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EXHIBIT 1.1
1,650,000 Shares
ANAREN MICROWAVE, INC.
Common Stock
November__, 1997
CIBC Oppenheimer Corp.
Xxxxxxx & Company, Inc.
Pacific Growth Equities, Inc. as
Representatives of the Several Underwriters
c/o CIBC Oppenheimer Corp.
Xxxxxxxxxxx Tower
World Financial Center
New York, New York 10281
On behalf of the Several
Underwriters named on
Schedule I attached hereto.
Ladies and Gentlemen:
Anaren Microwave, Inc., a New York corporation (the Company"), and the
persons listed on Schedule I to this Agreement (the "Selling Stockholders")
propose to sell to you and the other underwriters named on Schedule II to this
Agreement (the "Underwriters"), for whom you are acting as the representatives
(the "Representatives"), an aggregate of 1,650,000 shares (the "Firm Shares") of
the Company's Common Stock, $0.01 par value (the "Common Stock"), of which
1,000,000 shares will be sold by the Company and 650,000 shares will be sold by
the Selling Stockholders, as set forth on Schedule I hereto. In addition, the
Company and certain of the Selling Stockholders, as indicated on Schedule I to
this Agreement, propose to grant to the Underwriters an option to purchase up to
an additional 247,500 shares (the "Option Shares") of Common Stock, of which
172,500 shares will be purchased from the Company and 75,000 shares will be
purchased from certain of the Selling Stockholders as set forth on Schedule I
hereto for the purpose of covering over-allotments in connection with the sale
of the Firm Shares. The Firm Shares and the Option Shares are together called
the "Shares."
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1. Sale and Purchase of the Shares.
On the basis of the representations, warranties and agreements
contained in, and subject to the terms and conditions of, this Agreement:
(a) The Company and the Selling Stockholders agree to sell to
each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company and the Selling
Stockholders, at $_____ per share (the "Initial Price"), the number of
Firm Shares set forth opposite the name of such Underwriter on Schedule
II to this Agreement.
(b) The Company and certain of the Selling Stockholders, as
indicated on Schedule I to this Agreement, grant to the several
Underwriters an option to purchase, severally and not jointly, all or
any part of the Option Shares at the Initial Price. The number of
Option Shares to be purchased by each Underwriter shall be the same
percentage (adjusted by the Representatives to eliminate fractions) of
the total number of Option Shares to be purchased by the Underwriters
as such Underwriter is purchasing of the Firm Shares. Such option may
be exercised only to cover over-allotments in the sales of the Firm
Shares by the Underwriters and may be exercised in whole or in part at
any time on or before 12:00 noon, New York City time, on the business
day before the Firm Shares Closing Date (as defined below), and only
once thereafter within 30 days after the date of this Agreement, in
each case upon written or telegraphic notice, or verbal or telephonic
notice confirmed by written or telegraphic notice, by the
Representatives to the Company no later than 12:00 noon, New York City
time, on the business day before the Firm Shares Closing Date or at
least two business days before the Option Shares Closing Date (as
defined below), as the case may be, setting forth the number of Option
Shares to be purchased and the time and date (if other than the Firm
Shares Closing Date) of such purchase. No Option Shares shall be sold
or delivered unless the Firm Shares have been or simultaneously are
sold and delivered.
2. Delivery and Payment. Delivery by the Company and the
Selling Stockholders of the Firm Shares to the Representatives for the
respective accounts of the Underwriters, and payment of the purchase price by
wire transfer of next day funds or certified or official bank check or checks
payable in New York Clearing House (next day) funds to the Company and to the
Custodian, on behalf of the Selling Stockholders, shall take place at the
offices of CIBC Xxxxxxxxxxx Corp., at Xxxxxxxxxxx Tower, World Financial Center,
New York, New York 10281, at 10:00 a.m., New York City time, on the third
business day following the date of this Agreement, or at such time on such other
date, not later than 10 business days after the date of this Agreement, as shall
be agreed upon by the Company and the Representatives (such time and date of
delivery and payment are called the "Firm Shares Closing Date").
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In the event the option with respect to the Option Shares is exercised,
delivery by the Company and the applicable Selling Stockholders of the Option
Shares to the Representatives for the respective accounts of the Underwriters
and payment of the purchase price by certified or official bank check or checks
payable in New York Clearing House (next day) funds to the Company and to the
Custodian, on behalf of the applicable Selling Stockholders, shall take place at
the offices of CIBC Xxxxxxxxxxx Corp. specified above at the time and on the
date (which may be the same date as, but in no event shall be earlier than, the
Firm Shares Closing Date) specified in the notice referred to in Section 1(b)
(such time and date of delivery and payment are called the "Option Shares
Closing Date"). The Firm Shares Closing Date and the Option Shares Closing Date
are called, individually, a "Closing Date" and, together, the "Closing Dates."
Certificates evidencing the Shares shall be registered in such names
and shall be in such denominations as the Representatives shall request at least
two full business days before the Firm Shares Closing Date or, in the case of
Option Shares, on the day of notice of exercise of the option as described in
Section 1(b) and shall be made available to the Representatives for checking and
packaging, at such place as is designated by the Representatives, on the full
business day before the Firm Shares Closing Date (or the Option Shares Closing
Date in the case of the Option Shares).
3. Registration Statement and Prospectus; Public Offering. The
Company has prepared in conformity with the requirements of the Securities Act
of 1933, as amended (the "Securities Act"), and the published rules and
regulations thereunder (the "Rules") adopted by the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-39015), including a preliminary prospectus relating to the Shares, and has
filed with the Commission the Registration Statement (as hereinafter defined)
and such amendments thereof as may have been required to the date of this
Agreement. Copies of such Registration Statement (including all amendments
thereof), of the related preliminary prospectus and of all documents
incorporated by reference therein that were filed with the Commission on or
prior to the date of this Agreement have heretofore been delivered by the
Company to you. The term "preliminary prospectus" means any preliminary
prospectus (as described in Rule 430 of the Rules) included at any time as a
part of the Registration Statement. The Registration Statement as amended at the
time and on the date it becomes effective (the "Effective Date"), including all
exhibits and information, if any, deemed to be part of the Registration
Statement pursuant to Rule 424(b) and Rule 430A of the Rules, together with any
registration statement filed by the Company pursuant to Rule 462(b) of the
Securities Act, is called the "Registration Statement." The term "Prospectus"
means the prospectus in the form first used to confirm sales of the Shares
(whether such prospectus was included in the Registration Statement at the time
of effectiveness or was subsequently filed with the Commission pursuant to Rule
424(b) of the Rules). Any reference in this Agreement to the Registration
Statement or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein (and the exhibits to such
incorporated documents) pursuant to Item 12 of Form S-3 under the Securities
Act, as of the date of the
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Registration Statement or the prospectus, as the case may be, and any reference
to any amendment or supplement to the Registration Statement or the Prospectus
shall be deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
which, upon filing, are incorporated by reference therein, as required by
paragraph (b) of Item 12 of Form S-3. As used herein, the term "Incorporated
Documents" means the documents which at the time are incorporated by reference
in the Registration Statement, the Prospectus, or any amendment or supplement
thereto.
The Company understands that the Underwriters propose to make a public
offering of the Shares, as set forth in and pursuant to the Prospectus, as soon
after the Effective Date and the date of this Agreement as the Representatives
deem advisable. 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 amendments or supplements thereto to the Underwriters).
4. Representations and Warranties of the Company and the
Selling Stockholders.
