Subsidiary's capital
stock or from repaying to the Company or any other Subsidiary any amounts which
may from time to time become due under any loans or advances to such Subsidiary
from the Company or such other Subsidiary, or from transferring any such
Subsidiary's property or assets to the Company or to any other Subsidiary; other
than as disclosed in the Prospectus, the Company does not control or own,
directly or indirectly, any capital stock or other equity securities of any
other corporation or any ownership interest in any partnership, joint venture or
other association;
(c) the Company and its Subsidiary are in compliance in all
material respects with all applicable laws, rules, regulations, orders, decrees
and judgments, including those relating to transactions with affiliates;
(d) neither the Company nor its Subsidiary is in breach or
violation of or in default under (nor has any event occurred which with notice,
lapse of time, or both would constitute a breach of, or default under), any term
or provision of its respective articles of incorporation or charter or bylaws,
or in the performance or observance of any obligation, agreement, covenant or
condition contained in any license, indenture, mortgage, deed of trust, loan or
credit agreement or other agreement or instrument to which the Company or its
Subsidiary is a party or by which any of them or their respective properties is
bound, except for such breaches or defaults which would not have a material
adverse effect on the assets, business, operations, earnings, prospects,
properties or condition (financial or otherwise) of the Company and its
Subsidiary taken as a whole; and the execution, delivery and performance of this
Agreement, and
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consummation of any of the transactions contemplated hereby will not give rise
to a right to terminate or accelerate the due date of any payment due under, or
conflict with, or result in any breach or violation of, or constitute a default
under (nor constitute any event which with notice, lapse of time, or both would
constitute a breach of, or default under), or require any consent or waiver
under, any provision of the articles of incorporation or charter or bylaws of
the Company or its Subsidiary, or any provision of any franchise, permit,
license, indenture, mortgage, deed of trust, loan or credit agreement or other
agreement or instrument to which the Company or its Subsidiary is a party or by
which any of them or their respective properties may be bound or affected, or
under any federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company or its Subsidiary, or result
in the creation or imposition of any lien, charge, claim or encumbrance upon any
property or asset of the Company or its Subsidiary, except for such consents or
waivers which have already been obtained and are in full force and effect;
(e) all necessary corporate action has been duly and validly
taken by the Company to authorize the execution, delivery and performance of
this Agreement and the issuance and sale of the Shares by the Company; this
Agreement has been duly authorized, executed and delivered by the Company and is
a legal, valid and binding agreement of the Company enforceable in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, and by general principles of equity, and except to the extent that
the indemnification and contribution provisions of Section 9 hereof may be
limited by federal or state securities laws and public policy considerations in
respect thereof;
(f) no approval, authorization, consent, license, permit,
certificate or order of or filing by or with any federal, state or local
governmental or regulatory commission, board, body, authority or agency is
required in connection with the Company's execution, delivery and performance of
this Agreement, its consummation of the transaction contemplated hereby, and its
sale and delivery of the Shares, other than (A) such as have been obtained and
are in full force and effect, or will have been obtained and will be in full
force and effect at the Closing Time or the relevant Date of Delivery, as the
case may be, under the Securities Act, (B) such approvals as have been obtained
and are in full force and effect in connection with the approval of the
quotation of the Shares on the Nasdaq National Market and (C) any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Underwriters;
(g) each of the Company and its Subsidiary has all necessary
licenses, authorizations, consents, permits, certificates and approvals and has
made all necessary filings required under any federal, state or local law,
regulation or rule, and has obtained all necessary licenses, authorizations,
consents, permits, certificates and approvals from other persons, required in
order to own, lease and license their respective assets and properties and
conduct their respective businesses as described in the Prospectus, all of which
are valid and in full force and effect, except to the extent that any failure to
have
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any such licenses, authorizations, consents or approvals, to make any such
filings or to obtain any such licenses, authorizations, consents, permits,
certificates or approvals would not, individually or in the aggregate, have a
material adverse effect on the assets, business, operations, earnings,
prospects, properties or condition (financial or otherwise) of the Company and
its Subsidiary taken as a whole; neither the Company nor its Subsidiary is
required by any applicable law to obtain accreditation or certification from any
governmental agency or authority in order to provide the products and services
which it currently provides or which it proposes to provide as set forth in the
Prospectus; neither the Company nor its Subsidiary is in violation of, in
default under, or has received any notice regarding a possible violation,
default or revocation of any such license, authorization, consent, permit,
certificate or approval or any federal, state, local or foreign law, regulation
or rule or any decree, order or judgment applicable to the Company or its
Subsidiary the effect of which could be material and adverse to the assets,
business, operations, earnings, prospects, properties or condition (financial or
otherwise) of the Company and its Subsidiary taken as a whole; no event has
occurred that allows, or after notice or lapse of time would allow, revocation
or termination of any such license, authorization, consent, permit, certificate
or approval or results in any other material impairment of the rights of the
Company or any Subsidiary thereunder; and no such license, authorization,
consent, permit, certificate or approval contains a materially burdensome
restriction that is not adequately disclosed in the Registration Statement and
the Prospectus;
(h) the Company has an authorized capitalization as set forth
in the Prospectus under the caption "Capitalization;" the outstanding shares of
capital stock of the Company and its Subsidiaries have been duly and validly
authorized and issued and are fully paid and non-assessable and none of them was
issued in violation of any preemptive or other similar right, and all of the
outstanding shares of capital stock of the Subsidiary are directly or indirectly
owned of record and beneficially by the Company; all securities issued by the
Company, its Subsidiary or any trust established by the Company or its
Subsidiary, have been issued and sold in compliance with (x) all applicable
federal and state securities laws, (y) the laws of the applicable jurisdiction
of incorporation of the issuing entity and (z) to the extent applicable, the
requirements of the Nasdaq SmallCap Market; except as disclosed in the
Prospectus, there are no outstanding (i) securities or obligations of the
Company or its Subsidiary convertible into or exchangeable for any capital stock
of the Company or the Subsidiary, (ii) warrants, rights or options to subscribe
for or purchase from the Company or the Subsidiary any such capital stock or any
such convertible or exchangeable securities or obligations, or (iii)
obligations, commitments, plans or arrangements of the Company or the Subsidiary
to issue any shares of capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or options; there are no
statutory preemptive or other similar rights to subscribe for or to purchase or
acquire any shares of capital stock of the Company or any such rights pursuant
to its certificate of incorporation or bylaws or any agreement or instrument to
or by which the Company is a party or bound;
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(i) each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the Securities Act and no stop
order preventing or suspending the effectiveness of the Registration Statement
or any Rule 462(b) Registration Statement or the use of the Prospectus has been
issued under the Securities Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company or the Selling
Stockholder, are threatened by the Commission, and any request on the part of
the Commission for additional information has been complied with; any required
filing of the Prospectus and any supplement thereto pursuant to Rule 424(b) of
the Securities Act Regulations has been or will be made in the manner and within
the time period required by such Rule 424(b);
(j) the Preliminary Prospectus and the Registration Statement
comply and the Prospectus and any further amendments or supplements thereto
will, when they have become effective or are filed with the Commission, as the
case may be, comply in all material respects with the requirements of the
Securities Act, the Securities Act Regulations, the Securities Exchange Act of
1934, as amended (the "Exchange Act") and the rules and regulations of the
Commission promulgated thereunder; the Registration Statement did not, and any
amendment thereto will not, in each case as of the applicable effective date,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and the Preliminary Prospectus does not, and the Prospectus or any
amendment or supplement thereto will not, as of the applicable filing date and
at the Closing Time and on each Date of Delivery (if any), contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; when any related
Preliminary Prospectus was first filed with the Commission (whether filed as
part of the Registration Statement or any amendment thereto or pursuant to Rule
424(a) of the Securities Act Regulations), and when any amendment thereof or
supplement thereto was first filed with the Commission, such Preliminary
Prospectus, as amended or supplemented, complied in all material respects with
the applicable provisions of the Securities Act and the Securities Act
Regulations and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no warranty or
representation with respect to any statement contained in the Registration
Statement or the Prospectus in reliance upon and in conformity with the
information concerning the Underwriters and furnished in writing by or on behalf
of the Underwriters through the Representatives to the Company expressly for use
in the Registration Statement or the Prospectus (that information being limited
to that described in the last sentence of the first paragraph of Section 9(b)
hereof);
(k) all information furnished to the Underwriters by the
Company for use in the preparation of the documents to be filed with the
National Association of Securities Dealers, Inc. or state securities or blue sky
authorities is true and correct and does not contain an untrue statement of a
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material fact nor does it omit to state any material fact required to be stated
therein or necessary to make such information not misleading;
(l) the Preliminary Prospectus was and the Prospectus
delivered to the Underwriters for use in connection with this offering will be
identical to the versions of the Preliminary Prospectus and Prospectus created
to be transmitted to the Commission for filing via the Electronic Data Gathering
Analysis and Retrieval System ("XXXXX"), except to the extent permitted by
Regulation S-T;
(m) all legal or governmental proceedings, contracts, leases
or documents of a character required to be filed as exhibits to the Registration
Statement or to be summarized or described in the Prospectus have been so filed,
summarized or described as required; the summaries and descriptions in the
Registration Statement and the Prospectus of the contracts, leases and other
legal documents therein described present fairly the information required to be
shown; each agreement described in the Registration Statement and the Prospectus
or listed in the exhibits to the Registration Statement or incorporated by
reference is in full force and effect and is valid and enforceable by and
against the Company or the Subsidiary party thereto in accordance with its
terms;
(n) there are no actions, suits, proceedings, inquiries or
investigations pending or, to the knowledge of the Company or the Selling
Stockholder, threatened against the Company or its Subsidiary or any of their
respective officers and directors or to which the properties, assets or rights
of any such entity are subject, at law or in equity, before or by any federal,
state, local or foreign governmental or regulatory commission, board, body,
authority, arbitral panel or agency which, individually or in the aggregate,
could result in a judgment, decree, award or order having a material adverse
effect on the assets, business, operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and its Subsidiary taken as a
whole, affect the consummation of this Agreement or which is required to be
disclosed in the Registration Statement and the Prospectus that is not so
disclosed;
(o) the financial statements, including the notes thereto,
included in the Registration Statement and the Prospectus present fairly the
consolidated financial position of the entities to which such financial
statements relate (the "Covered Entities") as of the dates indicated and the
consolidated results of operations and changes in financial position and cash
flows of the Covered Entities for the periods specified; such financial
statements and related notes have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis during the periods
involved and in accordance with Regulation S-X promulgated by the Commission and
all adjustments necessary for a fair presentation of the results for such
periods have been made; the amounts in the Prospectus under the captions
"Prospectus Summary - Summary Financial Data" and "Selected Financial Data"
fairly present the information shown therein and have been compiled on a basis
consistent with the financial statements included in the Registration Statement
and the Prospectus; the unaudited pro forma
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financial information (including the related notes) included in the Prospectus
or any Preliminary Prospectus complies as to form in all material respects to
the applicable accounting requirements of the Securities Act and the Securities
Act Regulations, and management of the Company believes that the assumptions
underlying the pro forma adjustments are reasonable; such pro forma adjustments
