Draft of January 17, 1997
3,200,000 Shares
SAFESKIN CORPORATION
Common Stock
UNDERWRITING AGREEMENT
----------------------
, 1997
XXXXX XXXXXX INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
As Representatives of the Several Underwriters
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The persons named in Schedule I hereto as selling
shareholders (the "Selling Shareholders") severally propose to sell to the
several underwriters named in Schedule II hereto (the "Underwriters") an
aggregate of 3,200,000 shares (the "Firm Shares") of common stock, par value
$.01 per share (the "Common Stock"), of Safeskin Corporation, a Florida
corporation (the "Company"). In addition, solely for the purpose of covering
over-allotments, the Selling Shareholders severally propose to sell to the
Underwriters, upon the terms and conditions set forth in Section 2 hereof, up
to an additional 480,000 shares (the "Additional Shares") of Common Stock. The
Firm Shares and the Additional Shares are hereinafter collectively referred to
as the "Shares." The Company and the Selling Shareholders are hereinafter
sometimes referred to as the "Sellers."
The Company and the Selling Shareholders wish to confirm as
follows their agreement with you (the "Representatives") and the other several
Underwriters on whose behalf you are acting, in connection with the several
purchases of the Shares by the Underwriters.
1. Registration Statement and Prospectus. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-3 under the Act (the "registration
statement"), including a prospectus subject to completion, relating to the
Shares. The term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and exhibits) as
amended at the time it becomes effective or, if the registration statement
became effective prior to the execution of this Agreement, as supplemented or
amended prior to the execution of this Agreement. If it is contemplated, at the
time this Agreement is executed, that a post-effective amendment to the
registration statement will be filed and must be declared effective before the
offering of the Shares may commence, the term "Registration Statement" as used
in this Agreement means the registration statement as amended by said
post-effective amendment. If an abbreviated registration statement relating to
the offering of the Shares is prepared and filed with the Commission in
accordance with Rule 462(b) under the Act (an "Abbreviated Registration
Statement"), the term "Registration Statement" as used in this Agreement
includes the Abbreviated Registration Statement. The term "Prospectus" as used
in this Agreement means the prospectus in the form included in the Registration
Statement, or, if the prospectus included in the Registration Statement omits
information in reliance on Rule 430A under the Act and such information is
included in a prospectus filed with the Commission pursuant to Rule 424(b)
under the Act, the term "Prospectus" as used in this Agreement means the
prospectus in the form included in the Registration Statement as supplemented
by the addition of the Rule 430A information contained in the prospectus filed
with the Commission pursuant to Rule 424(b). The term "Prepricing Prospectus"
as used in this Agreement means the prospectus subject to completion in the
form included in the registration statement at the time of the initial filing
of the registration statement with the Commission and as such prospectus shall
have been amended from time to time prior to the date of the Prospectus.
2. Agreements to Sell and Purchase. Subject to such adjustments as you
may determine to avoid fractional shares, each of the Selling Shareholders
agrees, subject to all the terms and conditions set forth herein, to sell to
the respective Underwriters the number of Firm Shares set forth opposite the
name of such Selling Shareholder on Schedule I hereto and, upon the basis of
the representations, warranties and agreements of the Sellers herein contained
and subject to all the terms and conditions set forth herein, each Underwriter
agrees, severally and not jointly, to purchase from each Selling Shareholder,
at a purchase price of $ per share (the "purchase price per share"), that
number of Firm Shares which bears the same proportion to the number of Firm
Shares set forth opposite the name of such Selling Shareholder in Schedule I
hereto as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule II hereto (or such number of Firm Shares increased as
set forth in Section 12 hereof) bears to the aggregate number of Firm Shares to
be sold by the Selling Shareholders.
Each of the Selling Shareholders listed in Schedule I hereto
also agrees, subject to all the terms and conditions set forth herein, to sell
to the Underwriters, and, upon the basis of the representations, warranties and
agreements of the Sellers herein contained and subject to all the terms and
conditions set forth herein, the Underwriters shall have the right to purchase
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from the Selling Shareholders listed in Schedule I hereto, at the purchase
price per share, pursuant to an option (the "over-allotment option") which may
be exercised at any time and from time to time prior to 9:00 p.m., New York
City time, on the 30th day after the date of the Prospectus (or, if such 30th
day shall be a Saturday or Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange is open for trading), up to an
aggregate of 480,000 Additional Shares from the Selling Shareholders listed in
Schedule I hereto. Additional Shares may be purchased solely to cover
over-allotments made in connection with the offering of the Firm Shares. Upon
any exercise of the over-allotment option, each Underwriter, severally and not
jointly, agrees to purchase from the Selling Shareholders the number of
Additional Shares (subject to such adjustments as you may determine in order to
avoid fractional shares) which bears the same proportion to the number of
Additional Shares to be purchased by the Underwriters as the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule II hereto
(or such number of Firm Shares increased as set forth in Section 12 hereof)
bears to the aggregate number of Firm Shares.
Certificates in transferable form for the Shares that each of
the Selling Shareholders agrees to sell pursuant to this Agreement have been
placed in custody with [_______] (the "Custodian") for delivery under this
Agreement pursuant to a Custody Agreement and Power of Attorney (the "Custody
Agreement") executed by each of the Selling Shareholders appointing [_______]
and [_______] as agents and attorneys-in-fact (the "Attorneys-in-Fact"). Each
Selling Shareholder agrees that (i) the Shares represented by the certificates
held in custody pursuant to the Custody Agreement are subject to the interests
of the Underwriters, the Company and each other Selling Shareholder, (ii) the
arrangements made by the Selling Shareholders for such custody are, except as
specifically provided in the Custody Agreement, irrevocable and (iii) the
obligations of the Selling Shareholders hereunder and under the Custody
Agreement shall not be terminated by any act of such Selling Shareholder or by
operation of law, whether by the death or incapacity of any Selling Shareholder
or the occurrence of any other event. If any Selling Shareholder shall die or
be incapacitated or if any other event shall occur before the delivery of the
shares hereunder, certificates for the Shares to be sold by such Selling
Shareholder shall be delivered to the Underwriters by the Attorneys-in-Fact in
accordance with the terms and conditions of this Agreement and the Custody
Agreement as if such death or incapacity or other event had not occurred,
regardless of whether or not the Attorneys-in-Fact or any Underwriter shall
have received notice of such death, incapacity or other event. Each
Attorney-in-Fact represents that he is authorized, on behalf of each of the
Selling Shareholders, to execute this Agreement and any other documents
necessary or desirable in connection with the sale and public offering of such
Shares, to distribute the balance thereof to such Selling Shareholder, and to
take such other actions as may be necessary or desirable in connection with the
transactions contemplated by this Agreement. Each Attorney-in-Fact agrees to
perform his duties under the Custody Agreement.
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3. Terms of Public Offering. The Sellers have been advised by you that
the Underwriters propose to make a public offering of their respective portions
of the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable and initially to offer the
Shares upon the terms set forth in the Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to the
Underwriters of and payment for the Firm Shares shall be made at the office of
Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00
A.M., New York City time, on , 1997 (the "Closing Date"). The place of
closing for the Firm Shares and the Closing Date may be varied by agreement
among you, the Company and the Attorneys-in-Fact.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at the aforementioned office
of Xxxxx Xxxxxx Inc. at such time on such date (the "Option Closing Date"),
which may be the same as the Closing Date but shall in no event be earlier than
the Closing Date nor earlier than two nor later than ten business days after
the giving of the notice hereinafter referred to, as shall be specified in a
written notice from you on behalf of the Underwriters to the Company of the
Underwriters' determination to purchase a number, specified in such notice, of
Additional Shares. The place of closing for any Additional Shares and the
Option Closing Date for such Shares may be varied by agreement between you and
the Company.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request by written notice, it being understood that a facsimile
transmission shall be deemed written notice, prior to 9:30 A.M., New York City
time, on the second business day preceding the Closing Date or any Option
Closing Date, as the case may be. Such certificates shall be made available to
you in New York City for inspection and packaging not later than 9:30 A.M., New
York City time, on the business day next preceding the Closing Date or the
Option Closing Date, as the case may be. The certificates evidencing the Firm
Shares and any Additional Shares to be purchased hereunder shall be delivered
to you on the Closing Date or the Option Closing Date, as the case may be,
against payment of the purchase price therefor in immediately available funds.
5. Agreements of the Company. The Company agrees with the several
Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or a post-effective amendment
thereto or any Abbreviated Registration Statement to be declared or, in the
case of an Abbreviated Registration Statement, to become effective before the
offering of the Shares may commence, the Company will endeavor to cause the
Registration Statement or such post-effective amendment or Abbreviated
Registration Statement to become effective as soon as possible and will advise
you promptly and, if requested by you, will confirm such advice in writing,
when the Registration Statement or such post-effective amendment or Abbreviated
Registration Statement has become effective.
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(b) The Company will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) of any request by the Commission
for amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information; (ii) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of the suspension of qualification of the Shares
for offering or sale in any jurisdiction or the initiation of any proceeding
for such purpose; and (iii) within the period of time referred to in paragraph
(f) below, of any change in the Company's condition (financial or other),
business, prospects, properties, net worth or results of operations, or of the
happening of any event, which makes any statement of a material fact made in
the Registration Statement or the Prospectus (as then amended or supplemented)
untrue or which requires the making of any additions to or changes in the
Registration Statement or the Prospectus (as then amended or supplemented) in
order to state a material fact required by the Act or the regulations
thereunder to be stated therein or necessary in order to make the statements
therein not misleading in any material respect, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to comply with the
Act or any other law. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will
make every reasonable effort to obtain the withdrawal of such order at the
earliest possible time.