(a) The Company and the Selling Stockholders hereby severally
represent and warrant to each Underwriter as follows:
(i) The Company and the transactions contemplated by
this Agreement meet the requirements for using Form S-3 under
the Securities Act. On the Effective Date the Registration
Statement complied, and on the date of the Prospectus, on the
date any post-effective amendment to the Registration
Statement shall become effective, on the date any supplement
or amendment to the Prospectus is filed with the Commission
and on each Closing Date, the Registration Statement and the
Prospectus (and any amendment thereof or supplement thereto)
will comply, in all material respects, with the applicable
provisions of the Securities Act and the Rules and the
Exchange Act, and the rules and regulations of the Commission
thereunder; the Registration Statement did not, as of the
Effective Date, contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein
not misleading; and on the other dates referred to above
neither the Registration Statement nor the Prospectus, nor any
amendment thereof or supplement thereto, will contain any
untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein 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 Rules) and when any
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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 Rules and
did not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not
misleading. Notwithstanding the foregoing, the Company and the
Selling Stockholders make no representation or warranty as to
the paragraphs with respect to stabilization and passive
market making on the inside front cover page of the Prospectus
and the statements contained under the caption "Underwriting"
in the Prospectus. The Company and the Selling Shareholders
acknowledge that the statements referred to in the previous
sentence constitute the only information furnished in writing
by the Representatives on behalf of the several Underwriters
specifically for inclusion in the Registration Statement, any
preliminary prospectus or the Prospectus.
(ii) The Incorporated Documents heretofore filed,
when they were filed (or, if any amendment with respect to any
such document was filed, when such amendment was filed),
complied, in all material respects, with the applicable
provisions of the Exchange Act and the rules and regulations
of the Commission thereunder, any further Incorporated
Documents when filed will comply, in all material respects,
with the applicable provisions of the Exchange Act and the
rules and regulations of the Commission thereunder; no such
Incorporated Document when it was filed (or, if an amendment
with respect to any such document was filed, when such
amendment was filed) contained an untrue statement of a
material fact or omitted to state any material fact required
to be stated therein or necessary in order to make the
statements therein not misleading; and no such further
Incorporated Document, when it is filed, will contain an
untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein not misleading.
(iii) All contracts and other documents required to
be filed as exhibits to the Registration Statement or to any
of the Incorporated Documents have been filed with the
Commission as exhibits to the Registration Statement or to the
applicable Incorporated Document, as the case may be.
(iv) The consolidated financial statements of the
Company and its subsidiaries (including all notes and
schedules thereto) included or incorporated by reference in
the Registration Statement and Prospectus present fairly the
consolidated financial position, results of operations and
cash flows and stockholders' equity and the other information
purported to be shown therein of the Company and its
subsidiaries at the respective dates and for the respective
periods to which they apply; and such financial statements
have been
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prepared in conformity with generally accepted accounting
principles, consistently applied throughout the periods
involved, and all adjustments necessary for a fair
presentation of the results for such periods have been made.
(v) KPMG Peat Marwick LLP, whose reports are filed
with the Commission as a part of the Registration Statement,
are and, during the periods covered by their reports, were
independent public accountants as required by the Securities
Act and the Rules.
(vi) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of New York. Anaren Microwave, Ltd., a
company organized under the Companies Act of England and
Wales, and Anaren V.I. Inc., a company organized in the U.S.
Virgin Islands, are the only subsidiaries of the Company, and
each has been duly organized and is validly existing as a
corporation in good standing under the laws of its respective
jurisdiction. The Company and each of its subsidiaries
(hereinafter collectively referred to as the "Company") is
duly qualified and in good standing as a foreign corporation
in each jurisdiction in which the character or location of its
assets or properties (owned, leased or licensed) or the nature
of its business makes such qualification necessary except for
such jurisdictions where the failure to so qualify would not
have a material adverse effect on the assets or properties,
business, results of operations, prospects or condition
(financial or otherwise) of the Company. Except as disclosed
in the Registration Statement and the Prospectus, the Company
does not own, lease or license any asset or material property
or conduct any business outside the United States of America.
The Company has all requisite corporate power and authority,
and all necessary authorizations, approvals, consents, orders,
licenses, certificates and permits of and from all
governmental or regulatory bodies or any other person or
entity, to own, lease and license its assets and properties
and conduct its business as now being conducted and as
described in the Registration Statement and the Prospectus
except for such authorizations, approvals, consents, orders,
licenses, certificates and permits the failure to so obtain
would not have a material adverse effect upon the assets or
properties, business, results of operations, prospects or
condition (financial or otherwise) of the Company; no such
authorization, approval, consent, order, license, certificate
or permit contains a materially burdensome restriction other
than as disclosed in the Registration Statement and the
Prospectus, and the Company has all such corporate power and
authority, and such authorizations, approvals, consents,
orders, licenses, certificates and permits to enter into,
deliver and perform this Agreement and to issue and sell the
Shares (except as may be required under state securities). To
the Company's knowledge, all of the properties now or formerly
owned or leased by the Company, all research and manufacturing
operations conducted thereon (including discharges and
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emissions therefrom) and all research and manufacturing
equipment now or formerly used at said properties, have been
and are in compliance with all Federal, state, local and
foreign statutes, ordinances, regulations, rules and standards
concerning or relating to industrial hygiene and the
protection of health, safety, welfare and the environment
(collectively, "the Environmental Laws"), except to the extent
that any failure to be in compliance, singly or in the
aggregate, would not have a material adverse effect upon the
assets or properties, business, results of operations,
prospects or condition (financial or otherwise) of the
Company. The Company has not received notice, and does not
have knowledge, of any claim, demand, investigation,
regulatory action, suit or other action instituted or
threatened against it or said property relating to any of the
Environmental Laws.
(vii) The Company owns or possesses adequate and
enforceable rights to use all patents, patent applications,
trademarks, trademark applications, trade names, service
marks, copyrights, copyright applications, licenses, know-how,
proprietary techniques, including processes and substances,
and other similar rights and proprietary knowledge
(collectively, "Intangibles") necessary for the conduct of its
business as described in the Registration Statement and the
Prospectus. The Company has not received any notice of, and
does not have any knowledge of, any infringement of or
conflict with asserted rights of others with respect to any
Intangibles which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would have a
material adverse effect upon the assets or properties,
business, results of operations, prospects or condition
(financial or otherwise) of the Company. The Company is not
aware of any infringement of any of the Company's Intangibles
by any third party which could have a material adverse effect
upon the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of
the Company.
(viii) The Company has good title to each of the
items of personal property which are reflected in the
financial statements referred to in Section 4(a)(iv) or are
referred to in the Registration Statement and the Prospectus
as being owned by it and valid and enforceable leasehold
interests in each of the items of real and personal property
which are referred to in the Registration Statement and the
Prospectus as being leased by it, in each case free and clear
of all liens, encumbrances, claims, security interests and
defects, other than those described in the Registration
Statement and the Prospectus or those which do not and will
not have a material adverse effect upon the assets or
properties, business, results of operations, prospects or
condition (financial or otherwise) of the Company.
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(ix) There is no litigation or governmental or other
proceeding or investigation before any court or before or by
any public body or board pending or, to the Company's
knowledge, threatened (and the Company does not know of any
basis therefor) against, or involving the assets, properties
or business of, the Company which would materially adversely
affect the value or the operation of any such assets or
properties or the business, results of operations, prospects
or condition (financial or otherwise) of the Company.
(x) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as described therein, (i) there has not
been any material adverse change in the assets or properties,
business, results of operations, prospects or condition
(financial or otherwise) of the Company, whether or not
arising from transactions in the ordinary course of business;
(ii) the Company has not sustained any material loss or
interference with its assets, businesses 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; and (iii) since the date
of the latest balance sheet included in the Registration
Statement and the Prospectus, except as reflected therein, the
Company has not (a) issued any securities or incurred any
liability or obligation, direct or contingent, for borrowed
money, except such liabilities or obligations incurred in the
ordinary course of business, (b) entered into any transaction
not in the ordinary course of business or (c) declared or paid
any dividend or made any distribution on any shares of its
stock or redeemed, purchased or otherwise acquired or agreed
to redeem, purchase or otherwise acquire any shares of its
stock.