have been properly applied to the historical amounts in the compilation of the
information and such information fairly presents with respect to the Company and
the Subsidiaries, the financial position, results of operations and other
information purported to be shown therein at the respective dates and for the
respective periods specified;
(p) PricewaterhouseCoopers LLP, whose reports on the
consolidated financial statements of the Company and its Subsidiary are filed
with the Commission as part of the Registration Statement and Prospectus, are
and were during the periods covered by their reports independent public
accountants as required by the Securities Act and the Securities Act
Regulations;
(q) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, and
except as may be otherwise stated in the Registration Statement or Prospectus,
there has not been (A) any material adverse change in the assets, business,
operations, earnings, prospects, properties or condition (financial or
otherwise), present or prospective, of the Company and its Subsidiary taken as a
whole, whether or not arising in the ordinary course of business, (B) any
transaction, which is material to the Company and its Subsidiary taken as a
whole, contemplated or entered into by the Company or any of its Subsidiary, (C)
any obligation, contingent or otherwise, directly or indirectly incurred by the
Company or its Subsidiary, which is material to the Company and its Subsidiary
taken as a whole, (D) any dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock, or any redemption,
purchase or other acquisition by the Company (or agreement to do any of the
foregoing) of any shares of its capital stock, (E) any issuance of any
securities of the Company or (F) any loss or interference with the Company or
its Subsidiary's assets, business or properties (whether owned or leased) from
fire, explosion, earthquake, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or any court or legislative or other
governmental action, order or decree which is material to the Company and its
Subsidiary taken as a whole;
(r) the Common Stock and the Shares conform in all material
respects to all statements in relation thereto contained in the Registration
Statement and the Prospectus;
(s) there are no persons with registration or other similar
rights to have any equity securities, including securities which are convertible
into or exchangeable for equity securities, registered pursuant to the
Registration Statement or otherwise registered by the Company under the
Securities Act;
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(t) the Shares have been duly authorized and, when issued and
duly delivered against payment therefor as contemplated by this Agreement, will
be validly issued, fully paid and nonassessable, free and clear of any pledge,
lien, encumbrance, security interest or other claim, and the issuance and sale
of the Shares by the Company is not subject to preemptive or other similar
rights arising by operation of law, under the certificate of incorporation or
bylaws of the Company, under any agreement to which the Company or any of its
Subsidiaries is a party or otherwise;
(u) the Company has not taken, and will not take, directly or
indirectly, any action which is designed to or which has constituted or which
might reasonably be expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Shares;
(v) neither the Company nor any of its officers, directors,
stockholders or affiliates (i) is required to register as a "broker" or "dealer"
in accordance with the provisions of the Exchange Act or the rules and
regulations thereunder, or (ii) directly, or indirectly through one or more
intermediaries, controls or has any other association with (within the meaning
of Article I of the By-laws of the National Association of Securities Dealers,
Inc. (the "NASD")) any member firm of the NASD, except as set forth in the
Registration Statement or otherwise disclosed in writing to the Representatives;
(w) the Company has not relied upon the Representatives or
legal counsel for the Representatives for any legal, tax or accounting advice in
connection with the offering and sale of the Shares;
(x) any certificate signed by any officer of the Company or
any Subsidiary delivered to the Representatives or to counsel for the
Underwriters pursuant to or in connection with this Agreement shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby;
(y) the form of certificate used to evidence the Common Stock
and the Shares complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the certificate of
incorporation and bylaws of the Company and the requirements of the Nasdaq
National Market;
(z) the Company and its Subsidiary has good and marketable
title in fee simple to all real property, if any, and good title to all personal
property owned by them, in each case free and clear of all liens, security
interests, pledges, charges, encumbrances, mortgages and defects, except such as
are disclosed in the Prospectus or such as do not materially and adversely
affect the value of such property and do not interfere with the use made or
proposed to be made of such property by the Company and the Subsidiary; and any
real property and buildings held under lease by the Company or the Subsidiary
are held under valid, existing and enforceable leases, free and clear of all
liens, security interests, pledges, charges, encumbrances, mortgages and
defects, with such exceptions as are disclosed in the Prospectus or are not
material and do not interfere
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with the use made or proposed to be made of such property and buildings by the
Company or the Subsidiary;
(aa) the Company and the Subsidiary owns or possesses adequate
and enforceable license or other rights to use all patents, trademarks, service
marks, trade names, copyrights, software and design licenses, trade secrets,
manufacturing processes, other intangible property rights (including
applications for any of the foregoing) and know-how (collectively "Intangibles")
necessary to entitle the Company and the Subsidiary to conduct its business as
described in the Prospectus, and neither the Company, nor the Subsidiary, has
received notice of infringement of or conflict with (and neither the Company nor
the Selling Stockholder knows of any such infringement of or conflict with)
asserted rights of others with respect to any Intangibles;
(bb) the books, records and accounts of the Company and its
Subsidiary accurately and fairly reflect, in reasonable detail, the transactions
in and dispositions of the assets and the results of operations of the Company
and the Subsidiary; the Company and its Subsidiary maintain a system of internal
accounting controls sufficient to provide reasonable assurance that: (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences;
(cc) each of the Company and the Subsidiary has filed on a
timely basis all necessary federal, state, local and foreign tax returns
required to be filed through the date hereof and have paid all taxes shown as
due thereon; no tax deficiency or proposed additional tax assessment has been
asserted against any such entity, nor does any such entity nor the Selling
Stockholder know of any tax deficiency or assessment which is likely to be
asserted against any such entity which if determined adversely to any, such
entity, could materially adversely affect the business, prospects, properties,
assets, results of operations or condition (financial or otherwise) of any such
entity, respectively; all tax liabilities are adequately provided for on the
respective books of such entities; and there are no tax audits or investigations
pending with respect to the Company or the Subsidiary;
(dd) each of the Company and its Subsidiary maintain insurance
(issued by insurers of recognized financial responsibility) of the types and in
the amounts generally deemed adequate for their respective businesses and
consistent with insurance coverage maintained by similar companies in similar
businesses, including, but not limited to, insurance covering real and personal
property owned or leased by the Company and its Subsidiary against theft,
damage, destruction, acts of vandalism and all other risks customarily insured
against, all of which insurance is in full force and effect; the Company and its
Subsidiary are in compliance with the terms of such insurance policies and
instruments in all material respects; neither the Company nor the Subsidiary
-12-
has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business
without a material increase in cost; neither the Company nor the Subsidiary has
been denied any insurance coverage which it has sought or for which it has
applied;
(ee) neither the Company nor its Subsidiary has violated, or
received notice of any violation or asserted claim with respect to, any
applicable environmental, health, safety or similar law, regulation, decision or
order of any governmental agency or body or court, domestic or foreign,
applicable to the business of the Company or its Subsidiary, nor any federal or
state law relating to discrimination in the hiring, promotion or pay of
employees, nor any applicable federal or state wages and hours law, nor any
provisions of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, nor any state law precluding the denial of
credit due to the neighborhood in which a property is situated, the violation of
any of which could have a material adverse effect on the business, operations,
earnings, prospects, properties or condition (financial or otherwise) of the
Company and its Subsidiary, taken as a whole; the Company and its Subsidiary
have received all permits, licenses or other approvals required of them under
applicable environmental laws to conduct their respective business, and are in
compliance with all terms and conditions thereof; to the Company's and the
Selling Stockholder's knowledge, no facts currently exist that will require the
Company or the Subsidiary to make future material capital expenditures to comply
with environmental laws; no property which is or has been owned, leased or
occupied by the Company or the Subsidiary has been designated as a Superfund
site pursuant to the Comprehensive Environmental Response, Compensation of
Liability Act of 1980, as amended ("CERCLA") or otherwise designated as a
contaminated site under applicable state or local law and neither the Company
nor any Subsidiary has been named as a "potentially responsible party" under the
CERCLA;
(ff) neither the Company nor its Subsidiary nor any officer,
director, agent or employee purporting to act on behalf of the Company or its
Subsidiary has at any time, directly or indirectly, (i) made any contributions
to any candidate for political office, or failed to disclose fully any such
contributions, in violation of law, (ii) made any payment to any state, federal
or foreign governmental officer or official, or other person charged with
similar public or quasi-public duties, other than payments required or allowed
by applicable law, (iii) made any payment outside the ordinary course of
business to any investment officer or loan broker or person charged with similar
duties of any entity to which the Company or its Subsidiary sells or from which
the Company or its Subsidiary buys loans or servicing arrangements for the
purpose of influencing such agent, officer, broker or person to buy loans or
servicing arrangements from or sell loans to the Company or its subsidiary, (iv)
engaged in any transactions, maintained any bank account or used any corporate
funds except for transactions, bank accounts and funds which have been and are
reflected in the normally maintained books and records of the Company and its
Subsidiaries, (v) violated any provision of the Foreign Corrupt Practices Act of
1977, as amended, or (vi) made any other unlawful payment;
-13-
(gg) except as otherwise disclosed in the Prospectus, there are
no material outstanding loans or advances or material guarantees of indebtedness
by the Company or its Subsidiary to or for the benefit of any of the officers or
directors of the Company or its Subsidiary or any of the members of the families
of any of them;
(hh) neither the Company nor its Subsidiary nor, to the
knowledge of the Company or the Selling Stockholder, any employee or agent of
the Company or its Subsidiary, has received or retained any funds in violation
of any law, rule or regulation or of a character required to be disclosed in the
Prospectus;
(ii) in connection with this offering, the Company has not
offered and will not offer its Common Stock or any other securities convertible
into or exchangeable or exercisable for Common stock in a manner in violation of
the Securities Act; and 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, except as specifically contemplated herein;
(jj) the Company has complied and will comply with all the
provisions of Florida Statutes, Section 517.075 (Chapter 92-198, Laws of
Florida); neither the Company nor its Subsidiary or affiliates does business
with the government of Cuba or with any person or affiliate located in Cuba;
(kk) the Company has not incurred any liability for any
finder's fees or similar payments in connection with the transactions herein
contemplated;
(ll) no relationship, direct or indirect, exists between or
among the Company or its Subsidiary on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of its
Subsidiaries on the other hand, which is required by the Securities Act and the
Securities Act Regulations to be described in the Registration Statement and the
Prospectus and which is not so described;
(mm) neither the Company nor the Subsidiary is and, after
giving effect to the offering and sale of the Shares and the application of the
net proceeds therefrom as described in the Prospectus, will be an "investment
company" or an entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(nn) there is no existing or, to the knowledge of the Company
or the Selling Stockholder, threatened labor dispute with the employees of the
Company or its Subsidiary, nor is the Company or the Selling Stockholder aware
of any existing or imminent labor disturbance by the employees of any of the
Company's or its Subsidiarie's principal suppliers or contractors or any
threatened or pending litigation between the Company or the Subsidiary and any
of its respective executive officers, in each case which are likely to have
individually or in the aggregate a material adverse effect on
-14-
assets, business, operations, earnings, prospects, properties or condition
(financial or otherwise) of the Company and its Subsidiary taken as a whole;
(oo) (i) The Company has complied in all material respects
with all statutory and regulatory requirements relating to export controls and
trade sanctions including, without limitation, the International Traffic in Arms
Regulations, the Export Administration Regulations, antiboycott provisions,
regulations administered by the Office of Foreign Assets Control, and provisions
under the Foreign Corrupt Practice Act. The Company has developed and
implemented an export control and trade sanctions compliance program which
includes corporate policies and procedures to ensure compliance with applicable
government export control and trade sanctions statutes, regulations, and other
obligations.