(c) The Company will furnish to you, without charge, one
signed copy of the Registration Statement as originally filed with the
Commission and of each amendment thereto, including financial statements and
all exhibits to the Registration Statement and will also furnish to you,
without charge, such number of conformed copies of the Registration Statement
as originally filed and of each amendment thereto, but without exhibits, as you
may request.
(d) The Company will not (i) file any amendment to the
Registration Statement or make any amendment or supplement to the Prospectus of
which you shall not previously have been advised or to which you shall object
after being so advised or (ii) so long as, in the opinion of counsel for the
Underwriters, a prospectus is required to be delivered in connection with sales
by any Underwriter or dealer, file any information, documents or reports
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), without delivering a copy of such information, documents or reports to
you, as Representatives of the Underwriters, prior to or concurrently with such
filing.
(e) Prior to the execution and delivery of this Agreement,
the Company has delivered or will deliver to you, without charge, in such
quantities as you have requested or may hereafter request, copies of each form
of the Prepricing Prospectus. The Company consents to the use, in accordance
with the provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Shares are offered by the several Underwriters and
by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus
so furnished by the Company.
(f) As soon after the execution and delivery of this
Agreement as possible and thereafter from time to time for such period as in
the opinion of counsel for the Underwriters a prospectus is required by the Act
to be delivered in connection with sales by any Underwriter or dealer, the
Company will expeditiously deliver to each Underwriter and each dealer, without
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charge, as many copies of the Prospectus (and of any amendment or supplement
thereto) as you may request. The Company consents to the use of the Prospectus
(and of any amendment or supplement thereto) in accordance with the provisions
of the Act and with the securities or Blue Sky laws of the jurisdictions in
which the Shares are offered by the several Underwriters and by all dealers to
whom Shares may be sold, both in connection with the offering and sale of the
Shares and for such period of time thereafter as the Prospectus is required by
the Act to be delivered in connection with sales by any Underwriter or dealer.
If during such period of time any event shall occur that in the judgment of the
Company or in the opinion of counsel for the Underwriters is required to be set
forth in the Prospectus (as then amended or supplemented) or should be set
forth therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
to supplement or amend the Prospectus to comply with the Act or any other law,
the Company will forthwith prepare and, subject to the provisions of paragraph
(d) above, file with the Commission an appropriate supplement or amendment
thereto and will expeditiously furnish copies thereof to the Underwriters and
dealers in such quantities as you shall request. In the event that the Company
and you, as Representatives of the several Underwriters, agree that the
Prospectus should be amended or supplemented, the Company, if requested by you,
will promptly issue a press release announcing or disclosing the matters to be
covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel for
the Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers under
the securities or Blue Sky laws of such jurisdictions as you may designate and
will file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; provided,
however, that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Shares, in any jurisdiction where it
is not now so subject.
(h) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited, covering
a twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as
practicable after the end of such period, which consolidated earnings statement
shall satisfy the provisions of Section 11(a) of the Act.
(i) During the period of five years hereafter, the Company
will furnish to you (i) as soon as available, a copy of each report of the
Company mailed to shareholders or filed with the Commission, and (ii) from time
to time such other information concerning the Company as you may reasonably
request.
(j) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than pursuant to
the second paragraph of Section 12 hereof or by notice given by you terminating
this Agreement pursuant to Section 12 or Section 13 hereof), or if this
Agreement shall be terminated by the Underwriters because of any
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failure or refusal on the part of the Company or the Selling Shareholders to
comply with the terms or fulfill any of the conditions of this Agreement, the
Company agrees to reimburse the Representatives for all out-of-pocket expenses
(including fees and expenses of counsel for the Underwriters) incurred by you
in connection herewith.
(k) If Rule 430A of the Act is employed, the Company will
timely file the Prospectus pursuant to Rule 424(b) under the Act and will
advise you of the time and manner of such filing.
(l) The Company will not (and will not announce or otherwise
disclose any intention to) offer to sell, contract to sell, sell or otherwise
transfer or dispose of, or grant any option or warrant to purchase, any shares
of Common Stock (or any securities convertible into or exercisable or
exchangeable for Common Stock) for a period of 90 days after the date of the
Prospectus (the "Lock-up Period") without the prior written consent of Xxxxx
Xxxxxx Inc.; provided, however, that the Company shall be entitled, without the
consent of Xxxxx Xxxxxx Inc., to (i) issue shares of Common Stock upon exercise
of options or warrants disclosed to be outstanding in the Prospectus and (ii)
grant stock options pursuant to plans or arrangements currently in effect that
are disclosed in the Registration Statement and the Prospectus.
(m) The Company has furnished or will furnish to you
"lock-up" letters, in form and substance satisfactory to you, signed by each of
its current officers and directors and each of its shareholders appearing in
the "Principal and Selling Shareholders" table in the Prospectus.
(n) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, the Company has not taken, nor will it take,
directly or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of the Shares.
6. Agreements of the Selling Shareholders. Each of the Selling
Shareholders agrees with the several Underwriters as follows:
(a) Such Selling Shareholder will cooperate to the extent
necessary to cause the registration statement, any Abbreviated Registration
Statement or any post-effective amendment thereto to become effective at the
earliest possible time.
(b) Such Selling Shareholder will pay all federal and other
taxes, if any, on the transfer or sale of any Shares that are sold by such
Selling Shareholder to the Underwriters.
(c) Such Selling Shareholder will do or perform all things
reasonably required to be done or performed by such Selling Shareholder prior
to the Closing Date to satisfy all conditions precedent to the delivery of the
Shares by such Selling Shareholder pursuant to this Agreement.
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(d) Such Selling Shareholder will not (and will not announce
or otherwise disclose any intention to) offer to sell, contract to sell, sell
or otherwise transfer or dispose of, or grant any option to purchase, any
shares of Common Stock (or any securities convertible or exercisable or
exchangeable for Common Stock), or exercise any registration rights with
respect to the sale of Common Stock, except for the sale of Shares to the
Underwriters pursuant to this Agreement, without the prior written consent of
Xxxxx Xxxxxx Inc. for a period of 90 days after the date of the Prospectus.
(e) Except as stated in this Agreement and in the Prepricing
Prospectus and the Prospectus, such Selling Shareholder will not take, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
(f) Such Selling Shareholder will advise you promptly, and if
requested by you, will confirm such advice in writing, within the period of
time referred to in Section 5(f) hereof, of any change in information relating
to such Selling Shareholder and of any change in the Company's condition
(financial or other), business, prospects, properties, net worth or results of
operations or any other information relating to the Company or relating to any
matter stated in the Prospectus or any amendment or supplement thereto that
comes to the attention of such Selling Shareholder that suggests that any
statement of a material fact made in the Registration Statement or the
Prospectus (as then amended or supplemented, if amended or supplemented) is or
may be untrue in any material respect or that the Registration Statement or
Prospectus (as then amended or supplemented, if amended or supplemented) omits
or may omit to state a material fact or a fact necessary to be stated therein
in order to make the statements therein not misleading in any material respect.
(g) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982, as amended, with respect to the transactions herein
contemplated, such Selling Shareholder agrees to deliver to you prior to or on
the Closing Date a properly completed and executed United States Treasury
Department Form W-9 if required by Treasury Department regulations (or any
other applicable form or statement specified by Treasury Department regulations
in lieu thereof).
7. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the
registration statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act, complied when
so filed in all material respects with the provisions of the Act. The
Commission has not issued any order preventing or suspending the use of any
Prepricing Prospectus.
(b) The Company meets the requirements for use of Form S-3
under the Act. The registration statement in the form in which it became or
becomes effective and also in such form as it may be when any post-effective
amendment thereto shall become effective and the
8
Prospectus and any supplement or amendment thereto when filed with the
Commission under Rule 424(b) under the Act, complied or will comply in all
material respects with the provisions of the Act and did not or will not at any
such times contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that this representation and warranty does not apply to
statements in or omissions from the registration statement or the prospectus
made in reliance upon and in conformity with the information relating to any
Underwriter furnished to the Company in writing by or on behalf of any
Underwriter through you expressly for use therein.
(c) The incorporated documents, listed under "Incorporation
of Certain Documents by Reference" in the Prospectus, heretofore filed were
filed in a timely manner and, when they were filed (or, if any amendment with
respect to any such document was filed, when such document was filed),
conformed with the requirements of the Exchange Act and did not contain an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and any
further Incorporated Documents will, when so filed, be filed in a timely manner
and conform with the requirements of the Exchange Act and will not contain an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(d) All the outstanding shares of capital stock of the
Company have been duly authorized and validly issued, are fully paid and
nonassessable, are free of any preemptive or similar rights (other than such
rights as shall terminate upon completion of, and be inapplicable to, the
offering contemplated hereby) and have been issued and sold in compliance with
all Federal and state securities laws. The capital stock of the Company
conforms in all material respects to the description thereof incorporated by
reference in the Registration Statement and the Prospectus.
(e) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus, and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify would not
have a material adverse effect on the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Company and
the Subsidiaries (as defined below), taken as a whole (a "Material Adverse
Effect").
(f) All of the Company's subsidiaries (as defined in the Act)
are referred to herein individually as a "Subsidiary" and collectively as the
"Subsidiaries." For purposes of this Agreement, a "Material Subsidiary" shall
mean any Subsidiary of the Company (i) the assets of which represented more
than 5% of the consolidated assets of the Company at December 31, 1995, (ii)
the pre-tax income of which represented more than 5% of the consolidated
pre-tax
9
income of the Company for the Company's most recent fiscal year, (iii) the
revenues of which represented more than 5% of the consolidated revenues of the
Company for the Company's most recent fiscal year or (iv) which is listed in
Schedule III hereto. Each Subsidiary is a corporation duly organized, validly
existing and in good standing in the jurisdiction of its incorporation, with
full corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and the
Prospectus and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration, except
where the failure so to register or qualify would not have a Material Adverse
Effect. All the outstanding shares of capital stock of each of the Subsidiaries
have been duly authorized and validly issued, are fully paid and nonassessable
and are wholly-owned by the Company directly or indirectly through one of the
other Subsidiaries, free and clear of any lien, adverse claim, security
interest, equity or other encumbrance, except as disclosed in the Registration
Statement and the Prospectus (or any amendment or supplement thereto).