(xi) There is no document or contract of a character
required to be described in the Registration Statement or
Prospectus or to be filed as an exhibit to the Registration
Statement or any Incorporated Document which is not described
or filed as required. Each agreement listed in the exhibits to
the Registration Statement or any Incorporated Document is in
full force and effect and is valid and enforceable by and
against the Company in accordance with its terms, assuming the
due authorization, execution and delivery therefor by each of
the other parties thereto. Neither the Company nor, to the
Company's knowledge, any other party is in default in the
observance or performance of any term or obligation to be
performed by it under any such agreement, and no event has
occurred which with notice or lapse of time or both would
constitute such a default in any such case, which default or
event would have a material adverse effect on the assets or
properties, business, results of operations, prospects or
condition (financial or otherwise) of the Company. No default
exists, and no event has occurred which with notice or lapse
of time or both would constitute a default, in the due
performance and observance of any term,
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covenant or condition, by the Company of any other agreement
or instrument to which the Company is a party or by which it
or its properties or business may be bound or affected which
default or event would have a material adverse effect on the
assets or properties, business, results of operations,
prospects or condition (financial or otherwise) of the
Company.
(xii) The Company is not in violation of any term or
provision of its charter or by-laws or of any franchise,
license, permit, judgment, decree, order, statute, rule or
regulation, where the consequences of such violation would
have a material adverse effect on the assets or properties,
business, results of operations, prospects or condition
(financial or otherwise) of the Company.
(xiii) Neither the execution, delivery and
performance of this Agreement by the Company nor the
consummation of any of the transactions contemplated hereby
(including, without limitation, the issuance and sale by the
Company of the Shares) will give rise to a right to terminate
or accelerate the due date of any payment due under, or
conflict with or result in the breach of any term or provision
of, or constitute a default (or an event which with notice or
lapse of time or both would constitute a default) under, or
require any consent or waiver under, or result in the
execution or imposition of any lien, charge or encumbrance
upon any properties or assets of the Company pursuant to
the terms of, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company is a party or by
which it or any of its properties or businesses is bound, or
any franchise, license, permit, judgment, decree, order,
statute, rule or regulation applicable to the Company or
violate any provision of the charter or by-laws of the
Company, except for such consents or waivers which have
already been obtained and are in full force and effect.
(xiv) The Company has an authorized and outstanding
capital stock as set forth under the caption "Capitalization"
in the Prospectus. All of the outstanding shares of Common
Stock have been duly and validly issued and are fully paid and
nonassessable and none of them was issued in violation of any
preemptive or other similar right. The Shares, when issued and
sold pursuant to this Agreement, will be duly and validly
issued, fully paid and nonassessable and none of them will be
issued in violation of any preemptive or other similar right.
Except as disclosed in the Registration Statement and the
Prospectus, other than options issued on November 10, 1997,
to purchase an aggregate of 84,500 shares of the Company's
Common Stock issued pursuant to the Company's stock option
plans, there is no outstanding option, warrant or other right
calling for the issuance of, and there is no commitment, plan
or arrangement to issue, any share of stock of the Company or
any security convertible into, or exercisable or exchangeable
for, such stock. 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.
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(xv) No holder of any security of the Company has the
right to have any security owned by such holder included in
the Registration Statement or to demand registration of any
security owned by such holder. Each director and executive
officer of the Company and each Selling Stockholder has
delivered to the Representatives an enforceable written
agreement that he or it will not, for a period of 90 days
after the date of this Agreement, sell, offer, contract to
sell, make any short sale, pledge, or otherwise dispose of,
directly or indirectly, any shares of Common Stock or any
securities convertible into or exchangeable exercisable for
any other rights to purchase or acquire Common Stock without
the prior written consent of the CIBC Xxxxxxxxxxx Corp.
(xvi) 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 constitutes a legal, valid and binding obligation
of the Company enforceable against the Company in accordance
with its respective terms, except (A) as the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general
equitable principles and (B) to the extent that rights to
indemnity or contribution under this Agreement may be limited
by Federal and state securities laws or the public policy
underlying such laws.
(xvii) The Company is not involved in any labor
dispute nor, to the knowledge of the Company, is any such
dispute threatened, which dispute would have a material
adverse effect on the assets or properties, business, results
of operations, prospects or condition (financial or otherwise)
of the Company.
(xviii) No transaction has occurred between or among
the Company and any of its officers or directors or any
affiliate or affiliates of any such officer or director that
is required to be described in and is not described in the
Registration Statement and the Prospectus.
(xix) The Company has not taken, nor will it take,
directly or indirectly, any action designed to or which might
reasonably be expected to cause or result in, or which has
constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of any of
the Shares.
(xx) The Company has filed all Federal, state, local
and foreign tax returns which are required to be filed by it
through the date hereof, or has received extensions thereof,
and has paid all taxes shown on such returns and all
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assessments received by it to the extent that the same are
material and have become due.
(xxi) The Company was in compliance with all
restrictions and covenants under the Credit Facility
Agreement, dated October 1, 1996 by and between the Company
and Manufacturers and Traders Trust Company and the related
Term Note, Revolving Credit Note and Security Agreement, each
dated October 1, 1996 by and between the Company and
Manufacturers and Traders Trust Company (together, the "Credit
Facility"), including but not limited to the minimum tangible
net worth, the ratio of cash flows to maturities and leverage
ratio, at September 30, 1997 [and as of the date hereof].
(xxii) The Shares have been duly authorized for
quotation on Nasdaq National Market.
(b) Each Selling Stockholder severally represents and warrants
to each Underwriter and the Company as follows:
(i) All authorizations and consents necessary for the
execution and delivery by it of this Agreement and the sale
and delivery of the Shares to be sold by such Selling
Stockholder hereunder have been given and are in full force
and effect on the date hereof and will be in full force and
effect on the Firm Shares Closing Date (and, if applicable,
the Option Shares Closing Date).
(ii) Such Selling Stockholder has, and on the Firm
Shares Closing Date (and, if applicable, the Option Shares
Closing Date) will have, good and valid title to the Shares to
be sold by such Selling Stockholder, free and clear of all
liens, mortgages, pledges, encumbrances, claims, equities and
security interests whatsoever, and will have full right, power
and authority to enter into this Agreement and to sell,
assign, transfer and deliver the Shares to be sold by such
Selling Stockholder hereunder.
(iii) Upon delivery of and payment for such Shares
hereunder, the several Underwriters will acquire valid and
unencumbered title to such Shares to be sold by such Selling
Stockholder hereunder, free and clear of all liens, mortgages,
pledges, encumbrances, claims, equities and security interests
whatsoever.
(iv) The consummation by such Selling Stockholder of
the transactions contemplated herein and the fulfillment by
such Selling Stockholder of the terms hereof will not result
in a violation or breach of any terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, note, loan agreement, sale and leaseback arrangement or
other agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder is
bound, or of any order, rule or regulation applicable to such
Selling Stockholder of any court or of any regulatory body of
an administrative agency or other governmental body having
jurisdiction.
(v) Such Selling Stockholder has not taken and will
not take, directly or indirectly, any action designed to or
which might be reasonably expected to cause or result in
stabilization or manipulation of the price of the Common
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Stock, and such Selling Stockholder is not aware of any such
action taken or to be taken by affiliates of such Selling
Stockholder.
(vi) When the Registration Statement becomes
effective and at all times subsequent thereto, such
information in the Registration Statement and Prospectus and
any amendments or supplements thereto as specifically refers
to such Selling Stockholder will not contain any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading.