(ii) In connection with its export control and trade
sanctions matters, neither the Company nor the Selling Stockholder is aware of
any adverse or negative past performance evaluations or ratings by any
government agency, of any voluntary disclosures under the export control and
trade sanctions laws and regulations, of any enforcement actions or threats of
enforcement actions, or of any facts that could result in any adverse or
negative performance evaluation, except as would not have a material adverse
effect on the assets, business, operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and its Subsidiary taken as a
whole.
(iii) No government agency nor any other person has
notified the Company, either orally or in writing, of any actual or alleged
material violation or material breach of any statute, regulation,
representation, certification, disclosure obligation, licensing obligation or
other export authorization or provision with respect to the Company.
(iv) The Company has not undergone and is not
undergoing any audit, review, inspection, investigation, survey or examination
of records relating to the export activity of the Company, and neither the
Company nor the Selling Stockholder knows nor has reason to know of any basis
for any such audit, review, inspection, investigation, survey or examination of
records. No audit, review, inspection, investigation, survey or examination of
records has revealed any fact, occurrence or practice which could have a
material adverse effect on the assets, business, operations, earnings,
prospects, properties or condition (financial or otherwise) of the Company and
its Subsidiaries taken as a whole.
(v) The Company has not been and is not now under any
administrative, civil or criminal investigation or indictment involving alleged
false statements, false claims or other improprieties relating to the export
activity of the Company. Neither the Company nor the Selling Stockholder knows
or has reason to know of any basis for any such investigation or indictment.
-15-
(vi) The Company has not been and is not now a party to
any administrative or civil litigation involving alleged false statements, false
claims or other improprieties relating to export activity. Neither the Company
nor the Selling Stockholder knows or has reason to know of any basis for any
such proceeding.
(pp) For purposes of this Agreement, (A) "U.S. Government"
includes any agency, department, division, subdivision or office of the federal
government of the United States, including the officials, employees and agents
thereof, (B) "Contract" includes any agreement, Prime Contract, subcontract,
basic ordering agreement, letter contract, purchase order or delivery order of
any kind, whether written or oral, including all amendments, modifications and
options thereunder or relating thereto, (C) "Government Contract" means any
Prime Contract and any subcontract with a prime contractor or higher-tier
subcontractor under a Prime Contract, and (D) "Prime Contract" means any prime
Contract with the U.S. Government.
(i) There are no Government Contracts which, to the
knowledge of the Company or the Selling Stockholder, are currently experiencing
or are likely to experience material cost, schedule, technical or quality
problems that could result in claims against the Company (or its successors in
interest) by the U.S. Government, a prime contractor or a higher-tier
subcontractor that would have a material adverse effect on the assets, business,
operations, earnings, prospects, properties or condition (financial or
otherwise) of the Company and its Subsidiary taken as a whole.
(ii) All of the Company's Government Contracts that
are material to the assets, business, operations, earnings, prospects,
properties or condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole were legally awarded, are binding on the parties
thereto, and are in full force and effect. Such Government Contracts (or, where
applicable, the Prime Contracts under which such Government Contracts were
awarded) are not currently the subject of bid or award protest proceedings, and,
to the knowledge of the Company or the Selling Stockholder, such Government
Contracts (or, where applicable, the Prime Contracts under which such Government
Contracts were awarded) are not reasonably likely to become the subject of bid
or award protest proceedings that could have a material adverse effect on the
assets, business, operations, earnings, prospects, properties or condition
(financial or otherwise) of the Company and its Subsidiary taken as a whole.
(iii) Except as could not have a material adverse effect
on the assets, business, operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and its Subsidiaries taken as
a whole, the Company has complied in all material respects with all applicable
statutory and regulatory requirements, including, but not limited to, the Armed
Services Procurement Act, the Federal Procurement and Administrative Services
Act, the Federal Acquisition Regulation ("FAR"), the FAR cost principles and the
Cost Accounting Standards, where and as applicable to each of the Company's
Government Contracts and each of the Company's quotations, bids and proposals
for Government Contracts, and to the
-16-
knowledge of the Company or each Selling Stockholder, there are no actual or
alleged violations or breaches of any statute, regulation, representation,
certification, disclosure obligation, or contract term with respect thereto.
(iv) Except as could not have a material adverse effect
on the assets, business, operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and its Subsidiary taken as a
whole, all facts set forth in or acknowledged by any representations or
certifications made or submitted by or on behalf of the Company in connection
with each of the Company's Government Contracts and each of the Company's
quotations, bids and proposals for Government Contracts were current, accurate
and complete in all material respects as of the date of submission.
(v) Except as could not have a material adverse effect
on the assets, business, operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and its Subsidiary taken as a
whole, in connection with its Government Contracts, to the knowledge of the
Company and the Selling Stockholder, there are no material adverse or negative
government past performance evaluations or ratings that could affect the
evaluation of the Company's (or its successors) bids or proposals for future
Government Contracts, and to the knowledge of the Company and the Selling
Stockholder, no facts currently exist that are reasonably likely to give rise to
negative government past performance evaluations in the future.
(vi) Except as could not have a material adverse effect
on the assets, business, operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and its Subsidiary taken as a
whole, to the knowledge of the Company and each Selling Stockholder, no facts
exist which could give rise to a claim for price adjustment under the False
Claims Act, the Truth in Negotiations Act or to any other request for a
reduction in the price of any of the Company's Government Contracts.
(vii) Except as could not have a material adverse effect
on the assets, business, operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and its Subsidiary taken as a
whole, the Company has received no show cause, cure, deficiency, default or
similar notice relating to its outstanding Government Contracts, (ii) none of
the Company's Government Contracts has been terminated for default, (iii) to the
knowledge of the Company and the Selling Stockholder, no facts exist that are
reasonably likely to give rise to a termination for default of any of the
Company's Government Contracts, and (iv) the Company has received no notice,
written or otherwise, terminating any of the Company's Government Contracts for
convenience or indicating an intent to terminate any of the Company's Government
Contracts for convenience. Except as could not have a material adverse effect on
the assets, business, operations, earnings, prospects, properties or condition
(financial or otherwise) of the Company and its Subsidiary taken as a whole,
there are no material outstanding claims or disputes relating to the Company's
Government Contracts and involving either the U.S. Government, any prime
contractor, any higher-tier subcontractor or any third party. To the knowledge
of the Company and the Selling
-17-
Stockholder, there exists no facts or allegations that could give rise to such a
claim or dispute in the future. No negative determination of responsibility has
ever been issued against the Company with respect to any quotation, bid or
proposal for a Government Contract. The Company has not been and is not now
suspended, debarred, or proposed for suspension or debarment from government
contracting. To the knowledge of the Company and the Selling Stockholder, no
facts exist which could cause or give rise to such suspension or debarment.
(viii) Except as could not have a material adverse effect
on the assets, business, operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and its Subsidiary taken as a
whole, the Company has not undergone and is not undergoing any audit, review,
inspection, investigation, survey or examination of records relating to the
Company's Government Contracts, and to the knowledge of the Company and the
Selling Stockholder there is no basis for any such audit, review, inspection,
investigation, survey or examination. No audit, review, inspection,
investigation, survey or examination of records has revealed any fact,
occurrence or practice which could have a material adverse effect on the assets,
business, operations, earnings, prospects, properties or condition (financial or
otherwise) of the Company and its Subsidiary taken as a whole.
(ix) Except as could not have a material adverse effect
on the assets, business, operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and its Subsidiary taken as a
whole, neither the U.S. Government nor any prime contractor or higher-tier
subcontractor under a Government Contract has questioned or disallowed any costs
claimed by the Company under the Company's outstanding Government Contracts. To
the knowledge of the Company and the Selling Stockholder, there is no fact or
occurrence that could be a basis for disallowing any such costs.
(x) The Company has complied in all material respects
with all applicable requirements under each of the Company's Government
Contracts relating to the safeguarding of and access to classified information,
and except as set forth on Schedule 3.17(g), to the knowledge of the Company and
the Selling Stockholder, no facts currently exist which are reasonable likely to
give rise to the revocation of the Company's security clearances.