(g) There are no legal or governmental proceedings pending
or, to the knowledge of the Company, threatened, against the Company or any of
the Subsidiaries, or to which the Company or any of the Subsidiaries or any of
their respective properties is subject, that are required to be described in
the Registration Statement or the Prospectus but are not described as required.
There are no agreements, contracts, indentures, leases or other instruments
that are required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement that are
not described or filed as required by the Act.
(h) Neither the Company nor any of the Material Subsidiaries
is (i) in violation of its certificate of incorporation or by-laws or other
organizational documents, or of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of the
Material Subsidiaries or of any decree of any court or governmental agency or
body having jurisdiction over the Company or any of the Material Subsidiaries
other than violations that would not have a Material Adverse Effect, or (ii) in
default in any material respect in the performance of any obligation, agreement
or condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any material agreement, indenture, lease or other instrument
to which the Company or any of the Material Subsidiaries is a party or by which
any of them or any of their respective properties may be bound other than
defaults that would not have a Material Adverse Effect.
(i) Neither the execution, delivery or performance of this
Agreement by the Company nor the consummation by the Company of the
transactions contemplated hereby (i) requires any consent, approval,
authorization or other order of, or registration or filing with, any court,
regulatory body, administrative agency or other governmental body, agency or
official (except such as may be required for the registration of the Shares
under the Act and the Exchange Act, all of which have been or will be effected
in accordance with this Agreement, and compliance with the securities or Blue
Sky laws of various jurisdictions and the clearance of the offering with the
National Association of Securities Dealers, Inc. (the "NASD")) or conflicts or
will conflict with or constitutes or will constitute a breach of, or a default
under, the
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certificate of incorporation or bylaws, or other organizational documents, of
the Company or any of the Material Subsidiaries or (ii) conflicts or will
conflict with or constitutes or will constitute a breach of, or a default
under, any indenture, bond, note, lease or other agreement or instrument to
which the Company or any of the Material Subsidiaries is a party or by which
the Company or any of the Material Subsidiaries or any of their respective
properties may be bound, or violates or will violate any statute, law,
regulation or filing or judgment, injunction, order or decree applicable to the
Company or any of the Material Subsidiaries or any of their respective
properties, or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of the Material
Subsidiaries pursuant to the terms of any agreement or instrument to which any
of them is a party or by which any of them may be bound or to which any of
their respective property or assets is subject.
(j) The accountants, Coopers & Xxxxxxx, who have certified or
shall certify the financial statements incorporated by reference in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto), are independent public accountants as required by the Act.
(k) The financial statements, together with the related
schedules and notes incorporated by reference in the Registration Statement and
the Prospectus (and any amendment or supplement thereto), comply in all
material respects with the requirements of the Act and present fairly the
consolidated financial position, results of operations and changes in
shareholders' equity and cash flows of the Company and the Subsidiaries on the
basis incorporated by reference in the Registration Statement at the respective
dates or for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and statistical
information and data set forth in the Registration Statement and the Prospectus
(and any amendment or supplement thereto) are accurately presented and prepared
on a basis consistent with such financial statements and the books and records
of the Company and the Subsidiaries.
(l) The Company has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement. The
execution and delivery of, and the performance by the Company of its
obligations under, this Agreement have been duly and validly authorized by the
Company. This Agreement has been duly executed and delivered by the Company and
constitutes the valid and legally binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as rights to indemnity
and contribution hereunder may be limited by federal or state securities laws
or principles of public policy and subject to the qualification that the
enforceability of the Company's obligations hereunder may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and by general
equitable principles.
11
(m) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto), neither
the Company nor any of the Subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction that is
material to the Company and the Subsidiaries, taken as a whole, and there has
not been any material change in the capital stock, or material increase in the
consolidated short-term or long-term debt, of the Company and the Subsidiaries,
or any Material Adverse Effect, or any development having or which may
reasonably be expected to have a prospective Material Adverse Effect.
(n) Each of the Company and the Material Subsidiaries has
good and marketable title to all property (real and personal) described in the
Prospectus as being owned by it, free and clear of all liens, claims, security
interests or other encumbrances except such as are described in the
Registration Statement and the Prospectus or which would not have a Material
Adverse Effect. All the property described in the Prospectus as being held
under lease by the Company or any of the Material Subsidiaries is held by it
under valid, subsisting and enforceable leases except to the extent the failure
to be valid, subsisting or enforceable would not have a Material Adverse
Effect.
(o) The Company has not distributed and, prior to the later
to occur of (i) the Closing Date and (ii) completion of the distribution of the
Shares, will not distribute any offering material in connection with the
offering and sale of the Shares other than the Registration Statement, the
Prepricing Prospectus, the Prospectus or other materials, if any, permitted by
the Act and state securities or Blue Sky laws.
(p) The Company and each of the Material Subsidiaries has
such permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("permits") as are necessary to own its respective
properties and to conduct its business in the manner described in the
Prospectus, except where failure to have such permits, licenses, franchises and
authorizations does not have a Material Adverse Effect, subject to such
qualifications as may be set forth in the Prospectus; the Company and each of
the Material Subsidiaries has fulfilled and performed all its material
obligations with respect to such permits and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or termination
thereof or results in any other material impairment of the rights of the holder
of any such permit except where such failure to perform, revocation,
termination or impairment does not have a Material Adverse Effect, subject in
each case to such qualification as may be set forth in the Prospectus; and,
except as described in the Prospectus, none of such permits contains any
restriction that is materially burdensome to the Company or any of the Material
Subsidiaries.
(q) The Company has not been advised, and has no reason to
believe, that either it or any of its Material Subsidiaries is not conducting
business in compliance with all applicable laws, rules and regulations of the
jurisdictions in which it is conducting business, including, without
limitation, all applicable local, state, federal and foreign environmental laws
and regulations, except where failure to be so in compliance does not have a
Material Adverse Effect.
12
(r) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(s) To the Company's knowledge, neither the Company nor any
of its Material Subsidiaries nor any employee or agent of the Company or any
Subsidiary has made any payment of funds of the Company or any Material
Subsidiary or received or retained any funds in violation of any law, rule or
regulation, which payment, receipt or retention of funds is of a character
required to be disclosed in the Prospectus.
(t) The Company and each of the Material Subsidiaries have
filed all tax returns required to be filed, which returns are complete and
correct in all material respects, and neither the Company nor any Subsidiary is
in default in the payment of any taxes which were payable pursuant to said
returns or any assessments with respect thereto.
(u) No holder of any security of the Company has any right to
require registration of shares of Common Stock or any other security of the
Company because of the filing of the registration statement or consummation of
the transactions contemplated by this Agreement.
(v) The Company and the Material Subsidiaries own or possess
all patents, trademarks, trademark registrations, service marks, service xxxx
registrations, trade names, copyrights, licenses, inventions, trade secrets and
rights described in the Prospectus as being owned by them or any of them or
necessary for the conduct of their respective businesses, except where failure
to possess such does not have a Material Adverse Effect, and the Company is not
aware of any claim to the contrary or any challenge by any other person to the
rights of the Company and the Material Subsidiaries with respect to the
foregoing.
(w) The Company is not now, and after sale of the Shares to
be sold by it hereunder will not be, an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(x) The Company has complied with all provisions of Florida
Statutes, ss. 517.075, relating to issuers doing business with Cuba.
(y) The Company and its Material Subsidiaries comply in all
material respects with all Environmental Laws (as defined below)(except to the
extent that failure to comply with such Environmental Laws would not have a
Material Adverse Effect). Neither the Company nor any of its Subsidiaries is
the subject of any pending or threatened federal, state or local investigation
in the United States or the Federation of Malaysia evaluating whether any
remedial
13
action by the Company or any of its Material Subsidiaries is needed to respond
to a release of any Hazardous Materials (as defined below) into the
environment, resulting from the Company's or any of its Material Subsidiaries'
business properties or assets or is in contravention of any Environmental Laws
that could reasonably be expected to have a Material Adverse Effect. Neither
the Company nor any of its Material Subsidiaries has received any notice or
claim, nor are there pending or threatened lawsuits against them, with respect
to violations of any Environmental Laws or in connection with any release of
any Hazardous Material into the environment that, in the aggregate, if the
subject of any unfavorable decision, ruling or finding, could reasonably be
expected to have a Material Adverse Effect. As used herein, "Environmental
Laws" means any federal, state or local law, regulation, rule or order of any
governmental authority, administrative body or court in the United States or
the Federation of Malaysia applicable to the Company's or any of its
Subsidiaries' business operations or ownership or possession of any of their
properties or assets relating to environmental matters, and "Hazardous
Materials" means those substances that are regulated by or form the basis of
liability under any Environmental Laws.
8. Representations and Warranties of the Selling Shareholders. Each
Selling Shareholder represents and warrants to each Underwriter that:
(a) Such Selling Shareholder now has, and on the Closing Date
will have, valid and marketable title to the Shares to be sold by such Selling
Shareholder, free and clear of any lien, claim, security interest or other
encumbrance, including, without limitation, any restriction on transfer or
other defect in title.
(b) Such Selling Shareholder now has, and on the Closing Date
will have, full legal right and power and any approval required by law (except
such as may be required under the Act or state securities or Blue Sky laws
governing the purchase and distribution of the Shares), to sell, assign,
transfer and deliver such Shares in the manner provided in this Agreement, and
upon delivery of and payment for such Shares hereunder, the several
Underwriters will acquire valid and marketable title to such Shares, free and
clear of any lien, claim, security interest or other encumbrance, restriction
on transfer or defect in title.