(vii) Certificates in negotiable form representing
all of the Shares to be sold by such Selling Stockholder
hereunder have been placed in the custody of the Company (the
"Custodian") under a Custody Agreement (the "Custody
Agreement"), duly executed and delivered by such Selling
Stockholder, with the Custodian having the authority to
deliver the Shares to be sold by such Selling Stockholder
hereunder, and such Selling Stockholder has duly executed and
delivered a Power of Attorney (the "Power of Attorney")
appointing Xxxxxxxx X. Xxxx and Xxxxxx X. Xxxxxxxx as such
Selling Stockholder's attorneys-in-fact (the
"Attorneys-in-Fact") with the Attorneys-in-Fact having
authority to execute and deliver this Agreement on behalf of
such Selling Stockholder, to determine the purchase price to
be paid by the Underwriters to the Selling Stockholder as
provided in Section 1(a), to authorize the delivery of the
Shares to be sold by it hereunder and otherwise to act on
behalf of such Selling Stockholder in connection with the
transactions contemplated by this Agreement and the Custody
Agreement.
(viii) The Shares represented by the certificates
held in custody for such Selling Stockholder under the Custody
Agreement are subject to the interests of the Underwriters
hereunder, and the arrangements made by such Selling
Stockholder for such custody, and the appointment by such
Selling Stockholder of the Custodians under the Custody
Agreement and of the Attorneys-in-Fact under the Power of
Attorney, are to that extent irrevocable.
(ix) The obligations of such Selling Stockholder
hereunder shall not be terminated by operation of law, whether
by the death or incapacity of any individual Selling
Stockholder or by the occurrence of any other event, and if
any Selling Stockholder should die or become incapacitated, or
if any other such event should occur before the delivery of
the Shares hereunder, certificates representing the Shares
shall be delivered by or on behalf of each Selling Stockholder
in accordance with the terms and conditions of this Agreement
and of the Custody Agreement, and actions taken by the
Custodian pursuant to the Custody Agreement or by the
Attorneys-in-Fact pursuant to the Power of Attorney shall be
as valid as if such death, incapacity or other event had not
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occurred, regardless of whether or not the Custodians or
Attorneys-in-Fact, or any of them, shall have received notice
of such death, incapacity or other event.
(x) Such Selling Stockholder is not prompted to sell
shares of Common Stock by any information concerning the
Company which is not included or incorporated by reference in
the Registration Statement or the Prospectus.
(c) Any certificates signed by any officer of the Company and
delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to
the matters covered thereby; and any certificate signed by or on behalf
of the Selling Stockholders as such and delivered to you or to counsel
for the Underwriters shall be deemed a representation and warranty by
the Selling Stockholders to each Underwriter as to the matters covered
thereby.
5. Conditions of the Underwriters' Obligations. The
obligations of the Underwriters under this Agreement are several and not joint.
The respective obligations of the Underwriters to purchase the Shares are
subject to each of the following terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 6(A)(a) of this Agreement.
(b) No order preventing or suspending the use of any
preliminary prospectus or the Prospectus shall have been or shall be in
effect and no order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for such purpose shall
be pending before or threatened by the Commission, and 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 Representatives.
(c) The representations and warranties of the Company and the
Selling Stockholders contained in this Agreement and in the
certificates delivered pursuant to this Section 5 shall be true and
correct when made and on and as of each Closing Date as if made on such
date and the Company and the Selling Stockholders shall have performed
all covenants and agreements and satisfied all the conditions contained
in this Agreement required to be performed or satisfied by it and them
at or before such Closing Date.
(d) The Representatives shall have received on each Closing
Date a certificate, addressed to the Representatives and dated such
Closing Date, of the chief executive officer and the chief financial
officer of the Company to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
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Prospectus and this Agreement and that the representations and
warranties of the Company in this Agreement are true and correct on and
as of such Closing Date with the same effect as if made on such Closing
Date and 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 Closing Date.
(e) The Representatives shall have received on each Closing
Date a certificate, addressed to the Representatives and dated such
Closing Date, of the Selling Stockholders to the effect that (i) the
representations and warranties of the Selling Stockholders in this
Agreement are true and correct on and as of such Closing Date with the
same effect as if made on such Closing Date and (ii) such Selling
Stockholders have performed all covenants and agreements and have
satisfied all conditions contained in this Agreement required to be
performed or satisfied by the Selling Stockholders at or prior to such
Closing Date.
(f) The Representatives shall have received on the Effective
Date, at the time this Agreement is executed and on each Closing Date a
signed letter from KPMG Peat Marwick LLP addressed to the
Representatives and dated, respectively, the Effective Date, the date
of this Agreement and each such Closing Date, in form and substance
satisfactory to the Representatives.
(g) The Representatives shall have received on each Closing
Date from Bond, Xxxxxxxxx & Xxxx, LLP, counsel for the Company, an
opinion, addressed to the Representatives and dated such Closing Date,
and stating in effect that:
(i) The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of
the State of New York. Anaren Microwave, Ltd. and Anaren V.I. Inc. are
the only subsidiaries of the Company and each has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its respective jurisdiction. The Company is duly
qualified and in good standing as a foreign corporation in each
jurisdiction in which the character or location of its assets or
properties (owned, leased or licensed) or the nature of its business
makes such qualification necessary except for such jurisdictions where
the failure to so qualify would not have a material adverse effect on
the assets or properties, business, results of operations, prospects or
condition (financial or otherwise) of the Company.
(ii) The Company has all requisite corporate power
and authority, and all necessary authorizations, approvals, consents,
orders, licenses, certificates and permits of and from all governmental
or regulatory bodies or any other person or entity, to own, lease and
license its assets and properties as described in the Registration
Statement and the Prospectus and conduct its business as now being
conducted, as described in the Registration Statement and the
Prospectus; and the Company has all requisite corporate power and
authority and all
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necessary authorizations, approvals, consents, orders, licenses,
certificates and permits to enter into, deliver and perform this
Agreement and to issue and sell the Shares (except as may be required
under state securities laws).
(iii) To such counsel's knowledge, all of the
properties now or formerly owned or leased by the Company or any
subsidiary, all research and manufacturing operations conducted thereon
(including discharges and emissions therefrom) and all research and
manufacturing equipment now or formerly used at said properties, have
been and are in compliance with all Federal, state, local and foreign
statutes, ordinances, regulations, rules and standards concerning or
relating to industrial hygiene and the protection of health, safety,
welfare and the environment (collectively, "the Environmental Laws"),
except to the extent that any failure to be in compliance, singly or in
the aggregate, would not have a material adverse effect upon the assets
or properties, business, results of operations, prospects or condition
(financial or otherwise) of the Company. To such counsel's knowledge,
the Company has not received notice of and does not have knowledge, of
any claim, demand, investigation, regulatory action, suit or other
action instituted or threatened against it or said property relating to
any of the Environmental Laws.
(iv) The authorized and issued capital stock of the
Company is as set forth in the Registration Statement and the
Prospectus, except for issuances and forfeitures subsequent to the date
of the information provided in the Registration Statement and
Prospectus pursuant to employee stock plans and/or option agreements
referred to in the Prospectus; the certificates evidencing the Shares
are in due and proper legal form under New York law and have been duly
authorized for issuance by the Company; all of the outstanding shares
of Common Stock of the Company have been duly and validly authorized
and have been duly and validly issued and are fully paid and
nonassessable and none of them was issued in violation of any
preemptive or other similar right or any provision of any agreement to
which, to such counsel's knowledge, the Company is a party. The Shares
when issued and sold pursuant to this Agreement will be duly and
validly issued, outstanding, fully paid and nonassessable and none of
them will have been issued in violation of any preemptive or other
similar right or any provision of any agreement to which, to such
counsel's knowledge, the Company is a party. To such counsel's
knowledge, except as disclosed in the Registration Statement and the
Prospectus, there is no outstanding option, warrant or other right
calling for the issuance of, and no commitment, plan or arrangement to
issue, any share of stock of the Company or any security convertible
into, exercisable for, or exchangeable for stock of the Company. The
Common Stock and the Shares conform in all material respects to the
descriptions thereof contained in the Registration Statement and the
Prospectus or in any Incorporated Document.