II. The Selling Stockholder represents and warrants to each
Underwriter that:
(a) the Selling Stockholder has full power and authority to
enter into and perform this Agreement; all authorizations, consents and
approvals necessary for the execution and delivery by the Selling Stockholder of
this Agreement and for the performance of the obligations of the Selling
Stockholder hereunder (including the sale, transfer and delivery of the Shares
to be sold by the Selling Stockholder) have been given; this Agreement has been
duly authorized, executed and delivered by the Selling Stockholder and
constitutes a valid and binding agreement of the Selling Stockholder and
-18-
is enforceable against the Selling Stockholder in accordance with the terms
thereof and hereof, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, and by general principles of equity, and except to the extent that
the indemnification and contribution provisions of Section 9 hereof may be
limited by federal or state securities laws and public policy considerations in
respect thereof;
(b) the Selling Stockholder now has, and at the Closing Time
will have, (i) good and marketable title to the Shares to be sold by the Selling
Stockholder hereunder, free and clear of all liens, security interests,
encumbrances and claims whatsoever, and (ii) full legal right and power, and all
authorizations and approvals required by law, to sell, assign, transfer and
deliver such Shares to the Underwriters hereunder and to make the
representations, warranties and agreements made by the Selling Stockholder
herein; upon the delivery of and payment for such Shares hereunder, the Selling
Stockholder will deliver good and marketable title thereto, free and clear of
any pledge lien, encumbrance, security interest or other claim;
(c) at the Closing Time, all stock transfer or other taxes
(other than income taxes) which are required to be paid in connection with the
sale and transfer of the Shares to be sold by the Selling Stockholder to the
Underwriters hereunder will have been fully paid or provided for by the Selling
Stockholder and all laws imposing such taxes will have been fully complied with;
(d) the execution and delivery by the Selling Stockholder of
this Agreement and the performance by the Selling Stockholder of his obligations
under this Agreement and the consummation of the transactions contemplated
hereby will not conflict with, or result in any breach of, or constitute a
default under (nor constitute any event which with notice, lapse of time, or
both would constitute a breach of, or default under), any provision of any
license, indenture, mortgage, deed of trust, loan or credit agreement or other
agreement or instrument to which the Selling Stockholder is a party or by which
he or his properties may be bound or affected, or under any federal, state,
local or foreign law, regulation or rule or any decree, judgment, injunction or
order applicable to the Selling Stockholder; or result in the creation or
imposition of any lien, charge, claim or encumbrance upon any property or asset
of the Selling Stockholder;
(e) no approval, authorization, consent or order of or filing
or registration with any federal, state or local governmental or regulatory
commission, board, body, authority or agency is required in connection with the
Selling Stockholder's execution, delivery and performance of this Agreement, its
consummation of the transaction contemplated hereby, and its sale and delivery
of the Shares to be sold by it, other than (i) such as have been obtained, or
will have been obtained at the Closing Time under the Securities Act, (ii) such
approvals as have been obtained in connection with the approval of the quotation
of the Shares on the Nasdaq National Market and (iii) any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Underwriters;
-19-
(f) all information with respect to the Selling Stockholder
contained in the Registration Statement and the Prospectus (as amended or
supplemented, if the Company shall have filed with the Commission any amendment
or supplement thereto) complied and will comply at the Closing Time and each
relevant Date of Delivery in all material respects with all applicable
provisions of the Securities Act and the Securities Act Regulations, contains
and will contain at the Closing Time and each relevant Date of Delivery all
statements of material fact required to be stated therein in accordance with the
Securities Act and the Securities Act Regulations, and does not and will not at
the Closing Time and each relevant Date of Delivery contain an untrue statement
of a material fact relating to the Selling Stockholder or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein relating to the Selling Stockholder not misleading; all
information furnished in writing to the Company or the Underwriters by the
Selling Stockholder specifically for use in the preparation of the Registration
Statement and the Prospectus and other documents to be filed with the National
Association of Securities Dealers, Inc. or state securities or blue sky
authorities is true and correct and does not contain an untrue statement of a
material fact nor does it omit to state any material fact required to be stated
therein or necessary to make such information not misleading;
(g) the Selling Stockholder has reviewed and is familiar with
the Registration Statement and the Prospectus and is not prompted to sell shares
of Common Stock by any information concerning the Company which is not set forth
in the Registration Statement or the Prospectus; and
(h) the Selling Stockholder has not relied upon the
Representatives or legal counsel for the Representatives for any legal, tax or
accounting advice in connection with the offering and sale of the Shares.
4. Certain Covenants:
I. The Company hereby agrees with each Underwriter:
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as the Representatives may designate
and to maintain such qualifications in effect as long as required for the
distribution of the Shares, provided that the Company shall not be required to
qualify as a foreign corporation or to execute a general consent to the service
of process under the laws of any such state (except service of process with
respect to the offering and sale of the Shares);
(b) to prepare the Prospectus in a form approved by the
Underwriters and file such Prospectus with the Commission pursuant to Rule
424(b) not later than 10:00 a.m. (New York City time), on the day following the
execution and delivery of this Agreement or, if applicable, such earlier time as
may be required by Rule 430A(a)(3) under the Securities Act, and to furnish
promptly (and with respect to the initial delivery
-20-
of such Prospectus, not later than 10:00 a.m. (New York City time) on the day
following the execution and delivery of this Agreement) to the Underwriters as
many copies of the Prospectus (or of the Prospectus as amended or supplemented
if the Company shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriters may reasonably
request for the purposes contemplated by the Securities Act Regulations, which
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the version created to be transmitted to the
Commission for filing via XXXXX, except to the extent permitted by Regulation
S-T;
(c) to use its best efforts to cause the Registration
Statement, if not effective at the time of execution of this Agreement, and any
amendments thereto, to become effective as promptly as possible, and to advise
the Representatives promptly and (if requested by the Representative) to confirm
such advice in writing, when the Registration Statement has become effective and
when any post-effective amendment thereto becomes effective under the Securities
Act Regulations;
(d) to advise the Representatives immediately, confirming such
advice in writing, of (i) the receipt of any comments from, or any request by,
the Commission for amendments or supplements to the Registration Statement or
Prospectus or for additional information with respect thereto, or (ii) the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, or of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes and, if
the Commission or any other government agency or authority should issue any such
order, to make every reasonable effort to obtain the lifting or removal of such
order as soon as possible; to advise the Representatives promptly, and to
furnish the Representatives with a copy for its review prior to filing, of any
proposal to amend or supplement the Registration Statement or Prospectus and to
file no such amendment or supplement to which the Representatives shall
reasonably object in writing;
(e) to furnish to the Underwriters for a period of five years
from the date of this Agreement (i) as soon as available, copies of all annual,
quarterly and current reports or other communications supplied to holders of
shares of Common Stock, (ii) as soon as practicable after the filing thereof,
copies of all reports filed by the Company with the Commission, the NASD or any
securities exchange and (iii) such other information as the Underwriters may
reasonably request regarding the Company and its Subsidiaries;
(f) to advise the Underwriters promptly of the happening of
any event known to the Company within the time during which a Prospectus
relating to the Shares is required to be delivered under the Securities Act
Regulations which, in the judgment of the Company, would require the making of
any change in the Prospectus then being used so that the Prospectus would not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
-21-
therein, in the light of the circumstances under which they were made, not
misleading, and, during such time, to prepare and furnish, at the Company's
expense, to the Underwriters promptly such amendments or supplements to such
Prospectus as may be necessary to reflect any such change and to furnish to the
Underwriters a copy of such proposed amendment or supplement before filing any
such amendment or supplement with the Commission and to file no such amendment
or supplement to which the Representatives shall reasonably object in writing;
(g) to furnish promptly to each Representative and counsel for
the Underwriters, without charge, a signed copy of the Registration Statement,
as initially filed with the Commission, and of all amendments or supplements
thereto (including all exhibits filed therewith or incorporated by reference
therein) and such number of conformed copies of the foregoing as the
Representatives may reasonably request, and, so long as delivery of a prospectus
by an Underwriter or dealer may be required by the Securities Act or the
Securities Act Regulations, as many copies of any Preliminary Prospectus and the
Prospectus and any amendments thereof or supplements thereto as the
Representatives reasonably request;
(h) to furnish to each Representative, not less than two
business days before filing with the Commission subsequent to the effective date
of the Prospectus and during the period referred to in paragraph (f) above, a
copy of any document proposed to be filed with the Commission pursuant to
Section 13, 14, or 15(d) of the Exchange Act;
(i) to apply the net proceeds of the sale of the Shares by the
Company in accordance with its statements under the caption "Use of Proceeds" in
the Prospectus;
(j) to make generally available to its security holders and to
the Representatives as soon as practicable, but in any event not later than the
end of the fiscal quarter first occurring after the first anniversary of the
effective date of the Registration Statement an earnings statement complying
with the provisions of Section 11(a) of the Securities Act (in form, at the
option of the Company, complying with the provisions of Rule 158 of the
Securities Act Regulations,) covering a period of 12 months beginning after the
effective date of the Registration Statement;
(k) to use its best efforts to effect and maintain the
quotation of the Shares on the Nasdaq National Market and to make all filings
required under applicable securities laws (including any required registration
under the Exchange Act) and with the Nasdaq National Market of companies that
have securities that are traded in the over-the-counter market and quotations
for which are reported by the Nasdaq National Market and to take all other
action necessary to ensure the listing of the Shares and the other Common Stock
of the Company on the Nasdaq National Market;
(l) to engage and maintain, at its expense, a registrar and
transfer agent for the Shares;
-22-
(m) to refrain during a period of 90 days from the date of the
Prospectus, without the prior written consent of the Representative, from (i)
offering, pledging, selling, contracting to sell, selling any option or contract
to purchase, purchasing any option or contract to sell, granting any option for
the sale of, or otherwise disposing of or transferring, directly or indirectly,
any equity security of the Company or any securities convertible into or
exercisable or exchangeable for equity securities of the Company, or filing any
registration statement under the Securities Act with respect to any of the
foregoing, or (ii) entering into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of equity securities of the Company, whether
any such swap or transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold
hereunder or (B) any shares of Common Stock issued by the Company upon the
exercise of an option outstanding on the date hereof and referred to in the
Prospectus.
(n) to not itself and to use its best efforts to cause its
officers, directors and affiliates not to, (i) take, directly or indirectly
prior to termination of the underwriting syndicate contemplated by this
Agreement, any action designed to stabilize or manipulate the price of any
security of the Company, or which may cause or result in, or which might in the
future reasonably be expected to cause or result in, the stabilization or
manipulation of the price of any security of the Company, to facilitate the sale
or resale of any of the Shares, (ii) sell, bid for, purchase or pay anyone any
compensation for soliciting purchases of the Shares or (iii) pay or agree to pay
to any person any compensation for soliciting any order to purchase any other
securities of the Company;
(o) to file timely and accurate reports in accordance with the
provisions of Florida Statutes Section 517.075, or any successor provision, and
any regulation promulgated thereunder, if at any time after the effective date
of the Registration Statement, the Company or any of its affiliates is engaging
in business with the government of Cuba or any person or affiliate located in
Cuba;
(p) upon request of any Underwriter, to furnish, or cause to
be furnished, to such Underwriter an electronic version of the Company's
trademarks, service marks and corporate logo for use on the website, if any,
operated by such Underwriter for the purpose of facilitating the on-line
offering of the Shares (the "License"); provided, however, that the License
shall be used solely for the purpose described above, is granted without any fee
and may not be assigned or transferred;
(q) that the provisions of the letter agreement dated
April 3, 2002 between the Company and Friedman, Billings, Xxxxxx & Co., Inc.
(the "Engagement Letter") shall survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby; and
-23-
(r) if at any time during the 30-day period after the
Registration Statement becomes effective, any rumor, publication or event
relating to or affecting the Company shall occur as a result of which in the
reasonable opinion of the Representatives the market price of the Common Stock
has been or is likely to be materially affected (regardless of whether such
rumor, publication or event necessitates a supplement to or amendment of the
Prospectus) and after written notice from the Representatives advising the
Company to the effect set forth above, to forthwith prepare, consult with the
Representatives concerning the substance of, and disseminate a press release or
other public statement, reasonably satisfactory to the Representatives,
responding to or commenting on such rumor, publication or event.