(c) This Agreement and the Custody Agreement have been duly
executed and delivered by or on behalf of such Selling Shareholder and are the
valid and binding agreements of such Selling Shareholder enforceable against
such Selling Shareholder in accordance with their terms except as rights to
indemnity and contribution hereunder may be limited by federal or state
securities laws or principles of public policy and subject to the qualification
that the enforceability of such Selling Shareholder's obligations hereunder may
be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium and other laws relating to or affecting creditors' rights generally
and by general equitable principles.
(d) Neither the execution and delivery of this Agreement or
the Custody Agreement by or on behalf of such Selling Shareholder nor the
consummation of the transactions herein or therein contemplated by or on behalf
of such Selling Shareholder requires any consent, approval, authorization or
order of, or filing or registration with, any court, regulatory body,
14
administrative agency or other governmental body, agency or official (except
such as may be required under the Act or state securities or Blue Sky laws
governing the purchase and distribution of the Shares) or conflicts or will
conflict with or constitutes or will constitute a breach of, or default under,
or violates or will violate, any agreement, indenture or other instrument to
which such Selling Shareholder is a party or by which such Selling Shareholder
is or may be bound or to which any of such Selling Shareholder's property or
assets is subject, or any statute, law, rule, regulation, ruling, judgement,
injunction, order or decree applicable to such Selling Shareholder or to any
property or assets of such Selling Shareholder, except in each case as would
not adversely affect the ability of such Selling Shareholder to consummate the
transactions contemplated by this Agreement.
(e) The Registration Statement and the Prospectus and any
amendment or supplement thereto do not contain an 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.
(f) The representations and warranties of such Selling
Shareholder in the Custody Agreement are, and on the Closing Date will be, true
and correct.
(g) Such Selling Shareholder has not taken, directly or
indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares, except for the lock-up
arrangements described in the Prospectus.
9. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each of you and each other Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs
of investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prepricing Prospectus or
in the Registration Statement or the Prospectus or in any amendment or
supplement thereto, or arising out of or 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, in the light of the circumstances
under which they were made, not misleading, except insofar as such losses,
claims, damages, liabilities or expenses arise out of or are based upon any
such untrue statement or omission or alleged untrue statement or omission which
has been made therein or omitted therefrom in reliance upon and in conformity
with (i) information relating to such Underwriter furnished in writing to the
Company by or on behalf of such Underwriter through you expressly for use in
connection therewith or (ii) information relating to any Selling Shareholder
furnished in writing to the Company by or on behalf of such Selling Shareholder
expressly for use in connection therewith; provided, however, that the
indemnification contained in this paragraph (a) with respect to any Prepricing
Prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of any person controlling such Underwriter) on account of any such loss, claim,
damage, liability or expense arising from the sale of Shares by such
Underwriter to any person if (i) a copy of the Prospectus shall not have been
delivered or sent to such person within the time required by the
15
Act and the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in such Prepricing Prospectus was
corrected in the Prospectus and (ii) the Company delivered the Prospectus to
the several Underwriters in requisite quantity on a timely basis to permit such
delivery or sending. The foregoing indemnity agreement shall be in addition to
any liability which the Company may otherwise have.
(b) Each Selling Shareholder, severally and not jointly,
agrees to indemnify and hold harmless each of you and each other Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act from and against any
and all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Prepricing
Prospectus or in the Registration Statement or the Prospectus or in any
amendment or supplement thereto, or arising out of or 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, in the light of the
circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages, liabilities or expenses arise out of or are based
upon any such untrue statement or omission or alleged untrue statement or
omission which has been made therein or omitted therefrom in reliance upon and
in conformity with the information relating to such Underwriter furnished in
writing to the Company by or on behalf of such Underwriter through you
expressly for use in connection therewith; provided, however, that the
indemnification contained in this paragraph (b) with respect to any Prepricing
Prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of any person controlling such Underwriter) on account of any such loss, claim,
damage, liability or expense arising from the sale of Shares by such
Underwriter to any person if (i) a copy of the Prospectus shall not have been
delivered or sent to such person within the time required by the Act and the
untrue statement or alleged untrue statement or omission or alleged omission of
a material fact contained in such Prepricing Prospectus was corrected in the
Prospectus and (ii) the Company delivered the Prospectus to the several
Underwriters in requisite quantity on a timely basis to permit such delivery or
sending; and provided, further, that such Selling Shareholder shall not be
liable under this Section 9 or any other provision of this Agreement in an
amount exceeding the net proceeds received by such Selling Shareholder from the
sale of the Shares sold by such Selling Shareholder and that the Underwriters
may seek to enforce their rights to indemnity against any Selling Shareholder
pursuant to this paragraph (b) only if the Underwriters believe in good faith
that there is a material risk that they may not obtain such payment from the
Company despite using their best efforts to do so. The foregoing indemnity
agreement shall be in addition to any liability which the Company may otherwise
have.
(c) If any action, suit or proceeding shall be brought
against any Underwriter or any person controlling any Underwriter in respect of
which indemnity may be sought against the Company or any Selling Shareholder,
such Underwriter or such controlling person shall promptly notify the parties
against whom indemnification is being sought (the "indemnifying parties"; and
such indemnifying parties shall assume the defense thereof, including the
employment of counsel and payment of all fees and expenses. Such Underwriter or
any such controlling person shall have the right to employ separate counsel in
any such action, suit or
16
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Underwriter or such controlling
person unless (i) the indemnifying parties have agreed in writing to pay such
fees and expenses, (ii) the indemnifying parties have failed to assume the
defense and employ counsel, or (iii) the named parties to any such action, suit
or proceeding (including any impleaded parties) include both such Underwriter
or such controlling person and the indemnifying parties and such Underwriter or
such controlling person shall have been advised by its counsel that
representation of such indemnified party and any indemnifying party by the same
counsel would be inappropriate under applicable standards of professional
conduct (whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between them (in which
case the indemnifying party shall not have the right to assume the defense of
such action, suit or proceeding on behalf of such Underwriter or such
controlling person). It is understood, however, that the indemnifying parties
shall, in connection with any one such action, suit or proceeding or separate
but substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for all such
Underwriters and controlling persons not having actual or potential differing
interests with you or among themselves, which firm shall be designated in
writing by Xxxxx Xxxxxx Inc., and that all such fees and expenses shall be
reimbursed as they are incurred. The indemnifying parties shall not be liable
for any settlement of any such action, suit or proceeding effected without
their written consent, but if settled with such written consent, or if there be
a final judgment for the plaintiff in any such action, suit or proceeding, the
indemnifying parties agree to indemnify and hold harmless any Underwriter, to
the extent provided in the preceding paragraph, and any such controlling person
from and against any loss, claim, damage, liability or expense by reason of
such settlement of judgment.
(d) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement, each Selling Shareholder, and any person who
controls the Company or any Selling Shareholder within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, to the same extent as the
foregoing indemnity from the Company and any Selling Shareholder to each
Underwriter, but only with respect to information relating to such Underwriter
furnished in writing by or on behalf of such Underwriter through you expressly
for use in the Registration Statement, the Prospectus or any Prepricing
Prospectus, or any amendment or supplement thereto. If any action, suit or
proceeding shall be brought against the Company, any of its directors, any such
officer, any Selling Shareholder, or any such controlling person based on the
Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto, and in respect of which indemnity may be
sought against any Underwriter pursuant to this paragraph (d), such Underwriter
shall have the rights and duties given to the Company by paragraph (c) above
(except that if the Company or any Selling Shareholder shall have assumed the
defense thereof such Underwriter shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof, but the fees
and expenses of such counsel shall be at such Underwriter's expense), and the
Company, its directors, any such officer, any Selling Shareholder, and any such
controlling person shall have the rights and
17
duties given to the Underwriters by paragraph (c) above. The foregoing
indemnity agreement shall be in addition to any liability which any Underwriter
may otherwise have.
(e) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsection (a) above or, where the
indemnified party is the Company or its officers, directors or controlling
persons, under subsection (d) above, in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then an indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the Company on the one hand and the Underwriters
on the other hand in connection with the statements or omissions that resulted
in such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. If the indemnification provided for in this
Section 9 is unavailable to an indemnified party under subsection (b) above or,
where the indemnified party is any Selling Shareholder or its controlling
persons, under subsection (d) above in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then an indemnifying party, in
lieu of indemnifying such indemnified party shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Selling
Shareholders on the one hand and the Underwriters on the other hand from the
offering of the Shares, or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company and the Selling Shareholders on the one hand
and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations; provided,
however, the Underwriters may seek to enforce their rights to contribution
against any Selling Shareholder pursuant to this Section 9 only if the
Underwriters believe in good faith that there is a material risk that they may
not obtain such contribution from the Company despite using their best efforts
to do so. The relative benefits received by the Company and the Selling
Shareholders on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Selling Shareholders bear to the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the Prospectus;
provided that, in the event that the Underwriters shall have purchased any
Additional Shares hereunder, any determination of the relative benefits
received by the Selling Shareholders or the Underwriters from the offering of
the Shares shall include the net proceeds (before deducting expenses) received
by the Selling Shareholders, and the underwriting discounts and commissions
received by the Underwriters from the sale of such Additional Shares, in each
case computed on the basis of the respective amounts set forth in the notes to
the table on the cover page of the Prospectus. The relative fault of the
Company and the Selling Shareholders on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company, by the Selling Shareholders or by the
18
Underwriters, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(f) The Company, each Selling Shareholder and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by a pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in paragraph (e) above. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities and expenses referred
to in paragraph (e) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating any claim or defending
any such action, suit or proceeding. Notwithstanding the provisions of this
Section 9, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price of the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 9 are several in proportion to the respective numbers
of Firm Shares set forth opposite their names in Schedule I hereto (or such
numbers of Firm Shares increased as set forth in Section 12 hereof) and not
joint.