(v) The agreement of each director and executive
officer of the Company and each Selling Stockholder stating that they
will not directly or indirectly
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sell, offer, contract to sell, make any short sale, pledge or otherwise
dispose of any shares of Common Stock or any securities convertible
into, or exercisable for other rights to purchase or acquire Common
Stock for a period of 90 days from the date of this Agreement, without
the prior written consent of CIBC Xxxxxxxxxxx Corp., has been duly and
validly delivered by such persons and constitutes the legal, valid and
binding obligation of each such person enforceable against each such
person in accordance with its terms, except as enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
(vi) The Company is qualified to file a Registration
Statement with the Commission using Form S-3. All necessary corporate
action has been duly and validly taken by the Company to authorize the
execution, delivery and performance of this Agreement, the execution
and filing of the Registration Statement and the issuance and sale of
the Shares. This Agreement has been duly and validly authorized,
executed and delivered by the Company and this Agreement constitutes
the legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms except (A) as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles and (B) to the extent that rights to indemnity or
contribution under this Agreement may be limited by Federal or state
securities laws or the public policy underlying such laws.
(vii) To such counsel's knowledge, after due inquiry,
neither the execution, delivery and performance of this Agreement by
the Company nor the consummation of any of the transactions
contemplated hereby (including, without limitation, issuance and sale
by the Company of the Shares) will give rise to a right to terminate or
accelerate the due date of any payment due under or conflict with or
result in the breach of any term or provision of, or constitute a
default (or any event which with notice or lapse of time, or both,
would constitute a default) under, or require consent or waiver (which
consent or waiver has not previously been obtained) under, or result in
the execution or imposition of any lien, charge or encumbrance upon any
properties or assets of the Company pursuant to the terms of any
indenture, mortgage, deed of trust, note or other agreement or
instrument to which the Company is a party or by which it or any of its
properties or businesses is bound, or any franchise, license, permit,
judgment, decree, order, statute, rule or regulation or violate any
provision of the charter or by-laws of the Company.
(viii) To such counsel's knowledge, no default
exists, and no event has occurred which with notice or lapse of time,
or both, would constitute a default, in the due performance and
observance of any term, covenant or condition by the Company of any
indenture, mortgage, deed of trust, note or any other agreement or
instrument to which the Company is a Party or by which it or any of its
assets or properties or businesses may be bound or affected, where the
consequences of such default would
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have a material and adverse effect on the assets, properties, business,
results of operations, prospects or condition (financial or otherwise)
of the Company.
(ix) The Company is not in violation of any term or
provision of its charter or by-laws or to such counsel's knowledge any
franchise, license, permit, judgment, decree, order, statute, rule or
regulation, where the consequences of such violation would have a
material and adverse effect on the assets or properties, businesses,
result of operations, prospects or condition (financial or otherwise)
of the Company.
(x) No consent, approval, authorization, license,
certificate, permit or order of any court or governmental agency or
body is required for the execution, delivery or performance of this
Agreement by the Company or the consummation of the transactions
contemplated hereby or thereby, including without limitation the sale
of the Shares, except such as have been obtained under the Securities
Act and such as may be required under state securities laws in
connection with the purchase and distribution of the Shares by the
several Underwriters.
(xi) To such counsel's knowledge, there is no
litigation or governmental or other proceeding or investigation, before
any court or before or by any public body or board pending or
threatened against, or involving the assets, properties or businesses
of, the Company which would have a material adverse effect upon the
assets or properties, business, results of operations, prospects or
condition (financial or otherwise) of the Company.
(xii) The statements in the Prospectus under the
captions ["Description of Capital Stock," "Liquidity and Capital
Resources," "Risk Factors - Shares Eligible for Future Sales" and
"Shares Eligible for Future Sale,"] insofar as such statements
constitute a summary of documents referred to therein or matters of
law, are fair summaries in all material respects and accurately present
the information called for with respect to such documents and matters.
To such counsel's knowledge, all contracts and other documents required
to be filed as exhibits to, or described in, the Registration Statement
or any Incorporated Document have been so filed with the Commission or
are fairly described in the Registration Statement, as the case may be.
(xiii) To such counsel's knowledge, no holder of any
security of the Company has the right to have any security owned by
such holder included in the Registration Statement or, except as
described in the Registration Statement, to demand registration of any
security of the Company.
(xiv) The Registration Statement, all preliminary
prospectuses and the Prospectus and each amendment or supplement
thereto (except for the financial statements and schedules and other
financial and statistical data included therein, as to which such
counsel need not express no opinion) comply as to form in all material
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respects with the requirements of the Securities Act and the Rules, and
the Incorporated Documents (except for the financial statements and
schedules, and other financial and statistical data included therein,
as to which such counsel need not express an opinion), when they were
filed with the Commission appeared on their face to comply in all
material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder.
(xv) The Registration Statement has become effective
under the Securities Act, and no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to such counsel's
knowledge, are threatened, pending or contemplated.
To the extent deemed advisable by such counsel, they may rely as to
matters of fact on certificates of responsible officers of the Company and
public officials and on the opinions of other counsel satisfactory to the
Representatives as to matters which are governed by laws other than the laws of
the State of New York and the Federal laws of the United States; provided that
such counsel shall state that, in their opinion, the Underwriters and they are
justified in relying on such other opinions. Copies of such certificates and
other opinions shall be furnished to the Representatives and counsel for the
Underwriters.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the Representatives and representatives of the
independent certified public accountants of the Company, at which conferences
the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel is not passing upon and does
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus (except as
specified in the foregoing opinion), on the basis of the foregoing, no facts
have come to the attention of such counsel which lead such counsel to believe
that the Registration Statement at the time it became effective (except with
respect to the financial statements and notes and schedules thereto and other
financial data, as to which such counsel need express no belief) contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus as amended or supplemented (except with respect to the
financial statements and notes schedules thereto and other financial data, as to
which such counsel need make no statement) on the date thereof contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(h) The Representatives shall have received on each Closing
Date from Bond, Xxxxxxxxx & Xxxx, LLP, counsel to the Selling
Stockholders, an opinion, addressed to the Representatives and dated
such Closing Date, and stating in effect that:
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(i) Each Selling Stockholder has duly authorized,
executed and delivered the Custody Agreement and Power of
Attorney (a) appointing the Company as such Selling
Stockholder's Custodian with authority to take custody of and
deliver the Shares as represented by certificates on behalf of
such Selling Stockholder in connection with the transactions
contemplated by this Agreement and the Custody Agreement and
(b) appointing Xxxxxxxx X. Xxxx and Xxxxxx X. Xxxxxxxx, as
such Selling Stockholder's attorneys-in-fact with authority to
execute and deliver this Agreement on behalf of such Selling
Stockholder and otherwise to act on behalf of such Selling
Stockholder in connection with the transactions contemplated
by this Agreement and the Power of Attorney.
(ii) This Agreement has been duly executed and
delivered on behalf of the Selling Stockholders and this
Agreement constitutes the legal, valid and binding obligation
of each Selling Stockholder enforceable against each Selling
Stockholder in accordance with its terms except (A) as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and
by general equitable principles and (B) to the extent that
rights to indemnity or contribution under this Agreement may
be limited by Federal or state securities laws or the public
policy underlying such laws.
(iii) Each Selling Stockholder has full legal right
and any approval required by law (other than as required by
state securities laws) to sell, assign, transfer and deliver
the Shares to be sold by such Selling Stockholder.
(iv) No consent, approval, authorization or order of
any court, or governmental agency or body is required for
consummation of the transactions contemplated by this
Agreement in connection with the Shares to be sold by each
Selling Stockholder hereunder except such as may be required
under state securities laws.
(v) To such counsel's knowledge, each Selling
Stockholder has good and valid title to the Shares being sold
by such Selling Stockholder hereunder, free and clear of all
liens, mortgages, pledges, encumbrances, claims, equities and
security interests;
(vi) To such counsel's knowledge, upon delivery of
the Shares to be sold by each Selling Stockholder pursuant to
this Agreement and payment therefor as contemplated herein,
and assuming that the Underwriters purchase such Shares in
good faith and without notice of an adverse claim, each
Selling Stockholder will have transferred to the Underwriters
good and valid title to the Shares being sold by such Selling
Stockholder on the Closing Date, free and
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clear of all liens, mortgages, pledges, encumbrances, claims,
equities and security interests whatsoever.