II. The Selling Stockholder hereby agrees with each
Underwriter to deliver to the Representatives prior to the Closing Time a
properly completed and executed United States Treasury Department Form W-9.
5. Payment of Expenses:
(a) The Company agrees to pay all costs and expenses incident
to the performance of its obligations under this Agreement, whether or not the
transactions contemplated hereunder are consummated or this Agreement is
terminated, including expenses, fees and taxes in connection with (i) the
preparation and filing of the Registration Statement, all exhibits thereto, each
Preliminary Prospectus, the Prospectus, and any amendments or supplements
thereto, and the printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and shipment) as may be
reasonably requested, (ii) the preparation, issuance and delivery of the
certificates for the Shares to the Underwriters, including any stock or other
transfer taxes or duties payable upon the sale and delivery of the Shares to the
Underwriters, (iii) the printing of this Agreement and any dealer agreements and
furnishing of copies of each to the Underwriters and to dealers (including costs
of mailing and shipment), (iv) the registration or qualification of the Shares
for offering and sale under state laws that the Company and the Representatives
have mutually agreed are appropriate and the determination of their eligibility
for investment under state law as aforesaid (including the legal fees and filing
fees and other disbursements of counsel for the Underwriters) and the
preparation, printing and furnishing of copies of any blue sky surveys or legal
investment surveys to the Underwriters and to dealers, (v) filing for review of
the public offering of the Shares by the NASD (including the legal fees and
filing fees and other disbursements of counsel for the Underwriters relating
thereto), (vi) the fees and expenses of any transfer agent or registrar for the
Shares and miscellaneous expenses referred to in the Registration Statement,
(vii) the fees and expenses incurred in connection with the listing of the
Shares on the Nasdaq National Market, (viii) making road show presentations with
respect to the offering of the Shares, (ix) preparing and distributing bound
volumes of transaction documents for the Representatives and its legal counsel
and (x) the performance of the Company's other obligations hereunder. Upon the
request of the Representatives, the Company will provide funds in advance for
filing fees.
-24-
(b) In accordance with the Engagement Letter, the Company
agrees to reimburse the Representatives for their reasonable out-of-pocket
expenses in connection with the performance of their activities under this
Agreement, including, but not limited to, costs such as printing, facsimile,
courier service, direct computer expenses, accommodations and travel, and fees
and expenses of the Underwriters' outside legal counsel and any other advisors,
accountants, appraisers, etc. up to $75,000 (other than the fees and expenses of
counsel with respect to state securities or blue sky laws and obtaining the
filing for review of the public offering of the Shares by the NASD, all of which
shall be reimbursed by the Company pursuant to the provisions of subsection (a)
above).
(c) The Selling Stockholders and the Company, jointly and
severally, agree with each Underwriter to pay (directly or by reimbursement) all
fees and expenses incident to the performance of their obligations under this
Agreement which are otherwise specifically provided for herein, including, but
not limited to, (i) fees and expenses of counsel and other advisors for the
Selling Stockholder and (ii) expenses and taxes incident to the sale and
delivery of the Shares to be sold by the Selling Stockholder to the Underwriters
hereunder.
6. Conditions of the Underwriters' Obligations: The obligations of the
Underwriters hereunder to purchase Shares at the Closing Time or on the Date of
Delivery, as applicable, are several and not joint, and are subject to the
accuracy of the representations and warranties on the part of the Company and
the Selling Stockholder on the date hereof and at the Closing Time and on each
Date of Delivery, as applicable, the performance by the Company and the Selling
Stockholder of their respective obligations hereunder in all material respects
and to the satisfaction of the following further conditions at the Closing Time
or on the Date of Delivery, as applicable:
(a) The Company shall furnish to the Underwriters at the
Closing Time and on each Date of Delivery an opinion of Xxxxxxx, Xxxxx &
Xxxxxxx, LLP, counsel for the Company and its Subsidiaries, addressed to the
Underwriters and dated the Closing Time and each Date of Delivery and in form
and substance satisfactory to Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the
Underwriters, stating that:
(i) ST Production Systems, Inc. is the only active
subsidiary of the Company; the Company and its Subsidiary each have been duly
incorporated and is validly existing as a corporation in good standing under the
laws of its respective jurisdiction of incorporation with full corporate power
and authority to own, lease, license and operate its respective assets and
properties and to conduct its respective business as described in the
Registration Statement and Prospectus and, in the case of the Company, to
execute and deliver this Agreement and to consummate the transactions described
in this Agreement;
(ii) each of the Company and its Subsidiary are duly
qualified or licensed to do business as a foreign corporation by each
jurisdiction in which the
-25-
nature of the business conducted by it or the location of the assets or
properties owned, leased, licensed or operated by it requires such qualification
or license and in which the failure, individually or in the aggregate, to be so
licensed could have a material adverse effect on the assets, business,
operations, earnings, prospects, properties or condition (financial or
otherwise) of the Company and its Subsidiary taken as a whole, and each of the
Company and its Subsidiary are duly qualified, and are in good standing, in each
jurisdiction in which they own or lease real property or maintain an office and
in which such qualification is necessary except where the failure to be so
qualified and in good standing would not have a material adverse effect on the
assets, business, operations, earnings, prospects, properties or condition
(financial or otherwise) of the Company and its Subsidiary taken as a whole;
except as disclosed in the Prospectus, no Subsidiary is prohibited or
restricted, directly or indirectly, from paying dividends to the Company, or
from making any other distribution with respect to such Subsidiary's capital
stock or from repaying to the Company or any other Subsidiary, any amounts which
may from time to time become due under any loans or advances to such Subsidiary
from the Company or such other Subsidiary, or from transferring any such
Subsidiary's property or assets to the Company or to any other Subsidiary; other
than as disclosed in the Prospectus, the Company does not control or own,
directly or indirectly, any capital stock or other equity securities of any
other corporation or any ownership interest in any partnership, joint venture or
other association;
(iii) to such counsel's knowledge, the Company and its
Subsidiary are in compliance in all material respects with all applicable laws,
orders, rules, regulations and orders, including those relating to transactions
with affiliates;
(iv) to such counsel's knowledge, neither the Company
nor its Subsidiary is in breach or violation of, or in default under (nor has
any event occurred which with notice, lapse of time, or both would constitute a
breach of, or default under), its respective articles of incorporation or
charter or bylaws, any license, indenture, mortgage, deed of trust, loan or
credit agreement or any other agreement or instrument to which the Company or
its Subsidiary is a party or by which any of them or their respective properties
may be bound or affected or under any law, regulation or rule or any decree,
judgment or order applicable to the Company or its Subsidiary, except such
breaches or defaults which would not have a material adverse effect on the
assets, business, operations, earnings, prospects, properties or condition
(financial or otherwise) of the Company and its Subsidiary taken as a whole;
(v) the execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated by this Agreement do not and will not (A) give rise to a right to
terminate or accelerate the due date of any payment due under, or conflict with,
or result in any breach or violation of, or constitute a default under (nor
constitute any event which with notice, lapse of time, or both would constitute
a breach of or default under), or require any consent or waiver, except for such
consents or waivers which have been obtained and are in full force and effect,
under, (i) any provisions of the certificate of incorporation, charter
-26-
or bylaws of the Company or the Subsidiary, (ii) any provision of any franchise,
permit, license, indenture, mortgage, deed of trust, loan, credit or other
agreement or instrument to which the Company or the Subsidiary is a party or by
which any of them or their respective properties or assets may be bound or
affected, (iii) any law or regulation binding upon or applicable to the Company
or the Subsidiary or any of their respective properties or assets, or (iv) any
decree, judgment or order known to such counsel to be applicable to the Company
or the Subsidiary; or (B) result in the creation or imposition of any lien,
charge, claim or encumbrance upon any property or assets of the Company or its
Subsidiary;
(vi) all necessary corporate action has been duly and
validly taken by the Company to authorize the execution, delivery and
performance of this Agreement and the issuance and sale of the Shares by the
Company; this Agreement has been duly and validly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement of the
Company enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, and by general principles of equity, and except
that enforceability of the indemnification and contribution provisions set forth
in Section 9 of this Agreement may be limited by the federal or state securities
laws of the United States or public policy underlying such laws;
(vii) no approval, authorization, consent, license,
permit, certificate or order of or filing by or with any federal or state
governmental or regulatory commission, board, body, authority or agency is
required in connection with the execution, delivery and performance of this
Agreement, the consummation of the transaction contemplated hereby, and the sale
and delivery of the Shares by the Company as contemplated hereby, other than
such as have been obtained or made and are in full force and effect under the
Securities Act and the Securities Act Regulations and such approvals as have
been obtained and are in full force and effect in connection with the approval
of the quotation of the Shares on the Nasdaq National Market, and except that
such counsel need express no opinion as to any necessary qualification under the
state securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters or any approval of the underwriting
terms and arrangements by the National Association of Securities Dealers, Inc.;
(viii) to such counsel's knowledge, each of the Company
and its Subsidiary has all necessary licenses, authorizations, consents,
permits, certificates and approvals and has made all necessary filings required
under any federal, state or local law, regulation or rule, and has obtained all
necessary licenses, authorizations, consents, permits, certificates and
approvals from other persons, required to own, lease and license their
respective assets and properties and conduct their respective businesses, as
described in the Prospectus, all of which are valid and in full force and
effect; to such counsel's knowledge neither the Company nor its Subsidiary is in
violation of, in default under, or has received any notice regarding a possible
violation, default or revocation of any such license, authorization, consent,
permit, certificate or approval or any federal, state, local
-27-
or foreign law, regulation or decree, order or judgment applicable to the
Company or its Subsidiary;
(ix) the Company has an authorized capitalization as
set forth in the Prospectus under the caption "Capitalization"; the outstanding
shares of capital stock of the Company and its Subsidiary have been duly and
validly authorized and issued and are fully paid and non-assessable and none of
them was issued in violation of any preemptive or other similar right, and all
of the outstanding shares of capital stock of the Subsidiaries are directly or
indirectly owned of record and beneficially by the Company; except as disclosed
in the Prospectus, there are no outstanding (i) securities or obligations of the
Company or its Subsidiary convertible into or exchangeable for any capital stock
of the Company or the Subsidiary, (ii) warrants, rights or options to subscribe
for or purchase from the Company or the Subsidiary any such capital stock or any
such convertible or exchangeable securities or obligations, or (iii)
obligations, commitments, plans or arrangements of the Company or the Subsidiary
to issue any shares of capital stock, any such convertible or exchangeable
securities or obligation, or any such warrants, rights or options; there are no
statutory preemptive or other similar rights to subscribe for or to purchase or