(g) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
(h) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Company and each Selling Shareholder set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter, the Company, its directors or officers
or any Selling Shareholder or any person controlling the Company or any Selling
Shareholder, (ii) acceptance of any Shares and payment therefor hereunder, and
(iii) any termination of this Agreement. A successor to any Underwriter or any
person controlling any Underwriter, or to the Company, its directors or
officers, any Selling Shareholder, or any person controlling the Company or any
Selling Shareholder, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 9.
19
10. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters to purchase the Firm Shares hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the registration statement or a post-effective amendment
thereto or an Abbreviated Registration Statement to be declared effective
before the offering of the Shares may commence, the registration statement or
such post-effective amendment or Abbreviated Registration Statement shall have
become effective not later than 5:30 P.M., New York City time, on the date
hereof, or at such later date and time as shall be consented to in writing by
you, and all filings, if any, required by Rules 424 and 430A under the Act
shall have been timely made; no stop order suspending the effectiveness of the
registration statement shall have been issued and no proceeding for that
purpose shall have been instituted or, to the knowledge of the Company or any
Underwriter, threatened by the Commission, and any request of the Commission
for additional information (to be included in the registration statement or the
prospectus or otherwise) shall have been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, prospects, properties, net worth, or results of operations of the
Company or any of the Subsidiaries not contemplated by the Prospectus, which in
your opinion, as Representatives of the several Underwriters, would materially,
adversely affect the market for the Shares, or (ii) any event or development
relating to or involving the Company, any officer or director of the Company or
any Selling Shareholder, which makes any statement of a material fact made in
the Prospectus untrue or which, in the opinion of the Company and its counsel
or the Underwriters and their counsel, requires the making of any addition to
or change in the Prospectus in order to state a material fact required by the
Act or any other law to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, if amending or supplementing the Prospectus to reflect
such event or development would, in your opinion, as Representatives of the
several Underwriters, materially, adversely affect the market for the Shares.
(c) You shall have received on the Closing Date an opinion of
Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Company and the Selling
Shareholders, dated the Closing Date and addressed to you, as Representatives
of the several Underwriters, that:
(i) The Company is a corporation duly incorporated
and validly existing in good standing under the laws of the State of
Florida with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto), and is duly registered and qualified to conduct
its business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure
so to register or qualify would not have a Material Adverse Effect;
20
(ii) Each Material Subsidiary is a corporation duly
incorporated and validly existing and in good standing under the laws
of the jurisdiction of its organization, with full corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus
(and any amendment or supplement thereto); each Material Subsidiary is
duly registered and qualified to conduct its business and is in good
standing as a foreign corporation in each jurisdiction or place where
the nature of its properties or the conduct of its business requires
such registration or qualification, except where the failure so to
register or qualify or to be in good standing would not have a
Material Adverse Effect; and all the outstanding shares of capital
stock of each of the Material Subsidiaries have been duly authorized
and validly issued, are fully paid and nonassessable, and are owned by
the Company directly, or indirectly through one of the other Material
Subsidiaries, free and clear of any perfected security interest or, to
such counsel's knowledge, any other security interest, lien, adverse
claim, equity or other encumbrance, except for the stock of Safeskin
Latex Company which is held by the Nominees pursuant to the Deed of
Trust Agreements for the benefit of the Company free and clear of all
liens, encumbrances, equities, claims, security interests, voting
trusts or other defects of title whatsoever;
(iii) The Deed of Trust Agreements, by which the
Company is the beneficial owner of all of the outstanding shares of
stock of Safeskin Latex Company Sdn. Bhd., were duly and validly
authorized by all necessary corporate action of the Company, were duly
and validly executed and delivered by and on behalf of all the parties
thereto, are valid and binding agreements of the Company and the
Nominees, and are enforceable against the Company and the Nominees in
accordance with their terms; and no approval, authorization, order,
consent, registration, filing, qualifications, license or permit of or
with any court, regulatory, administrative or other governmental body
was or is required for the execution, delivery and performance of the
Deed of Trust Agreements and the consummation of the transactions
contemplated therein;
(iv) At September 30, 1996, the authorized and
outstanding capital stock of the Company is as set forth under the
caption "Capitalization" in the Prospectus; all necessary and proper
corporate proceedings have been validly taken in order to authorize
such capital stock; and the authorized capital stock of the Company
conforms in all material respects as to legal matters to the
description thereof incorporated in the Prospectus by reference to the
Company's Form 8-A/A;
(v) All the outstanding shares of capital stock of
the Company have been duly authorized and validly issued, are fully
paid and nonassessable, have been issued in compliance with applicable
federal and state securities laws (assuming compliance with the
applicable blue sky laws in connection with the Company's prior public
offerings), were not issued in violation of or subject to any
preemptive rights or other rights, known to such counsel, to subscribe
for or purchase any securities;
21
(vi) The form of certificates for the Shares conform
to the requirements of the Florida Business Corporation Act;
(vii) Such counsel has received oral confirmation
from the staff of the Commission that the Registration Statement and
all post-effective amendments, if any, have become effective under the
Act and, to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose are pending before or contemplated by the
Commission; and any required filing of the Prospectus pursuant to Rule
424(b) has been made in accordance with Rule 424(b);
(viii) The Company has the corporate power and
authority to enter into this Agreement, and this Agreement has been
duly authorized, executed and delivered by the Company and is a valid,
legal and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as enforcement of rights
to indemnity and contribution hereunder may be limited by federal or
state securities laws or principles of public policy and subject to
the qualification that the enforceability of the Company's obligations
hereunder may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable
principles;
(ix) To the knowledge of such counsel, neither the
Company nor any of the Material Subsidiaries is in violation of its
certificate of incorporation or bylaws, or other organizational
documents, or in default in the performance of any material
obligation, agreement or condition contained in any bond, debenture,
note or other evidence of indebtedness, or in any agreement,
indenture, lease or other instrument to which the Company or any of
the Material Subsidiaries is a party or by which any of them or any of
their respective properties may be bound, in each case that is made an
exhibit to the Registration Statement;
(x) Neither the offer, sale or delivery of the
Shares, the execution, delivery or performance of this Agreement,
compliance by the Company with the provisions hereof nor consummation
by the Company of the transactions contemplated hereby conflicts or
will conflict with or constitutes or will constitute a breach of, or a
default under, the certificate of incorporation or bylaws, or other
organizational documents, of the Company or any of the Material
Subsidiaries or any agreement, indenture, bond, note, lease or other
agreement or instrument to which the Company or any of the Material
Subsidiaries is a party or by which the Company or any of the Material
Subsidiaries or any of their respective properties is bound that is
made an exhibit to the Registration Statement, or to the knowledge of
such counsel will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any of the Material Subsidiaries, nor will any such action result in
any violation of any existing law, regulation, ruling (assuming
compliance with all applicable state securities or Blue Sky laws),
judgment, injunction, order or decree known to such counsel and
applicable to the Company or any of the Material Subsidiaries
22
or any of their respective properties except for violations which do
not have a Material Adverse Effect;
(xi) No consent, approval, authorization or other
order of, or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency, or official
is required on the part of the Company or any Selling Shareholder
(except as have been obtained under the Act and the Exchange Act or
such as may be required under state securities or Blue Sky laws
governing the purchase and distribution of the Shares) for execution
of this Agreement by the Company or any Selling Shareholder, the
Custody Agreement by each Selling Shareholder or for the sale of the
Shares to the Underwriters as contemplated by this Agreement;
(xii) The Registration Statement and the Prospectus
and any supplements or amendments thereto (except for the financial
statements and the notes thereto and the schedules and other financial
and statistical data included therein, as to which such counsel need
not express any opinion) comply as to form in all material respects
with the requirements of the Act;
(xiii) To the knowledge of such counsel, (A) there
are no legal or governmental proceedings pending or threatened against
the Company or any of the Material Subsidiaries, or to which the
Company or any of the Material Subsidiaries or any of their respective
properties is subject, which are required to be described in the
Registration Statement or Prospectus (or any amendment or supplement
thereto) that are not described as required and (B) there are no
agreements, contracts, indentures, leases or other instruments that
are required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement thereto) or to be filed as
an exhibit to the Registration Statement that are not described or
filed as required, as the case may be;
(xiv) To the knowledge of such counsel, neither the
Company nor any of the Material Subsidiaries is in violation of any
law, ordinance, administrative or governmental rule or regulation
applicable to the Company or any of the Material Subsidiaries or of
any decree of any court or governmental agency or body having
jurisdiction over the Company or any of the Material Subsidiaries, the
violation of which would have a Material Adverse Effect;
(xv) The statements in the Registration Statement
and Prospectus, insofar as they are descriptions of contracts,
agreements or other legal documents, or refer to statements of law or
legal conclusions, are accurate in all material respects and present
fairly the information required to be shown;
(xvi) This Agreement and the Custody Agreement have
each been duly executed and delivered by or on behalf of each of the
Selling Shareholders and are valid and binding agreements of each
Selling Shareholder enforceable against each Selling Shareholder in
accordance with their terms except as may be limited by Federal or
state securities laws or principles of public policy and subject to
the qualification that the
23
enforceability of each of the Selling Shareholder's obligations
hereunder may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium, and other laws relating to or
affecting creditors' rights generally and by general equitable
principles; and the Custodian has been duly and validly authorized to
act as the custodian of the Shares to be sold by each of the Selling
Shareholders;
(xvii) To knowledge of such counsel, each Selling
Shareholder has full legal right and power, and any approval required
by law, to enter into this Agreement and the Custody Agreement and to
sell, assign, transfer and deliver good and marketable title to the
Shares which such Selling Shareholder has agreed to sell pursuant to
this Agreement;
(xviii) The execution and delivery of this Agreement
and the Custody Agreement by the Selling Shareholders and the
consummation of the transactions contemplated hereby and thereby will
not conflict with, violate, result in a breach of or constitute a