(vii) The agreement of each Selling Stockholder
stating that he or it will not, directly or indirectly, sell,
offer, contract to sell, make any short sale, pledge or
otherwise dispose of any shares of Common Stock or any
securities convertible into or exchangeable or exercisable for
any other rights to purchase or acquire Common Stock for a
period of 90 days from the date of this Agreement without the
prior written consent of CIBC Xxxxxxxxxxx Corp. has been duly
and validly delivered by each Selling Stockholder and
constitutes the legal, valid and binding obligation of each
Selling Stockholder, enforceable against such Selling
Stockholder in accordance with the terms thereof, except as
enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles.
In rendering the foregoing opinion, such counsel may rely, provided
that the opinion shall state that you and they are entitled to so rely, as to
matters involving laws of any jurisdiction other than the State of New York or
the United States, upon opinions addressed to the Underwriters of other counsel
satisfactory to them and to counsel for the Underwriters; and as to all matters
of fact, upon certificates and written statements of the Selling Stockholders.
(i) All proceedings taken in connection with the sale of the
Firm Shares and the Option Shares as herein contemplated shall be
satisfactory in form and substance to the Representatives and their
counsel and the Underwriters shall have received from Xxxx and Xxxx
LLP, counsel to the Underwriters ("Xxxx and Xxxx"), a favorable
opinion, addressed to the Representatives and dated such Closing Date,
with respect to the Shares, the Registration Statement and the
Prospectus, and such other related matters, as the Representatives may
reasonably request, and the Company shall have furnished to Xxxx and
Xxxx such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(j) The Representatives shall have received on each Closing
Date from the Company and the Selling Stockholders such other
certificates or documents as may be reasonably requested by the
Representatives.
6. Covenants of the Company.
(A) The Company covenants and agrees as follows:
(a) The Company shall prepare the Prospectus in a form
approved by the Representatives and file such Prospectus pursuant to
Rule 424(b) under the Securities
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Act not later than the Commission's close of business on the second
business 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 shall promptly advise the
Representatives (i) when any amendment to the Registration Statement
shall have become effective, (ii) of any request by the Commission for
any amendment of the Registration Statement or the Prospectus or for
any additional information, (iii) of the prevention or suspension of
the use of any preliminary prospectus or the Prospectus or of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (iv) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company shall not file any amendment of the Registration Statement or
supplement to the Prospectus or any document that upon filing becomes
an Incorporated Document unless the Company has furnished the
Representatives a copy for its review prior to filing and shall not
file any such proposed amendment or supplement to which the
Representatives reasonably object. The Company shall use its best
efforts to prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares
is required to be delivered under the Securities Act and the Rules, any
event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend or supplement the
Prospectus (or to file under the Exchange Act any document which, upon
filing, becomes an Incorporated Document) to comply with the Securities
Act or the Rules, the Company promptly shall prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 6(A), an amendment or supplement which shall correct such
statement or omission or an amendment which shall effect such
compliance.
(c) The Company shall make generally available to its security
holders and to the Representatives as soon as practicable, but not
later than 45 days after the end of the 12-month period beginning at
the end of the fiscal quarter of the Company during which the Effective
Date occurs (or 90 days if such 12-month period coincides with the
Company's fiscal year), an earning statement (which need not be
audited) of the Company, covering such 12-month period, which shall
satisfy the provisions of Section 11(a) of the Securities Act or Rule
158 of the Rules.
(d) The Company shall furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including all exhibits thereto and amendments
thereof) and such number of copies of
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Incorporated Documents (including all exhibits thereto and amendments
thereof) as the Representatives may request, and shall furnish to each
other Underwriter a copy of the Registration Statement (without
exhibits thereto) and all amendments thereof and, so long as delivery
of a prospectus by an Underwriter or dealer may be required by the
Securities Act or the Rules, as many copies of any preliminary
prospectus and the Prospectus and any amendments thereof and
supplements thereto as the Representatives may reasonably request.
(e) The Company shall cooperate with the Representatives and
their counsel in endeavoring to qualify the Shares for offer and sale
under the laws of such jurisdictions as the Representatives may
designate and shall maintain such qualifications in effect so long as
required for the distribution of the Shares; provided, however, that
the Company shall not be required in connection therewith, as a
condition thereof, to qualify as a foreign corporation or to execute a
general consent to service of process in any jurisdiction or subject
itself to taxation as doing business in any jurisdiction.
(f) For a period of five years after the date of this
Agreement, the Company shall supply to the Representatives, and to each
other Underwriter who may so request in writing, copies of such
financial statements and other periodic and special reports as the
Company may from time to time distribute generally to the holders of
any class of its capital stock and shall furnish to the Representatives
a copy of each annual or other report it shall be required to file with
the Commission.
(g) Without the prior written consent of the Representatives,
for a period of 90 days after the date of this Agreement, the Company
shall not issue, sell, offer, contract to sell, make any short sale
pledge or register with the Commission (other than on Form S-8 or on
any successor form), or otherwise dispose of, directly or indirectly,
any equity securities of the Company (or any securities convertible
into or exchangeable or exercisable for equity securities of the
Company), except for the issuance of the Shares pursuant to the
Registration Statement and the issuance of shares pursuant to existing
stock option plans.
(h) On or before completion of the offering, the Company shall
make all filings required under applicable securities law and by the
Nasdaq National Market.