acquire any shares of capital stock of the Company or any such rights pursuant
to its certificate of incorporation or bylaws or any agreement or instrument to
or by which the Company or its Subsidiary is a party or bound or, to such
counsel's knowledge, otherwise;
(x) the Shares have been duly authorized and when the
Shares have been issued and duly delivered against payment therefor as
contemplated by this Agreement, the Shares will be validly issued, fully paid
and nonassessable, and the Underwriters will acquire the good and marketable
title to the Shares, free and clear of any pledge, lien, encumbrance, security
interest, or other claim;
(xi) the issuance and sale of the Shares by the Company
is not subject to preemptive or other similar rights arising by operation of
law, under the certificate of incorporation, charter or bylaws of the Company,
or under any agreement to which the Company or any of its Subsidiaries is a
party or, to such counsel's knowledge, otherwise;
(xii) to such counsel's knowledge, there are no persons
with registration or other similar rights to have any equity securities,
including securities which are convertible into or exchangeable for equity
securities, registered pursuant to the Registration Statement or otherwise
registered by the Company under the Securities Act;
(xiii) the Common Stock and the Shares conform in all
material respects to the descriptions thereof contained in the Registration
Statement and Prospectus; the capital stock of the Company conforms in all
material respects to the description thereof contained in the Prospectus under
the caption "Description of Capital Stock; Certificate of Incorporation and
Bylaws";
-28-
(xiv) the form of certificate used to evidence the
Common Stock and the Shares complies in all material respects with all
applicable statutory requirements, with any applicable requirements of the
articles of incorporation and bylaws of the Company and the requirements of the
Nasdaq National Market;
(xv) the Registration Statement has become effective
under the Securities Act and no stop order preventing or suspending the
effectiveness of the Registration Statement or the use of the Prospectus has
been issued and, to such counsel's knowledge, no proceedings with respect
thereto have been commenced or threatened; any required filing of the Prospectus
and any supplement thereto pursuant to Rule 424(b) under the Securities Act has
been made in the manner and within the time period required by such Rule 424(b);
(xvi) the Registration Statement, all Preliminary
Prospectuses and the Prospectus and each amendment or supplement thereto (except
as to the financial statements and other financial data contained therein, as to
which such counsel need express no opinion) complied as to form in all material
respects with the requirements of the Securities Act and the Securities Act
Regulations; the documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus (except as to the
financial statements and other financial data contained therein, as to which
such counsel need express no opinion), at the time they were filed with the
Commission, complied as to form in all material respects with the requirements
of the Exchange Act and the rules and regulations promulgated thereunder;
(xvii) the statements under the captions
"Capitalization," "Management's Discussion and Analysis of Financial Condition
and Results of Operations - Liquidity and Capital Resources," "Business -
Government Contracts," "Management - Stock Option Plans," "Description of
Capital Stock; Certificate of Incorporation and Bylaws," and "Shares Eligible
for Future Sale," in the Registration Statement and the Prospectus, insofar as
such statements constitute a summary of the documents or legal matters referred
to therein, constitute fair summaries thereof in all material respects and
accurately present the information called for with respect to such documents or
matters;
(xviii) to such counsel's knowledge, there are no actions,
suits or proceedings, inquiries, or investigations pending or threatened against
the Company or its Subsidiary or any of their respective officers and directors
or to which the properties, assets or rights of any such entity are subject, at
law or in equity, before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority, arbitral panel or agency which
are required to be described in the Prospectus but are not so described;
(xix) to such counsel's knowledge, there are no
contracts, leases or documents of a character which are required to be filed as
exhibits to the Registration Statement or required to be described or summarized
in the Prospectus which have not
-29-
been so filed, summarized or described, and all such summaries and descriptions
fairly and accurately set forth the material provisions of such contracts and
documents required to be shown;
(xx) to such counsel's knowledge, the Company and the
Subsidiary owns or possesses adequate and enforceable license or other rights to
use all patents, trademarks, service marks, trade names, copyrights, software
and design licenses, trade secrets, manufacturing processes, other intangible
property rights (including applications for any of the foregoing) and know-how
(collectively "Intangibles") necessary to entitle the Company and the Subsidiary
to conduct its business as described in the Prospectus, and neither the Company,
nor the Subsidiary, has received notice of infringement of or conflict with (and
knows of no such infringement of or conflict with) asserted rights of others
with respect to any Intangibles;
(xxi) to such counsel's knowledge, each of the Company,
and the Subsidiaries has filed on a timely basis all necessary federal, state,
local and foreign tax returns required to be filed through the date hereof and
have paid all taxes shown as due thereon; no tax deficiency or assessment has
been asserted against any such entity, nor does any such entity know of any tax
deficiency which is likely to be asserted against any such entity which if
determined adversely to any such entity, could materially adversely affect the
business, prospects, properties, assets, results of operations or condition
(financial or otherwise) of any such entity, respectively; and to such counsel's
knowledge, there are no tax audits or investigations pending with respect to the
Company or any Subsidiary;
(xxii) neither the Company nor any of the Subsidiaries
is or, after giving effect to the offering and sale of the Shares and the
application of the net proceeds therefrom as described in the Prospectus, will
be an "investment company" or an entity "controlled by" an "investment company",
as such terms are defined in the Investment Company Act;
(xxiii) the Company and each Subsidiary has good and
marketable title in fee simple to all real property, if any, and good title to
all personal property owned by them, in each case free and clear of all liens,
security interests, pledges, charges, encumbrances, mortgages and defects,
except such as are disclosed in the Prospectus or such as do not materially and
adversely affect the value of such property and do not interfere with the use
made or proposed to be made of such property by the Company and the Subsidiary;
and any real property and buildings held under lease by the Company or the
Subsidiary are held under valid, existing and enforceable leases, free and clear
of all liens, security interests, pledges, charges, encumbrances, mortgages and
defects, with such exceptions as are disclosed in the Prospectus or are not
material and do not interfere with the use made or proposed to be made of such
property and buildings by the Company or the Subsidiary;
-30-
(xxiv) the Shares have been approved for listing on the
Nasdaq National Market and all other actions have been taken to have the Shares
listed on the Nasdaq National Market and delisted from the Nasdaq SmallCap
Market; and
(xxv) each of the Lock-Up Agreements executed by the
Company's executive officers and directors has been duly and validly delivered
by such persons and constitutes the legal, valid and binding obligation of each
such person enforceable against such person in accordance with its terms, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally, and by general principles of
equity.
In addition, such counsel shall state that they have participated
in conferences with officers and other representatives of the Company,
independent public accountants of the Company and representatives of the
Representatives, at which the contents of the Registration Statement and
Prospectus and related matters were discussed and, although such counsel is not
passing upon and does not assume responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement or
Prospectus (except as and to the extent stated in subparagraphs (xiii), (xvii),
and (xix) above), on the basis of the foregoing, no facts have come to the
attention of such counsel that lead them to believe that the Registration
Statement at the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that any
Preliminary Prospectus or the Prospectus, as amended or supplemented, as of
their respective effective or issue date, and as of the date of such counsel's
opinion, contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading (it being understood that, in each case, such counsel
need express no view with respect to the financial statements and other
financial data included in the Registration Statement, Preliminary Prospectus or
Prospectus).
(b) The Selling Stockholder shall furnish to the Underwriters
at the Closing Time and on each Date of Delivery an opinion of Xxxxxxx, Xxxxx &
Xxxxxxx, LLP, counsel for the Selling Stockholders, addressed to the
Underwriters and dated the Closing Time and each Date of Delivery and in form
and substance satisfactory to Xxxxxx, Xxxx & Xxxxxxxx, LLP, counsel for the
Underwriters, stating that:
(i) The Selling Stockholder has all requisite power,
authority and capacity to execute and delivery this Agreement and to consummate
the transactions described in this Agreement;
(ii) the execution, delivery and performance of this
Agreement by the Selling Stockholder, and the consummation by the Selling
Stockholder of the transactions contemplated by this Agreement, do not and will
not give rise to a right to terminate or accelerate the due date of any payment
due under, conflict with, or result in any breach or
-31-
violation of, or constitute a default under (nor constitute any event which with
notice, lapse of time, or both would constitute a breach of or default under) or
require any consent or waiver under, (A) any provision of any franchise, permit,
license, indenture, mortgage, deed of trust, loan, credit or other agreement or
instrument to which the Selling Stockholder is a party or by which its
properties may be bound or affected, and which is known to such counsel, (B) any
law or regulation binding upon or applicable to the Selling Stockholder or any
of its properties or assets, or (C) any decree, judgment or order known to such
counsel and applicable to the Selling Stockholder, except for such consents or
waivers which have been obtained and are in full force and effect;
(iii) each of this Agreement has been duly authorized,
executed and delivered by the Selling Stockholder and each is a legal, valid and
binding agreement of the Selling Stockholder enforceable in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally, and by general
principles of equity, and except that enforceability of the indemnification and
contribution provisions set forth in Section 9 of this Agreement may be limited
by the federal or state securities laws of the United States or public policy
underlying such laws;
(iv) upon the sale and delivery of the Shares by the
Selling Stockholder against receipt of payment therefor, in accordance with the
terms of this Agreement the Underwriters will acquire good and marketable title
to such Shares, free and clear of any pledge, lien, encumbrance, security
interest, or other claim; and
(v) no approval, authorization, consent, license,
permit, certificate or order of or filing by or with any federal, state or local
governmental or regulatory commission, board, body, authority or agency is
required in connection with the execution, delivery and performance of this
Agreement, the consummation of the transaction contemplated hereby and thereby,
and the sale and delivery of the Shares by th eSelling Stockholder as
contemplated hereby and thereby, other than such as have been obtained or made
and are in full force and effect under the Securities Act and the Securities Act
Regulations, such approvals as have been obtained and are in full force and
effect in connection with the approval of the quotation of the Shares on the
Nasdaq National Market and except that such counsel need express no opinion as
to any necessary qualification under the state securities or blue sky laws of
the various jurisdictions in which the Shares are being offered by the
Underwriters or any approval of the underwriting terms and arrangements by the
National Association of Securities Dealers, Inc.
(c) The Representatives shall have received from
PricewaterhouseCoopers LLP, letters dated, respectively, as of the date of this
Agreement, the Closing Time and each Date of Delivery, as the case may be,
addressed to the Representatives, in form and substance satisfactory to the
Representatives, relating to the financial statements, including any pro forma
financial statements, of the Company
-32-
and its Subsidiaries, and such other matters customarily covered by comfort
letters issued in connection with registered public offerings.