default under the terms or provisions of any agreement, indenture,
mortgage or other instrument known to such counsel to which any
Selling Shareholder is a party or by which any of them or any of their
assets or property is bound, or any court order or decree known to
such counsel or any law, rule, or regulation applicable to any Selling
Shareholder or to any of the property or assets of any Selling
Shareholder;
(xix) Except as described in the Prospectus, there
are no outstanding options, warrants or other rights calling for the
issuance of, and such counsel does not know of any commitment, plan or
arrangement to issue, any shares of capital stock of the Company or
any security convertible into or exchangeable or exercisable for
capital stock of the Company;
(xx) Except as described in the Prospectus, there is
no holder of any securities of the Company or any other person who has
the right, contractual or otherwise, to cause the Company to sell or
otherwise issue to them, or to permit them to underwrite the sale of,
any of the Shares or the right to have any Common Stock or other
securities of the Company included in the Registration Statement or
the right, as a result of the filing of the Registration Statement, to
require the Company to register under the Act any shares of Common
Stock or other securities of the Company;
(xxi) The Company and, to the knowledge of such
counsel, each Material Subsidiary has full corporate power and
authority, and all necessary governmental authorizations, approvals,
orders, licenses, certificates, franchises and permits of and from all
governmental regulatory officials and bodies (except where the failure
so to have any such authorizations, approvals, orders, licenses,
certificates, franchises or permits, individually or in the aggregate,
would not have a Material Adverse Effect), to own their respective
properties and to conduct their respective businesses as now being
conducted, as described in the Prospectus;
24
(xxii) The Company and the Material Subsidiaries own
all patents, trademarks, trademark registrations, service marks,
service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets and rights described in the Prospectus as
being owned by them or any of them or necessary for the conduct of
their respective businesses, including the trademarks SAFESKIN(R),
HYPOCLEAN(R) and HYPOCLEAN 100(R) and such counsel is not aware of any
claim to the contrary or any challenge by any other person to the
rights of the Company and the Material Subsidiaries with respect to
the foregoing;
(xxiii) No transfer taxes are required to be paid in
connection with the sale and delivery of the Shares to the
Underwriters hereunder;
(xxiv) The Company is not an "investment company" or
a person "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended; and
(xxv) Although counsel has not undertaken, except as
otherwise indicated in their opinion, to determine independently, and
does not assume any responsibility for, the accuracy, completeness or
fairness of the statements in the Registration Statement, such counsel
has participated in the preparation of the Registration Statement and
the Prospectus, including review and discussion of the contents
thereof, and nothing has come to the attention of such counsel that
has caused it to believe that the Registration Statement, at the time
the Registration Statement became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of its date and as
of the Closing Date contained or contains an untrue statement of a
material fact or omitted or omits 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, or that any
amendment or supplement to the Prospectus, as of its date, and as of
the Closing Date contained or contains an untrue statement of a
material fact or omitted or omits 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 (it being
understood that such counsel need express no opinion with respect to
the financial statements and the notes thereto and the schedules and
other financial and statistical data included in the Registration
Statement or the Prospectus).
In rendering their opinion as aforesaid, counsel may rely
entirely upon an opinion or opinions, each dated the Closing Date, of other
counsel retained by them or the Company as to laws of any jurisdiction other
than the United States or the State of New York; provided, however that
(1) each such counsel is acceptable to the Representatives, (2) such reliance
is expressly authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Representatives and is, in form and substance,
satisfactory to them and counsel for the Underwriters and (3) counsel shall
state in their opinion that they believe that they and the Underwriters are
justified in relying thereon.
25
(d) You shall have received on the Closing Date an opinion of
Xxxxx Xxx & Co., Malaysian counsel for the Company and its subsidiaries
incorporated in the Federation of Malaysia (Safeskin Corporation (Malaysia)
Sdn. Bhd., Safeskin Engineering and Machinery Sdn. Bhd. and Safeskin Latex
Company Sdn. Bhd., herein collectively referred to as the "Malaysian
Subsidiaries") dated the Closing Date, addressed to you, as Representatives of
the several Underwriters, and in form and substance satisfactory to counsel for
the Underwriters and stating that it may be relied upon by counsel for the
Underwriters in giving their opinion, to the effect that:
(i) Each of the Malaysian Subsidiaries is a corporation duly
organized and validly existing in good standing under the laws of the
jurisdiction of its organization, is duly registered and qualified to
conduct its business as a foreign corporation and is in good standing
in all other jurisdictions where the nature of its properties or the
conduct of its business requires such registration or qualification
with full corporate power and authority to own, lease, and operate its
properties and to conduct its business as described in the
Registration Statement and the Prospectus;
(ii) The failure of the Company and each of its Subsidiaries
(except its Malaysian Subsidiaries) to be a corporation duly
registered and qualified to conduct its business as a foreign
corporation and be in good standing in the Federation of Malaysia and
each state thereof where such registration or qualification would
otherwise be required, does not have a Material Adverse Effect;
(iii) All of the issued and outstanding shares of each
Malaysian Subsidiary have been duly authorized and validly issued, are
fully paid and nonassessable and are owned by the Company, directly or
indirectly through one of the other Subsidiaries, free and clear of
any perfected security interest, or, to the knowledge of such counsel,
any other security interest, lien, adverse claim, equity or other
encumbrance except for the stock of Safeskin Latex Company Sdn. Bhd.
which is held by the Nominees pursuant to the Deed of Trust Agreements
for the benefit of the Company free and clear of any perfected
security interest or any other security interest, lien, adverse claim,
equity or other encumbrance whatsoever;
(iv) The Deed of Trust Agreements, by which the Company is
the beneficial owner of all of the outstanding shares of stock of
Safeskin Latex Company Sdn. Bhd., were duly and validly authorized by
all necessary corporate action of the Company, were duly and validly
executed and delivered by and on behalf of all the parties thereto,
are valid and binding agreements of the Company and the Nominees, and
are enforceable against the Company and the Nominees in accordance
with their terms; and no approval, authorization, order, consent,
registration, filing, qualification, license or permit of or with any
court, regulatory, administrative or other governmental body was or is
required for the execution, delivery and performance of the Deed of
Trust Agreements and the consummation of the transactions contemplated
therein;
26
(v) Neither the offer, sale or delivery of the Shares, the
execution, delivery or performance of this Agreement, compliance with
the provisions of this Agreement, nor consummation of the transactions
contemplated by this Agreement conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under the
articles of association or memoranda of association, or other
organizational documents, of any of the Malaysian Subsidiaries or any
agreement, indenture, bond, note, lease or other agreement or
instrument to which the Company or any of the Malaysian Subsidiaries
is a party or by which any of them or any of their respective
properties is bound, and which is known to such counsel, or will
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of the
Malaysian Subsidiaries, nor will any such action result in any
violation of any existing law, regulation, ruling, judgment,
injunction, order or decree of any court or governmental body of the
Federation of Malaysia or any state or subdivision thereof known to
such counsel after reasonable inquiry to be applicable to the Company,
the Malaysian Subsidiaries or any of their respective properties;
(vi) No consent, approval, authorization or other order of,
or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency, or official
of the Federation of Malaysia is required on the part of the Company
or any Selling Shareholder for execution of this Agreement by the
Company or any Selling Shareholder, the Custody Agreement by each
Selling Shareholder or for the sale of the Shares to the Underwriters
as contemplated by this Agreement;
(vii) To the knowledge of such counsel, no Malaysian
Subsidiary is in violation of its articles of association or
memorandum of association, or other organizational documents and
neither the Company nor any of the Material Subsidiaries is in default
in the performance of any material obligation, agreement or condition
contained in any bond, debenture, note or other evidence of
indebtedness, or in any agreement, indenture, lease or other
instrument to which the Company or any of the Material Subsidiaries is
a party or by which any of them or any of their respective properties
may be bound; and, to the knowledge of such counsel, the Company and
its Material Subsidiaries are in compliance with all laws, statutes,
ordinances, administrative and governmental rules and regulations of
the Federation of Malaysia and each state and subdivision thereof and
all judgments, decrees and orders of any court or governmental agency
or body of the Federation of Malaysia or any state or subdivision
thereof to which the Company or any of the Material Subsidiaries is
subject, except where noncompliance would not have a Material
Adversely Effect;
(viii) To the knowledge of such counsel, the Company and each
of the Material Subsidiaries is in possession of and operating in
compliance with all authorizations, approvals, orders, licenses,
certificates, franchises, permits, consents, certificates and orders
material to the ownership of their respective properties and to the
conduct of their respective businesses in the Federation of Malaysia,
all of which are valid and in full force and effect;
27
(ix) To the knowledge of such counsel, the Company and each
of the Material Subsidiaries has good and marketable title to all the
properties and assets located in Malaysia reflected as owned by the
Company or such subsidiary in the financial statements hereinabove
described (or elsewhere in the Prospectus), subject to no lien,
mortgage, pledge, charge or encumbrance of any kind except (i) those,
if any, reflected in such financial statements (or else in the
Prospectus), or (ii) those which are not material in amount and do not
adversely affect the use made and proposed to be made of such property
by the Company and its subsidiaries. The Company or the applicable
Subsidiary holds its leased Malaysia properties under valid and
binding leases, with such exceptions as are not materially significant
in relation to the business of the Company and the Subsidiaries taken
as a whole;
(x) To the knowledge of such counsel, (A) there are no legal
or governmental proceedings pending or threatened against the Company
or any of the Malaysian Subsidiaries, or to which the Company or any
of the Malaysian Subsidiaries or any of their respective properties is
subject, which are required to be described in the Registration
Statement or Prospectus (or any amendment or supplement thereto) that
are not described as required and (B) there are no agreements,
contracts, indentures, leases or other instruments that are required
to be described in the Registration Statement or the Prospectus (or
any amendment or supplement thereto) or to be filed as an exhibit to
the Registration Statement that are not described or filed as
required, as the case may be;
(xi) The statements in the Registration Statement and
Prospectus, insofar as they are descriptions of contracts, agreements
or other legal documents, or refer to statements of law or legal
conclusions relating to the Malaysian Subsidiaries are accurate and
present fairly the information required to be shown; and
(xii) The Malaysian Subsidiaries own all patents, trademarks,
trademark registrations, service xxxx registrations, trade names,
copyrights, licenses, inventions, trade secrets and rights necessary
for the conduct of their respective businesses as currently being
conducted and we are not aware of any claim to the contrary or any
challenge by any other person to the rights of the Malaysian
Subsidiaries with respect to the foregoing.