(B) The Company agree to pay, or reimburse if paid by the
Representatives, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses incident to
the public offering of the Shares and the performance of the obligations of the
Company and the Selling Stockholders under this Agreement including those
relating to: (i) the preparation, printing, filing and distribution of the
Registration Statement including all exhibits thereto, each preliminary
prospectus, the Prospectus, all amendments and supplements to the Registration
Statement and the
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Prospectus, and the printing, filing and distribution of this Agreement; (ii)
the preparation and delivery of certificates for the Shares to the Underwriters;
(iii) the registration or qualification of the Shares for offer and sale under
the securities laws of the various jurisdictions referred to in Section 6(A)(e),
including the reasonable fees and disbursements of counsel for the Underwriters
in connection with such registration and qualification and the preparation,
printing, distribution and shipment of preliminary and supplementary Blue Sky
memoranda; (iv) the furnishing (including costs of shipping and mailing) to the
Representatives and to the Underwriters of copies of each preliminary
prospectus, the Prospectus and all amendments or supplements to the Prospectus,
and of the several documents required by this Section 6 to be so furnished, as
may be reasonably requested for use in connection with the offering and sale of
the Shares by the Underwriters or by dealers to whom Shares may be sold; (v) the
filing fees of the National Association of Securities Dealers, Inc. in
connection with its review of the terms of the public offering; (vi) the
furnishing (including costs of shipping and mailing) to the Representatives and
to the Underwriters of copies of all reports and information required by Section
6(A)(f); (vii) inclusion of the Shares for quotation on the Nasdaq National
Market; and (viii) all transfer taxes, if any, with respect to the sale and
delivery of the Shares by the Company and the Selling Stockholders to the
Underwriters. Subject to the provisions of Section 9, the Underwriters agree to
pay, whether or not the transactions contemplated hereby are consummated or this
Agreement is terminated, all costs and expenses incident to the performance of
the obligations of the Underwriters under this Agreement not payable by the
Company pursuant to the preceding sentence.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act against any and all losses, claims, damages and
liabilities, joint or several (including any reasonable investigation,
legal and other expenses incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim
asserted), to which they, or any of them, may become subject under the
Securities Act, the Exchange Act or other Federal or state law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, the Registration
Statement or the Prospectus or any amendment thereof or supplement
thereto (or in any Incorporated Document), or arise out of or are based
upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that such indemnity shall
not inure to the benefit of any Underwriter (or any person controlling
such Underwriter) on account of any
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losses, claims, damages or liabilities (or actions in respect thereof)
arising from the sale of the Shares to any person by such Underwriter
if such untrue statement or omission or alleged untrue statement or
omission was made in such preliminary prospectus, the Registration
Statement or the Prospectus, or such amendment or supplement, in
reliance upon and in conformity with information furnished in writing
to the Company by the Representatives on behalf of any Underwriter
specifically for use therein; and provided, further, that the Company
shall not be liable to any Underwriter with respect to any preliminary
prospectus or any preliminary prospectus supplement, to the extent that
any such loss, claim, damage or liability of such Underwriter results
solely form an untrue statement of a material fact contained in, or the
omission of a material fact from, such preliminary prospectus, which
untrue statement or omission was corrected in the Prospectus, if the
Company shall sustain the burden of proving that (i) such Underwriter
sold Shares to the person alleging such loss, claim, damage or
liability without sending or giving or making available electronically,
at or prior to the written confirmation of such sale, a copy of the
Prospectus to such person, (ii) delivery of a Prospectus was required
under the Securities Act, and (iii) the Company delivered to such
Underwriter copies of such Prospectus in such quantities as it shall
have reasonably required. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Selling Stockholder agrees, severally and not
jointly, to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
against any losses, claims, damages and liabilities, joint or several
(including any reasonable investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claim asserted), to which they, or
any of them, may become subject under the Securities Act, the Exchange
Act or other Federal or state law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
any preliminary prospectus, the Registration Statement, the Prospectus
or any amendment thereof or supplement thereto (or in any Incorporated
Document), or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that such indemnity shall not inure to the benefit
of any Underwriter (or any person controlling such Underwriter) on
account of any losses, claims, damages or liabilities (or actions in
respect thereof) arising from the sale of the Shares to any person by
such Underwriter if such untrue statement or omission or alleged untrue
statement or omission was made in such preliminary prospectus, the
Registration Statement or the Prospectus, or such amendment or
supplement, in reliance upon and in conformity with information
furnished in writing to the Company by the Representatives on behalf of
any Underwriter specifically for use therein; and provided
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further that the obligation of each Selling Stockholder to indemnify
the Underwriters (and any controlling persons thereof) shall be limited
to the net proceeds received by such Selling Stockholder from the
Underwriters hereunder. This indemnity agreement will be in addition to
any liability which the Selling Stockholders may otherwise have.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, each person, if any, who
controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, each director of the Company,
each officer of the Company who signs the Registration Statement and
each Selling Stockholder to the same extent as the foregoing indemnity
from the Company and each Selling Stockholder to each Underwriter, but
only insofar as such losses, claims, damages or liabilities arise out
of or are based upon any untrue statement or omission or alleged untrue
statement or omission which was made in any preliminary prospectus, the
Registration Statement or the Prospectus, or any amendment thereof or
supplement thereto, contained in the paragraphs relating to
stabilization and passive market making on the inside front cover page
of the Prospectus and the statements contained under the caption
"Underwriting" in the Prospectus; provided, however, that the
obligation of each Underwriter to indemnify the Company (including any
controlling person, director or officer thereto) and each Selling
Stockholder shall be limited to the net proceeds received by the
Company and each such Selling Stockholder from such Underwriter
hereunder.
(d) Any party that proposes to assert the right to be
indemnified under this Section 7 will, promptly after receipt of notice
of commencement of any action, suit or proceeding against such party in
respect of which a claim is to be made against an indemnifying party or
parties under this Section 7, notify each such indemnifying party of
the commencement of such action, suit or proceeding, enclosing a copy
of all papers served. No indemnification provided for in Section 7(a),
7(b) or 7(c) shall be available to any party who shall fail to give
notice as provided in this Section 7(d) if the party to whom notice was
not given was unaware of the proceeding to which such notice would have
related and was prejudiced by the failure to give such notice but the
omission so to notify such indemnifying party of any such action, suit
or proceeding shall not relieve it from any liability that it may have
to any indemnified party for contribution or otherwise than under this
Section 7. In case any such action, suit or proceeding shall be brought
against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and
the approval by the indemnified party of such counsel, the indemnifying
party shall not be liable to such indemnified party for any legal or
other expenses,
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except as provided below and except for the reasonable costs of
investigation subsequently incurred by such indemnified party in
connection with the defense thereof. The indemnified party shall have
the right to employ its counsel in any such action, but the fees and
expenses of such counsel shall be at the expense of such indemnified
party unless (i) the employment of counsel by such indemnified party
has been authorized in writing by the indemnifying parties, (ii) the
indemnified party shall have reasonably concluded that there may be a
conflict of interest between the indemnifying parties and the
indemnified party in the conduct of the defense of such action (in
which case the indemnifying parties shall not have the right to direct
the defense of such action on behalf of the indemnified party) or (iii)
the indemnifying parties shall not have employed counsel to assume the
defense of such action within a reasonable time after notice of the
commencement thereof, in each of which cases the fees and expenses of
counsel shall be at the expense of the indemnifying parties. An
indemnifying party shall not be liable for any settlement of any
action, suit, proceeding or claim effected without its written consent
(which consent shall not be unreasonably withheld or delayed).
8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Sections 7(a) and 7(b) is due in accordance with its terms but for any reason is
held to be unavailable from the Company or the Selling Stockholders, the
Company, the Selling Stockholders and the Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities (including any investigation,
legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claims asserted,
but after deducting any contribution received by the Company or the Selling
Stockholders from persons other than the Underwriters, such as persons who
control the Company within the meaning of the Securities Act, officers of the
Company who signed the Registration Statement and directors of the Company, who
may also be liable for contribution) to which the Company, the Selling
Stockholders and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the Shares or, if such allocation is not permitted by
applicable law or indemnification is not available as a result of the
indemnifying party not having received notice as provided in Section 7 hereof,
in such proportion as is appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company and the Selling
Stockholders on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by, as applicable, the Company, the Selling
Stockholders and the Underwriters shall be deemed to be in the same proportion
as (x) the total proceeds from the offering (net of underwriting discounts but
before deducting expenses) received by the Company or by the Selling
Stockholders, as set forth in the table on the cover page of the Prospectus,
bear to (y) the underwriting discounts received by the Underwriters, as set
forth in the table on the cover page of the Prospectus.
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The relative fault of the Company and the Selling Stockholders or the
Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact related to information
supplied by the Company, the Selling Stockholders or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Selling
Stockholders and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 8 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
equitable considerations referred to above. Notwithstanding the provisions of
this Section 8, (i) in no case shall any Underwriter be liable or responsible
for any amount in excess of the underwriting discount applicable to the Shares
purchased by such Underwriter hereunder, and (ii) the Company and the Selling
Stockholders shall be liable and responsible for any amount in excess of such
underwriting discount; provided, however, that 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. For purposes of this Section 8, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person, if any, who controls the
Company within the meaning of the Section 15 of the Securities Act or Section 20
of the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (i) and
(ii) in the immediately preceding sentence of this Section 8. Any party entitled
to contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section 8,
notify such party or parties from whom contribution may be sought, but the
omission so to notify such party or parties from whom contribution may be sought
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
Section 8. No party shall be liable for contribution with respect to any action,
suit, proceeding or claim settled without its written consent (which consent
shall not be unreasonably withheld or delayed). The Underwriters' obligations to
contribute pursuant to this Section 8 are several in proportion to their
respective underwriting commitments and not joint.