(d) The Representatives shall have received at the Closing
Time and on each Date of Delivery the favorable opinion of Xxxxxx, Xxxx &
Xxxxxxxx LLP, dated the Closing Time or such Date of Delivery, addressed to the
Representatives and in form and substance satisfactory to the Representatives.
(e) No amendment or supplement to the Registration Statement
or Prospectus shall have been filed to which the Underwriters shall have
objected in writing.
(f) Notification that the Registration Statement has become
effective shall have been received by the Representatives and the Prospectus
shall have been timely filed with the Commission in accordance with Section
4.I.(b) of this Agreement.
(g) Prior to the Closing Time and each Date of Delivery (i) no
stop order suspending the effectiveness of the Registration Statement or any
order preventing or suspending the use of any Preliminary Prospectus or
Prospectus has been issued, and no proceedings for such purpose shall have been
initiated or threatened, by the Commission, and no suspension of the
qualification of the Shares for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes, has
occurred; (ii) the Registration Statement and the Prospectus shall not contain
an untrue statement of material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and (iii) any
requests for additional information on the part of the Commission (to be
included in the Registration Statement or the Prospectus or otherwise) shall
have been complied with to the satisfaction of the Commission and the
Representatives.
(h) Between the time of execution of this Agreement and the
Closing Time or the relevant Date of Delivery (i) no material and unfavorable
change in the assets, business, operations, earnings, prospects, properties or
condition (financial or otherwise) of the Company and its Subsidiaries taken as
a whole shall occur or become known (whether or not arising in the ordinary
course of business), and (ii) no transaction which is material and unfavorable
to the Company shall have been entered into by the Company or any of its
Subsidiaries.
(i) The Shares shall have been approved for inclusion in the
Nasdaq National Market and delisted from the Nasdaq SmallCap Market.
(j) The NASD shall not have raised any objection with respect
to the fairness and reasonableness of the underwriting terms and arrangements.
(k) The Representatives shall have received lock-up agreements
from each director and executive officer of the Company listed on Schedule III
attached hereto,
-33-
in the form of Exhibit A attached hereto, and such letter agreements shall be in
full force and effect.
(l) The Company will, at the Closing Time and on each Date of
Delivery, deliver to the Underwriters a certificate of its Chairman of the Board
and Chief Executive Officer, its President and Chief Operating Officer, and its
Vice President and Chief Financial Officer, to the effect that the signers of
such certificate have carefully examined the Registration Statement, the
Prospectus and this Agreement and (i) the representations and warranties of the
Company set forth in this Agreement are true and correct on and as of such date
with the same effect as if made on such date, (ii) the Company has performed all
covenants and agreements and satisfied all conditions contained in this
Agreement required to be performed or satisfied by it at or prior to such date
and (iii) the conditions set forth in paragraphs (g), (h) and (i) have been
satisfied, in each case as of such date.
(m) The Selling Stockholder will, at the Closing Time and on
each Date of Delivery, deliver to the Underwriters a certificate, to the effect
that the Selling Stockholder has carefully examined the Registration Statement,
the Prospectus and this Agreement and (i) the representations and warranties of
the Selling Stockholder set forth in this Agreement are true and correct on and
as of such date with the same effect as if made on such date, and (ii) the
Selling Stockholder has performed all covenants and agreements and satisfied all
conditions contained in this Agreement required to be performed or satisfied by
it at or prior to such date.
(n) The Company and the Selling Stockholder, as applicable,
shall have furnished to the Underwriters such other documents and certificates
as to the accuracy and completeness of any statement in the Registration
Statement and the Prospectus, the representations, warranties and statement of
the Company contained herein, and the performance by the Company and the Selling
Stockholder of their respective covenants contained herein and therein, and the
fulfillment of any conditions contained herein or therein, as of the Closing
Time or any Date of Delivery as the Underwriters may reasonably request.
(o) The Company and the Selling Stockholder, as applicable,
shall have performed such of their respective obligations under this Agreement
as are to be performed by the terms hereof and thereof at or before the Closing
Time or the relevant Date of Delivery.
7. Termination: The obligations of the several Underwriters hereunder
shall be subject to termination in the absolute discretion of the
Representatives, at any time prior to the Closing Time or any Date of Delivery,
(i) if any of the conditions specified in Section 6 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, or (ii) if
there has been since the respective dates as of which information is given in
the Registration Statement, in the judgment of the Representatives, any material
-34-
adverse change, or any development involving a prospective material adverse
change, in or affecting the assets, business, operations, earnings, prospects,
properties, condition (financial or otherwise) or management of the Company or
any Subsidiary, whether or not arising in the ordinary course of business, or
(iii) if there has occurred outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic, political or
other conditions the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the Representative,
impracticable to market the Shares or enforce contracts for the sale of the
Shares, or (iv) if trading in any securities of the Company has been suspended
by the Commission or by Nasdaq, or if trading generally on the New York Stock
Exchange or in the Nasdaq over-the-counter market has been suspended or limited
(including automatic halt in trading pursuant to market-decline triggers other
than those in which solely program trading is temporarily halted), or
limitations on prices for trading (other than limitations on hours or numbers of
days of trading) have been fixed, or maximum ranges for prices for securities
have been required, by such exchange or the NASD or Nasdaq or by order of the
Commission or any other governmental authority, or (v) if any federal or state
statute, regulation, rule or order of any court or other governmental authority
has been enacted, published, decreed or otherwise promulgated which in the
reasonable opinion of the Representatives materially adversely affects or will
materially adversely affect the business or operations of the Company, or (vi)
if any action has been taken by any federal, state or local government or agency
in respect of its monetary or fiscal affairs which in the reasonable opinion of
the Representatives has a material adverse effect on the securities markets in
the United States, or (vii) if any domestic or international event or act or
occurrence has materially disrupted, or in the opinion of the Representatives
will in the future materially disrupt, the securities markets, or (viii) if a
banking moratorium has been declared by any state or federal authority.
If the Representatives elect to terminate this Agreement as
provided in this Section 7, the Company, the Selling Stockholder and the
Underwriters shall be notified promptly by telephone, promptly confirmed by
facsimile.
If the sale to the Underwriters of the Shares, as contemplated by
this Agreement, is not carried out by the Underwriters for any reason permitted
under this Agreement or if such sale is not carried out because the Company or
the Selling Stockholder shall be unable to comply in all material respects with
any of the terms of this Agreement, the Company and the Selling Stockholder
shall not be under any obligation or liability under this Agreement (except to
the extent provided in Sections 5 and 9 hereof) and the Underwriters shall be
under no obligation or liability to the Company or the Selling Stockholder under
this Agreement (except to the extent provided in Section 9 hereof) or to one
another hereunder.
8. Increase in Underwriters' Commitments: If any Underwriter shall default
at the Closing Time or on a Date of Delivery in its obligation to take up and
pay for the Shares to be purchased by it under this Agreement on such date the
Representatives shall have the right, within 36 hours after such default, to
make arrangements for one or more
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of the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Shares which such Underwriter shall have agreed
but failed to take up and pay for (the "Defaulted Shares"). Absent the
completion of such arrangements within such 36 hour period, (i) if the total
number of Defaulted Shares does not exceed 10% of the total number of Shares to
be purchased on such date, each non-defaulting Underwriter shall take up and pay
for (in addition to the number of Shares which it is otherwise obligated to
purchase on such date pursuant to this Agreement) the portion of the total
number of Shares agreed to be purchased by the defaulting Underwriter on such
date in the proportion that its underwriting obligations hereunder bears to the
underwriting obligations of all non-defaulting Underwriters; and (ii) if the
total number of Defaulted Shares exceeds 10% of such total, the Representatives
may terminate this Agreement by notice to the Company, without liability to any
non-defaulting Underwriter.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company and the Selling Stockholder agree with the non-defaulting
Underwriters that they will not sell any Shares hereunder on such date unless
all of the Shares to be purchased on such date are purchased on such date by the
Underwriters (or by substituted Underwriters selected by the Representatives
with the approval of the Company or selected by the Company with the approval of
the Representatives).
If a new Underwriter or Underwriters are substituted for a
defaulting Underwriter in accordance with the foregoing provision, the Company
or the non-defaulting Underwriters shall have the right to postpone the Closing
Time or the relevant Date of Delivery for a period not exceeding five business
days in order that any necessary changes in the Registration Statement and
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with the like effect as
if such substituted Underwriter had originally been named in this Agreement.
9. Indemnity and Contribution by the Company, the Selling
Stockholders and the Underwriters:
(a) The Company and the Selling Stockholder, jointly and severally,
agree to indemnify, defend and hold harmless each Underwriter and any person who
controls any Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any loss, expense,
liability, damage or claim (or action in respect thereof) (including the
reasonable cost of investigation) which, jointly or severally, any such
Underwriter or controlling person may incur under the Securities Act, the
Exchange Act or otherwise, insofar as such loss, expense, liability, damage or
claim (or action in respect thereof) arises out of or is based upon (i) any
breach of any representation, warranty or covenant of the Company contained
herein, (ii) any failure on the part of the Company to comply with any
applicable law, rule or regulation relating to the offering of securities being
made pursuant to the Prospectus, or (iii) any untrue
-36-
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company) or in a Prospectus (the term
Prospectus for the purpose of this Section 9 being deemed to include any
Preliminary Prospectus, the Prospectus and the Prospectus as amended or
supplemented by the Company) or in any audio or visual materials prepared,
approved or used by the Company in connection with the marketing of the Shares,
including without limitation, slides, videos, films and tape recordings, or
arises out of or is based upon any omission or alleged omission to state a
material fact required to be stated in either such Registration Statement or
Prospectus or such other materials or necessary to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading, and will promptly reimburse any Underwriter for all reasonable
expenses (including reasonable counsel fees and expenses) as they are incurred
in connection with the investigation of, preparation for or defense arising from
any threatened or pending claim, except insofar as any such loss, expense,
liability, damage or claim (or action in respect thereof) arises out of or is
based upon any untrue statement or alleged untrue statement or omission or
alleged omission of a material fact contained in and made in reliance upon and
in conformity with information furnished in writing by the Underwriters through
the Representatives to the Company expressly for use in such Registration
Statement or such Prospectus.