In rendering their opinion as aforesaid, counsel may rely
upon an opinion or opinions, each dated the Closing Date, of other counsel
retained by them or the Company as to laws of any jurisdiction other than the
laws of the Federation of Malaysia, provided that (1) each counsel is
acceptable to the Representatives and their counsel, (2) such reliance is
expressly authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Representatives and is, in form and substance
satisfactory to them and their counsel, and (3) Xxxxx Xxx & Co. shall state in
their opinion that they believe that they and the Underwriters are justified in
relying thereon.
(e) You shall have received on the Closing Date an opinion of
Tilleke & Xxxxxxx, Thai counsel for the Company and its subsidiary incorporated
in the Kingdom of
28
Thailand (Safeskin Corporation Thailand Limited herein referred to as the "Thai
Subsidiary") dated the Closing Date, addressed to you, as Representatives of
the several Underwriters, and in form and substance satisfactory to counsel for
the Underwriters and stating that it may be relied upon by counsel for the
Underwriters in giving their opinion, to the effect that:
(i) The Thai Subsidiary is a corporation duly organized and
validly existing in good standing under the laws of the jurisdiction
of its organization, is duly registered and qualified to conduct its
business as a foreign corporation and is in good standing in all other
jurisdictions where the nature of its properties or the conduct of its
business requires such registration or qualification with full
corporate power and authority to own, lease, and operate its
properties and to conduct its business as described in the
Registration Statement and the Prospectus;
(ii) The failure of the Company and each of its Subsidiaries
(excepts its Thai Subsidiary) to be a corporation duly registered and
qualified to conduct its business as a foreign corporation and be in
good standing in the Kingdom of Thailand and each state thereof where
such registration or qualification would otherwise be required, does
not have a Material Adverse Effect;
(iii) All of the issued and outstanding shares of the Thai
Subsidiary have been duly authorized and validly issued, are fully
paid and nonassessable and are owned by the Company, directly or
indirectly through one of the other Subsidiaries, free and clear of
any perfected security interest, or, to the knowledge of such counsel,
any other security interest, lien, adverse claim, equity or other
encumbrance free and clear of any perfected security interest or any
other security interest, lien, adverse claim, equity or other
encumbrance whatsoever;
(iv) Neither the offer, sale or delivery of the Shares, the
execution, delivery or performance of this Agreement, compliance with
the provisions of this Agreement, nor consummation of the transactions
contemplated by this Agreement conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under the
articles of association or memoranda of association, or other
organizational documents, of the Thai Subsidiary or any agreement,
indenture, bond, note, lease or other agreement or instrument to which
the Company or the Thai Subsidiary is a party or by which any of them
or any of their respective properties is bound, and which is known to
such counsel, or will result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company
or the Thai Subsidiary, nor will any such action result in any
violation of any existing law, regulation, ruling, judgment,
injunction, order or decree of any court or governmental body of the
Kingdom of Thailand or any state or subdivision thereof known to such
counsel after reasonable inquiry to be applicable to the Company, the
Thai Subsidiary or any of their respective properties;
(v) No consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency, or official
of the Kingdom of Thailand is required on the part of the
29
Company or any Selling Shareholder for execution of this Agreement by
the Company or any Selling Shareholder, the Custody Agreement by each
Selling Shareholder or for the sale of the Shares to the Underwriters
as contemplated by this Agreement;
(vi) To the knowledge of such counsel, the Thai Subsidiary is
not in violation of its articles of association or memorandum of
association, or other organizational documents and neither the Company
nor the Thai Subsidiary is in default in the performance of any
material obligation, agreement or condition contained in any bond,
debenture, note or other evidence of indebtedness, or in any
agreement, indenture, lease or other instrument to which the Company
or the Thai Subsidiary is a party or by which any of them or any of
their respective properties may be bound; and, to the knowledge of
such counsel, the Company and its Thai Subsidiary are in compliance
with all laws, statutes, ordinances, administrative and governmental
rules and regulations of the Kingdom of Thailand and each state and
subdivision thereof and all judgments, decrees and orders of any court
or governmental agency or body of the Kingdom of Thailand or any state
or subdivision thereof to which the Company or the Thai Subsidiary is
subject, except where noncompliance would not have a Material
Adversely Effect;
(vii) To the knowledge of such counsel, the Company and the
Thai Subsidiary are in possession of and operating in compliance with
all authorizations, approvals, orders, licenses, certificates,
franchises, permits, consents, certificates and orders material to the
ownership of their respective properties and to the conduct of their
respective businesses in the Kingdom of Thailand, all of which are
valid and in full force and effect;
(viii) To the knowledge of such counsel, the Company and the
Thai Subsidiary have good and marketable title to all the properties
and assets located in Thailand reflected as owned by the Company or
the Thai Subsidiary in the financial statements hereinabove described
(or elsewhere in the Prospectus), subject to no lien, mortgage,
pledge, charge or encumbrance of any kind except (i) those, if any,
reflected in such financial statements (or else in the Prospectus), or
(ii) those which are not material in amount and do not adversely
affect the use made and proposed to be made of such property by the
Company and its Thai Subsidiary. The Company or the Thai Subsidiary
holds its leased Thailand properties under valid and binding leases,
with such exceptions as are not materially significant in relation to
the business of the Company or the Thai Subsidiary taken as a whole;
(ix) To the knowledge of such counsel, (A) there are no legal
or governmental proceedings pending or threatened against the Company
or the Thai Subsidiary, or to which the Company or the Thai Subsidiary
or any of their respective properties is subject, which are required
to be described in the Registration Statement or Prospectus (or any
amendment or supplement thereto) that are not described as required
and (B) there are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the
Registration Statement or the Prospectus (or any
30
amendment or supplement thereto) or to be filed as an exhibit to the
Registration Statement that are not described or filed as required, as
the case may be;
(x) The statements in the Registration Statement and
Prospectus, insofar as they are descriptions of contracts, agreements
or other legal documents, or refer to statements of law or legal
conclusions relating to the Thai Subsidiary are accurate and present
fairly the information required to be shown; and
(xi) The Thai Subsidiary owns all patents, trademarks,
trademark registrations, service xxxx registrations, trade names,
copyrights, licenses, inventions, trade secrets and rights necessary
for the conduct of its respective business as currently being
conducted and we are not aware of any claim to the contrary or any
challenge by any other person to the rights of the Thai Subsidiary
with respect to the foregoing.
In rendering their opinion as aforesaid, counsel may rely
upon an opinion or opinions, each dated the Closing Date, of other counsel
retained by them or the Company as to laws of any jurisdiction other than the
laws of the Kingdom of Thailand, provided that (1) each counsel is acceptable
to the Representatives and their counsel, (2) such reliance is expressly
authorized by each opinion so relied upon and a copy of each such opinion is
delivered to the Representatives and is, in form and substance satisfactory to
them and their counsel, and (3) Tilleke & Xxxxxxx shall state in their opinion
that they believe that they and the Underwriters are justified in relying
thereon.
(f) You shall have received on the Closing Date an opinion of
Xxxxx Xxxxxxxxxx, counsel for the Underwriters, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, generally
with respect to the matters referred to in clauses (vii), (viii), (xii) and
(xxvi) of the foregoing paragraph (c) and such other related matters as you may
request.
(g) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date from Coopers & Xxxxxxx, independent certified public accountants,
substantially in the forms heretofore approved by you.
(h) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Company,
contemplated by the Commission at or prior to the Closing Date and any request
of the Commission for additional information (to be included in the
registration statement or the prospectus or otherwise) shall have been complied
with; (ii) there shall not have been any material change in the capital stock
of the Company nor any material increase in the short-term or long-term debt of
the Company and the Material Subsidiaries, taken as a whole, from that set
forth or contemplated in the Registration Statement or the Prospectus (or any
amendment or supplement thereto); (iii) there shall not have been, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus (or any amendment or supplement thereto), except as may
otherwise be stated in the Registration Statement and Prospectus (or any
amendment or supplement thereto), any Material Adverse
31
Effect; (iv) neither the Company nor any of the Subsidiaries shall have any
liabilities or obligations, direct or contingent (whether or not in the
ordinary course of business), that are material to the Company and the
Subsidiaries, taken as a whole, other than those reflected in or contemplated
by the Registration Statement or the Prospectus (or any amendment or supplement
thereto); and (v) all the representations and warranties of the Company
contained in this Agreement shall be true and correct in all material respects
on and as of the date hereof and on and as of the Closing Date as if made on
and as of the Closing Date, and you shall have received a certificate, dated
the Closing Date and signed by the chief executive officer and the chief
financial officer of the Company (or such other officers as are acceptable to
you), as to the matters set forth in this Section 10(g) and in Section 10(h)
hereof.
(i) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder at or
prior to the Closing Date.