9. Termination. This Agreement may be terminated with respect
to the Shares to be purchased on a Closing Date by the Representatives by
notifying the Company and the Selling Stockholders, at any time,
(a) in the absolute discretion of the Representatives at or
before any Closing Date: (i) if on or prior to such date, 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 in the United States; (ii) if there has
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occurred any new outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial markets
of the United States is such as to make it, in the judgment of the
Representatives, inadvisable to proceed with the offering; (iii) if
there shall be such a material adverse change in general financial,
political or economic conditions or the effect of international
conditions on the financial markets in the United States is such as to
make it, in the judgment of the Representatives, inadvisable or
impracticable to market the Shares; (iv) if trading in the Shares has
been suspended by the Commission or trading generally on the New York
Stock Exchange, on the American Stock Exchange or on the Nasdaq
National Market has been suspended or limited, or minimum or maximum
ranges for prices for securities shall have been fixed, or maximum
ranges for prices for securities have been required, by said exchanges
or by order of the Commission, the National Association of Securities
Dealers, Inc., or any other governmental or regulatory authority; or
(v) if a banking moratorium has been declared by any state or Federal
authority, or
(b) at or before any Closing Date, that any of the conditions
specified in Section 5 shall not have been fulfilled when and as
required by this Agreement.
If this Agreement is terminated pursuant to any of its
provisions, the Company and the Selling Stockholders shall not be under any
liability to any Underwriter, and no Underwriter shall be under any liability to
the Company and the Selling Stockholders, except that (y) if this Agreement is
terminated by the Representatives or the Underwriters because of any failure,
refusal or inability on the part of the Company or the Selling Stockholders to
comply with the terms or to fulfill any of the conditions of this Agreement, the
Company and the Selling Stockholders will reimburse the Underwriters for all
out-of-pocket expenses (including the reasonable fees and disbursements of their
counsel) incurred by them in connection with the proposed purchase and sale of
the Shares or in contemplation of performing their obligations hereunder and (z)
no Underwriter who shall have failed or refused to purchase the Shares agreed to
be purchased by it under this Agreement, without some reason sufficient
hereunder to justify cancellation or termination of its obligations under this
Agreement, shall be relieved of liability to the Company, the Selling
Stockholders or the other Underwriters for damages occasioned by its failure or
refusal.
10. Substitution of Underwriters. If one or more of the
Underwriters shall fail (other than for a reason sufficient to justify the
cancellation or termination of this Agreement under Section 9) to purchase on
any Closing Date the Shares agreed to be purchased on such Closing Date by such
Underwriter or Underwriters, the Representatives may find one or more substitute
underwriters to purchase such Shares or make such other arrangements as the
Representatives may deem advisable or one or more of the remaining Underwriters
may agree to purchase such Shares in such proportions as may be approved by the
Representatives, in each case upon the terms set forth in this Agreement. If no
such arrangements have been made by the close of business on the business day
following such Closing Date,
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(a) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall not exceed 10% of the Shares
that all the Underwriters are obligated to purchase on such Closing
Date, then each of the nondefaulting Underwriters shall be obligated to
purchase such Shares on the terms herein set forth in proportion to
their respective obligations hereunder; provided, that in no event
shall the maximum number of Shares that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this Section 10
by more than one-ninth of such number of Shares without the written
consent of such Underwriter, or
(b) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date,
then the Company shall be entitled to an additional business day within
which it may, but is not obligated to, find one or more substitute
underwriters reasonably satisfactory to the Representatives to purchase
such Shares upon the terms set forth in this Agreement.
In any such case, either the Representatives or the Company shall have
the right to postpone the applicable Closing Date for a period of not more than
five business days in order that necessary changes and arrangements (including
any necessary amendments or supplements to the Registration Statement or
Prospectus) may be effected by the Representatives and the Company. If the
number of Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters shall exceed 10% of the Shares that all the
Underwriters are obligated to purchase on such Closing Date, and none of the
nondefaulting Underwriters or the Company shall make arrangements pursuant to
this Section within the period stated for the purchase of the Shares that the
defaulting Underwriters agreed to purchase, this Agreement shall terminate with
respect to the Shares to be purchased on such Closing Date without liability on
the part of any nondefaulting Underwriter to the Company and without liability
on the part of the Company and the Selling Stockholders, except in both cases as
provided in Sections 6(B), 7, 8 and 9. The provisions of this Section 10 shall
not in any way affect the liability of any defaulting Underwriter to the
Company, the Selling Stockholders or the nondefaulting Underwriters arising out
of such default. A substitute underwriter hereunder shall become an Underwriter
for all purposes of this Agreement.
11. Default of Selling Stockholders. Failure or refusal by any
of the Selling Stockholders to sell and deliver on the Closing Date the Shares
agreed to be sold and delivered by such Selling Stockholder shall in no manner
relieve the other Selling Stockholders or the Company of their respective
obligations under this Agreement. If any Selling Stockholder should fail or
refuse to sell and deliver his or its Shares, the remaining Selling Stockholders
shall have the right hereby granted to increase, pro rata or otherwise, the
number of Shares to be sold by them hereunder to the total number of Shares to
be sold by all Selling Stockholders as set forth in Schedule I. If the remaining
Selling Stockholders do not fully exercise the right to increase the number of
Shares to be sold by them, the Underwriters, at your option, will
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have the right to elect to purchase or not to purchase the Shares to be sold by
the Company and the remaining Selling Stockholders. In the event the
Underwriters purchase the Shares of the Company and such other Selling
Stockholders pursuant to this Section 11, the Closing Date shall be postponed
for a period of not more than five business days in order that the Registration
Statement and Prospectus or other documents may be amended or supplemented if
and to the extent necessary under the provisions of the Act and the Rules and
Regulations or under the securities laws of any jurisdiction. If the
Underwriters determine not to purchase the Shares of the Company and the other
Selling Stockholders, if any, this Agreement shall terminate and neither the
Company nor the Underwriters nor any other Selling Stockholder shall be under
any obligation under this Agreement except as provided in Sections 6(B), 7, 8
and 9.
12. Miscellaneous. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its officers, of
the Selling Stockholders and of the Underwriters set forth in or made pursuant
to this Agreement shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Selling
Stockholders, the Company or any of the officers, directors or controlling
persons referred to in Sections 7 and 8 hereof, and shall survive delivery of
and payment for the Shares. The provisions of Sections 6(B), 7, 8 and 9 shall
survive the termination or cancellation of this Agreement.
This Agreement has been and is made for the benefit of the
Underwriters, the Company and the Selling Stockholders and their respective
successors and assigns, and, to the extent expressed herein, for the benefit of
persons controlling any of the Underwriters or the Company, and directors and
officers of the Company, and their respective successor and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchaser of
Shares from any Underwriter merely because of such purchase.
All notices and communications hereunder shall be in writing and mailed
or delivered or by telephone or telegraph if subsequently confirmed in writing,
(a) if to the Representatives, c/o CIBC Xxxxxxxxxxx Corp., Xxxxxxxxxxx Tower,
World Financial Center, New York, New York 10281 Attention: Equity Syndicate,
(b) if to the Company, to its agent for service as such agent's address appears
on the cover page of the Registration Statement and (c) if to the Selling
Stockholders, to
---------------------------.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of conflict of
laws.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
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Please confirm that the foregoing correctly sets forth the agreement
among us.
Very truly yours,
ANAREN MICROWAVE, INC.
By
------------------------------
Title:
SELLING STOCKHOLDERS
By:
------------------------------
as Attorney-in-Fact
By:
------------------------------
as Attorney-in-Fact
Confirmed:
CIBC Xxxxxxxxxxx Corp.
----------------------------
Acting severally on behalf of itself
and as representative of the several
Underwriters named in Schedule II annexed
hereto.
By CIBC Xxxxxxxxxxx Corp.
By
------------------------
Title:
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SCHEDULE I
Selling Stockholders
Number of Number of
Firm Shares Option Shares
Name to be Sold to be Sold
---- ---------- ----------
--------------- ----------------
TOTAL
=============== ================
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SCHEDULE II
Number of
Firm Shares to
Name be Purchased
---- ------------
CIBC Xxxxxxxxxxx Corp.
Xxxxxxx & Company, Inc.
Pacific Growth Equities, Inc.
------------
Total
============
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