(b) If any action is brought against an Underwriter or controlling
person in respect of which indemnity may be sought against the Company or the
Selling Stockholder pursuant to subsection (a) above, such Underwriter shall
promptly notify the Company or the Selling Stockholder, as applicable, in
writing of the institution of such action, and the Company or the Selling
Stockholder, as applicable, shall assume the defense of such action, including
the employment of counsel and payment of expenses, provided, however, that any
failure or delay to so notify the Company or the Selling Stockholder, as
applicable, will not relieve the Company or the Selling Stockholder, as
applicable, of any obligation hereunder, except to the extent that its ability
to defend is actually impaired by such failure or delay. Such Underwriter or
controlling person shall have the right to employ its or their own counsel in
any such case, but the fees and expenses of such counsel shall be at the expense
of such Underwriter or such controlling person unless the employment of such
counsel shall have been authorized in writing by the Company or the Selling
Stockholder, as applicable, in connection with the defense of such action, or
the Company or the Selling Stockholder, as applicable, shall not have employed
counsel to have charge of the defense of such action within a reasonable time or
such indemnified party or parties shall have reasonably concluded (based on the
advice of counsel) that there may be defenses available to it or them which are
different from or additional to those available to the Company or the Selling
Stockholder, as applicable, (in which case neither the Company nor the Selling
Stockholder shall have the right to direct the defense of such action on behalf
of the indemnified party or parties), in any of which events such fees and
expenses shall be borne by the Company or the Selling Stockholder, as
applicable, and paid as incurred (it being understood, however, that neither the
Company nor the Selling Stockholder shall be liable for the expenses of more
than one separate firm of attorneys for the Underwriters or controlling persons
in any one action or
-37-
series of related actions in the same jurisdiction (other than local counsel in
any such jurisdiction) representing the indemnified parties who are parties to
such action). Anything in this paragraph to the contrary notwithstanding,
neither the Company nor the Selling Stockholder shall be liable for any
settlement of any such claim or action effected without the its written consent.
(c) Each Underwriter agrees, severally and not jointly, to indemnify,
defend and hold harmless the Company and the Selling Stockholder, the Company's
directors, the Company's officers that signed the Registration Statement, and
any person who controls the Company or the Selling Stockholder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any loss, expense, liability, damage or claim (or action in
respect thereof) (including the reasonable cost of investigation) which, jointly
or severally, the Company, the Selling Stockholder or any such person may incur
under the Securities Act, the Exchange Act or otherwise, but only insofar as
such loss, expense, liability, damage or claim (or action in respect thereof)
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in and made in reliance upon and in conformity with
information furnished in writing by such Underwriter through the Representatives
to the Company expressly for use in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the
Company) or in a Prospectus, or arises out of or is based upon any omission or
alleged omission to state a material fact in connection with such information
required to be stated either in such Registration Statement or Prospectus or
necessary to make such information, in the light of the circumstances under
which made, not misleading, and will promptly reimburse the Company and any
Selling Stockholder for all reasonable expenses (including reasonable counsel
fees and expenses) as they are incurred in connection with the investigation of,
preparation for or defense arising from any threatened or pending claim. The
statements set forth in paragraphs 4, 7 and 8 under the caption "Underwriting"
in the Preliminary Prospectus and the Prospectus (to the extent such statements
relate to the Underwriters) constitute the only information furnished by or on
behalf of any Underwriter through the Representatives to the Company for
purposes of Section 3.I.(j) and this Section 9.
If any action is brought against the Company, the Selling Stockholder or
any such person in respect of which indemnity may be sought against any
Underwriter pursuant to the foregoing paragraph, the Company, the Selling
Stockholder or such person shall promptly notify the Representatives in writing
of the institution of such action and the Representatives, on behalf of the
Underwriters, shall assume the defense of such action, including the employment
of counsel and payment of expenses. The Company, the Selling Stockholder or such
person shall have the right to employ its own counsel in any such case, but the
fees and expenses of such counsel shall be at the expense of the Company, the
Selling Stockholder or such person unless the employment of such counsel shall
have been authorized in writing by the Representatives in connection with the
defense of such action or the Representatives shall not have employed counsel to
have charge of the defense of such action within a reasonable time or such
indemnified party or parties shall have reasonably concluded (based on the
advice of counsel) that there may
-38-
be defenses available to it or them which are different from or additional to
those available to the Underwriters (in which case the Representatives shall not
have the right to direct the defense of such action on behalf of the indemnified
party or parties), in any of which events such fees and expenses shall be borne
by such Underwriter and paid as incurred (it being understood, however, that the
Underwriters shall not be liable for the expenses of more than one separate firm
of attorneys in any one action or series of related actions in the same
jurisdiction (other than local counsel in any such jurisdiction) representing
the indemnified parties who are parties to such action). Anything in this
paragraph to the contrary notwithstanding, no Underwriter shall be liable for
any settlement of any such claim or action effected without the written consent
of the Representatives.
(d) If the indemnification provided for in this Section 9 is unavailable
to or insufficient to hold harmless an indemnified party under subsections (a),
(b) or (c) of this Section 9 in respect of any losses, expenses, liabilities,
damages or claims (or actions in respect thereof) referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, expenses, liabilities, damages or claims (or actions in
respect thereof) (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, the Selling Stockholder and the
Underwriters from the offering of the Shares or (ii) if (but only if) the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, of
the Selling Stockholder and of the Underwriters in connection with the
statements or omissions which resulted in such losses, expenses, liabilities,
damages or claims (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company, the
Selling Stockholder and the Underwriters shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company
or the Selling Stockholder, as applicable, bear to the underwriting discounts
and commissions received by the Underwriters. The relative fault of the Company,
of the Selling Stockholder and of the Underwriters shall be determined by
reference to, among other things, whether the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission relates to
information supplied by the Company, by the Selling Stockholder or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, claims, damages and
liabilities (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any claim or action.
(e) The Company, the Selling Stockholder and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 9
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the
-39-
equitable considerations referred to in subsection (d)(i) and, if applicable
(ii), above. Notwithstanding the provisions of this Section 9, no Underwriter
shall be required to contribute any amount in excess of the underwriting
discounts and commissions applicable to the Shares purchased by such
Underwriter. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to their respective underwriting commitments
and not joint.
10. Survival: The indemnity and contribution agreements
contained in Section 9 and the covenants, warranties and representations of the
Company and the Selling Stockholder contained in this Agreement, including the
agreements in Sections 3, 4 and 5, and the provisions of Section 7 of this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of any Underwriter, or any person who controls any
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, or by or on behalf of the Company, its directors and
officers, the Selling Stockholder or any person who controls the Company or any
Selling Stockholder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, and shall survive any termination or
cancellation of this Agreement or the sale and delivery of the Shares. The
Company, the Selling Stockholder and each Underwriter agree promptly to notify
the others of the commencement of any litigation or proceeding against it and,
in the case of the Company, against any of the Company's officers and directors,
in connection with the sale and delivery of the Shares, or in connection with
the Registration Statement or Prospectus.
11. Notices: Except as otherwise herein provided, all
statements, requests, notices and agreements shall be in writing or by telegram
and, if to the Underwriters, shall be sufficient in all respects if delivered to
Friedman, Billings, Xxxxxx & Co., Inc., 0000 00xx Xxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxx 00000, Attention: Syndicate Department; if to the Company, shall be
sufficient in all respects if delivered to the Company at the offices of the
Company at 0000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000; or if to the Selling
Stockholder, 0000 Xxxxxxx Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000.
12. Governing Law; Headings: THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES. The section headings in this Agreement
have been inserted as a matter of convenience of reference and are not a part of
this Agreement.
13. Parties at Interest: The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Company, the Selling
Stockholders and the controlling persons, directors and officers referred to in
Sections 9 and 10 hereof, and their respective successors, assigns, executors
and administrators. No other person,
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partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
14. Counterparts and Facsimile Signatures: This Agreement may be signed
by the parties in counterparts which together shall constitute one and the same
agreement among the parties. A facsimile signature shall constitute an original
signature for all purposes.
If the foregoing correctly sets forth the understanding among the
Company, the Selling Stockholder and the Underwriters, please so indicate in the
space provided below for the purpose, whereupon this Agreement shall constitute
a binding agreement among the Company, the Selling Stockholder and the
Underwriters.
Very truly yours,
Sensytech, Inc.
By:
------------------------------
By:
Title:
S. R. XXXXXXX
---------------------------------
Accepted and agreed to as
of the date first above written:
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
BB&T CAPITAL MARKETS, A DIVISION OF XXXXX & XXXXXXXXXXXX, INC.
By: FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
By:
-------------------------------
Title:
For themselves and as Representatives of the other
Underwriters named on Schedule II hereto.
-41-
Schedule I
Number of Initial Number of Option
Name of Party Selling Shares Shares to be Sold Shares to be Sold
----------------------------------------------------------------------------------
Sensytech, Inc. 2,000,000 300,000
----------------------------
S. R. Xxxxxxx 20,000 0
-----------------------
Total [ ] [ ]
=============================
Schedule II
Number of Initial
Underwriter Shares to be Purchased
------------------------------------------------------------------
Friedman, Billings, Xxxxxx & Co., Inc. [ ]
--------------
BB& T Capital Markets,
a Division of Xxxxx & Xxxxxxxxxxxx, Inc. [ ]
--------------
Total..................................................... X,XXX,XXX
============
S-2
Schedule III
Persons/Entities Delivering Lock-Ups
S-2
Exhibit A
Form of Lock-up Agreement
Friedman, Billings, Xxxxxx & Co., Inc.
as Representative of the several Underwriters
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
The undersigned understands and agrees as follows:
1. Friedman, Billings, Xxxxxx & Co., Inc. ("FBR") proposes to
enter into an Underwriting Agreement (the "Underwriting Agreement") with
Sensytech, Inc, a Delaware corporation (the "Company"), and certain of
its stockholders providing for the public offering (the "Public
Offering") by the several Underwriters, including FBR (the
"Underwriters"), of _________ shares (the "Shares") of the [Common
Stock, $0.01 par value], of the Company (the "Common Stock"), and in
connection therewith, the Company has filed a registration statement,
File No. 333-98757 (as amended, the "Registration Statement") with the
Securities and Exchange Commission.
2. After consultation, the Company and FBR, acting as
representative of the Underwriters for the Public Offering, have agreed
that sales by certain officers, directors, stockholders and affiliates
of the Company within the 90-day period after the date of effectiveness
of the Registration Statement could have an adverse effect on the market
price for the Common Stock and that the public to whom the Common Stock
is being offered should be protected for a reasonable time from the
impact of such sales.
3. It is in the best interest of the Company and its
officers, directors and stockholders to have a successful public
offering and stable and orderly public market thereafter.
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of FBR on
behalf of the Underwriters, it will not, during the period commencing on the
effective date of the Registration Statement and ending 180 days after the date
of the final prospectus relating to the Public Offering, (1) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any equity
securities of the Company or any
S-2
securities convertible into or exercisable or exchangeable for equity securities
of the Company or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
equity securities of the Company, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or other
securities, in cash or otherwise.
This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Virginia without regard to principles of conflict of
laws.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to the Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
-------------------------
(Name)
-------------------------
-------------------------
(Address)
S-2