(j) All the representations and warranties of the Selling
Shareholders contained in this Agreement shall be true and correct on and as of
the date hereof and on and as of the Closing Date as if made on and as of the
Closing Date, and you shall have received a certificate, dated the Closing Date
and signed by or on behalf of the Selling Shareholders to the effect set forth
in this Section 10(j) and in Section 10(k) hereof.
(k) The Selling Shareholders shall not have failed at or
prior to the Closing Date to have performed or complied with any of their
agreements herein contained and required to be performed or complied with by
them hereunder at or prior to the Closing Date.
(l) The Sellers shall have furnished or caused to be
furnished to you such further certificates and documents as you shall have
reasonably requested.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are satisfactory
in form and substance to you, as Representatives of the several Underwriters,
and counsel for the Underwriters.
Any certificate or document signed by any officer of the
Company or by or on behalf of any Selling Shareholder and delivered to you, as
Representatives of the several Underwriters, or to counsel for the
Underwriters, shall be deemed a representation or warranty by the Company or
such Selling Shareholder, as the case may be, to each Underwriter as to the
statements made therein.
The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to the satisfaction on and as of any
Option Closing Date of the conditions set forth in this Section 10, except
that, if any Option Closing Date is other than the Closing Date, the
certificates, opinions and letters referred to in paragraphs (c) through (j)
shall be dated the Option Closing Date in question and the opinions called for
by paragraphs (c), (d) and (e) shall be revised to reflect the sale of
Additional Shares.
32
11. Expenses. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder: (i) the preparation, printing or reproduction, and
filing with the Commission of the registration statement (including financial
statements and exhibits thereto), each Prepricing Prospectus, the Prospectus,
and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the registration statement, each
Prepricing Prospectus, the Prospectus, and all amendments or supplements to any
of them as may be reasonably requested for use in connection with the offering
and sale of the Shares; (iii) the preparation, printing, authentication,
issuance and delivery of certificates for the Shares, including any stamp taxes
in connection with the offering of the Shares; (iv) the printing (or
reproduction) and delivery of this Agreement, the preliminary and supplemental
Blue Sky Memoranda and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the Shares; (v)
the registration of the Common Stock under the Exchange Act; (vi) the
registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the several states as provided in Section 5(g)
hereof (including the reasonable fees, expenses and disbursements of counsel
for the Underwriters relating to the preparation, printing or reproduction, and
delivery of the preliminary and supplemental Blue Sky Memoranda and such
registration and qualification); (vii) the filing fees and the reasonable fees
and expenses of counsel for the Underwriters in connection with any filings
required to be made with the National Association of Securities Dealers, Inc.
in connection with the offering; (viii) the transportation and other expenses
incurred by or on behalf of representatives of the Company in connection with
presentations to prospective purchasers of the Shares; (ix) the fees and
expenses of the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company and the Selling
Shareholders.
12. Effective Date of Agreement. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto; or
(ii) if, at the time this Agreement is executed and delivered, it is necessary
for the registration statement or a post-effective amendment thereto or an
Abbreviated Registration Statement to be declared or become effective before
the offering of the Shares may commence, when notification of the effectiveness
of the registration statement or such post-effective amendment has been
released by the Commission or such Abbreviated Registration Statement has,
pursuant to the provisions of Rule 462 under the Act, become effective. Until
such time as this Agreement shall have become effective, it may be terminated
by the Company by notifying you and the Attorneys in Fact, or by you, as
Representatives of the several Underwriters, by notifying the Company and the
Attorneys in Fact.
If any one or more of the Underwriters shall fail or refuse
to purchase Shares which it or they have agreed to purchase hereunder, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of Shares which the Underwriters are obligated to purchase on
the Closing Date, each non-defaulting Underwriter shall be obligated,
severally, in the proportion which the number of Firm Shares set forth opposite
its name in Schedule II hereto bears to the aggregate number of Firm Shares set
forth opposite the names of all non-defaulting
33
Underwriters or in such other proportion as you may specify in accordance with
Section 20 of the Master Agreement Among Underwriters of Xxxxx Xxxxxx, Xxxxxx
Xxxxx & Co. Incorporated (predecessor of Xxxxx Xxxxxx Inc.), to purchase the
Shares which such defaulting Underwriter or Underwriters agreed, but failed or
refused, to purchase. If any Underwriter or Underwriters shall fail or refuse
to purchase Shares which it or they are obligated to purchase on the Closing
Date and the aggregate number of Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares which the
Underwriters are obligated to purchase on the Closing Date and arrangements
satisfactory to you and the Company for the purchase of such Shares by one or
more non-defaulting Underwriters or other party or parties approved by you and
the Company are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any such default of any such Underwriter under this Agreement. The
term "Underwriter" as used in this Agreement includes, for all purposes of this
Agreement, any party not listed in Schedule II hereto who, with your approval
and the approval of the Company, purchases Shares which a defaulting
Underwriter agreed, but failed or refused, to purchase.
Any notice under this Section 12 may be given by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
13. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Underwriter to the Sellers, by notice to the Company and the Attorneys in Fact,
if prior to the Closing Date or any Option Closing Date (if different from the
Closing Date and then only as to the Additional Shares), as the case may be,
(i) trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been suspended
or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either federal or state
authorities, or (iii) there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions, the effect of which on the
financial markets of the United States is such as to make it, in your judgment,
impracticable or inadvisable to commence or continue the offering of the Shares
at the offering price to the public set forth on the cover page of the
Prospectus or to enforce contracts for the resale of the Shares by the
Underwriters. Notice of such termination may be given by telegram, telecopy or
telephone and shall be subsequently confirmed by letter.
14. Information Furnished by the Underwriters. The statements set
forth in the last paragraph on the cover page, the stabilization legend on the
inside front cover page and the statements in the first and third paragraphs
under the caption "Underwriting" in any Prepricing Prospectus and in the
Prospectus constitute the only information furnished by or on behalf of the
Underwriters through you as such information is referred to in Sections 7(b)
and 9 hereof.
34
15. Miscellaneous. Except as otherwise provided in Sections 5, 12 and
13 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company or the Selling
Shareholders, at the office of the Company at Del Mar Corporate Plaza, 00000
Xxxx Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx Xxxxx, with a
copy to Xxxxxx, Xxxxx & Bockius LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx X. Xxxxxxxx, Esq.; or (ii) if to you, as Representatives of
the several Underwriters, care of Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment Banking Division, with a
copy to Xxxxx Xxxxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxxxx X. Xxxxxx, Esq.
This Agreement has been and is made solely for the benefit of
the several Underwriters, the Company, its directors, its officers who sign the
Registration Statement, the Selling Shareholders and the controlling persons
referred to in Section 9 hereof and, to the extent provided herein, their
respective successors and assigns and no other person shall acquire or have any
right under or by virtue of this Agreement. Neither the term "successor" nor
the term "successors and assigns" as used in this Agreement shall include a
purchaser from any Underwriter of any of the Shares in his status as such
purchaser.
16. Applicable Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts,
this Agreement shall not become effective unless at least one counterpart
hereof shall have been executed and delivered on behalf of each party hereto.
35
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the several Underwriters.
Very truly yours,
SAFESKIN CORPORATION
By:
-------------------------------
Xxxxxxx Xxxxx
Chairman, President
and Chief Executive Officer
EACH OF THE SELLING
SHAREHOLDERS NAMED
IN SCHEDULE I HERETO
By:
----------------------------
Attorney-in-Fact
Confirmed as of the date first By:
above mentioned on behalf of ----------------------------
themselves and the other several Attorney-in-Fact
Underwriters named in Schedule II
hereto.
XXXXX XXXXXX INC.
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
As Representatives of the Several Underwriters
By: XXXXX XXXXXX INC.
By:
--------------------------
Managing Director
36
SCHEDULE I
SAFESKIN OFFERING
Legal Name of Entity/Individual
(State of Organization, Number of Number of
if applicable) Firm Shares Additional Shares
------------------------------- ----------- -----------------
Xxxxxx Xxxxx............................ 300,000 50,000
Xxxxxxx Xxxxx........................... 300,000 50,000
Xxxxxxx X. Xxxxx, Xxxx X. Xxxxx and
Xxxxxx X. Xxxx, as trustees of the
Xxxxx Charitable Remainder Unit
Trust (California)...................... 400,000
Xxxxxxx Xxxxx........................... 200,000
IceJuicy, a California Limited
Partnership (California)................ 200,000
Xxxx X. Xxxxxxxxx and Xxxxxx X.
Xxxxxxxxx, as trustees of the
Xxxxxxxxx Family Trust for the
benefit of Xxxxx Xxxxxxxxx
(Florida)............................... 200,000
Xxxxxx Xxxxxxxxx, as trustee of the
Xxxx X. Xxxxxxxxx XXXXX Trust
(Florida)............................... 31,732
Xxxxxxxxx Family Partnership, Ltd.
(Florida)............................... 148,268
Xxxxxxxxx Holdings, Limited (Texas)..... 200,000
North Military, Ltd. (Texas)............ 869,500
JSB Ventures, Ltd. (Texas).............. 178,428
JDB Ventures, Ltd. (Texas).............. 178,428
JNB Ventures, Ltd. (Texas).............. 90,090
Xxxxxx Xxxxxxxxx........................ 83,554
--------- -------
Total............................... 3,200,000 480,000
========= =======
SCHEDULE II
SAFESKIN CORPORATION
Number of
Underwriter Firm Shares
----------- -----------
Xxxxx Xxxxxx Inc..................................................
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation...............
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated................
----------
Total...................................... 3,200,000
==========
SCHEDULE III
SAFESKIN CORPORATION
Subsidiaries
------------
Safeskin Corporation (Malaysia) Sdn.Bhd.
Safeskin Engineering and Machinery Sdn.Bhd.
Safeskin Latex Company Sdn.Bhd.
Safeskin Corporation Thailand Limited
