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EXHIBIT 1.1
Draft 1/19/00
ROBOTIC VISION SYSTEMS, INC.
Five Million Shares of Common Stock
(par value $.01 per share)
UNDERWRITING AGREEMENT
New York, New York
February [_], 2000
ING Barings LLC
As Representative of the several Underwriters
c/o ING Barings LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Each of Robotic Vision Systems, Inc., a Delaware company (the
"Company"), and the shareholders named in Schedule I hereto (collectively, the
"Selling Shareholders") confirms its agreement (the "Agreement") with each of
the Underwriters named in Schedule II hereto (collectively, the "Underwriters,"
which term shall also include any underwriter substituted as hereinafter
provided in Section 9 hereof), for whom ING Barings LLC is acting as
representative (in such capacity, the "Representative"), with respect to the
sale by the Selling Shareholders, acting severally and not jointly, and the
purchase by the Underwriters, acting severally and not jointly, of the
respective number of common shares (the "Initial Shares"), par value $.01 per
share, of the Company (the "Common Shares") set forth in said Schedule II. The
Company also grants to the several Underwriters the option (the "Option") to
purchase up to an aggregate of not more than 750,000 additional Common Shares
(the "Option Shares," and together with the Initial Shares, the "Shares").
1. Representations and Warranties.
(a) The Company represents and warrants to and agrees with
each of the Underwriters that:
(i) The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form
S-3 (No. 333- ), for the registration of the Shares under the
Securities Act of 1933, as amended (the "Act"). Such registration
statement, including the prospectus, financial statements and
schedules,
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exhibits and all other documents filed as a part thereof, as amended
through the time of effectiveness of the registration statement,
including any information deemed to be a part thereof as of the time of
effectiveness pursuant to Rule 430A or Rule 434 of the Rules and
Regulations of the Commission under the Act (the "Regulations"), is
herein called the "Registration Statement". Any registration statement
filed by the Company pursuant to Rule 462(b) under the Act is herein
called the "Rule 462(b) Registration Statement", and from and after the
date and time of filing of the Rule 462(b) Registration Statement the
term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The prospectus, in the form first filed with
the Commission pursuant to Rule 424(b) of the Regulations or filed as
part of the Registration Statement at the time of effectiveness if no
Rule 424(b) or Rule 434 filing is required, is herein called the
"Prospectus". The term "preliminary prospectus" as used herein means a
preliminary prospectus as described in Rule 430A of the Regulations;
provided, however, if the Company has, with the consent of ING Barings
LLC, elected to rely upon Rule 434 under the Act, the term "Prospectus"
shall mean the Company's prospectus subject to completion (each, a
"preliminary prospectus") dated February [_ ], 2000 (such preliminary
prospectus is herein called the "Rule 434 - preliminary prospectus"),
together with the applicable term sheet (the "Term Sheet") prepared and
filed by the Company with the Commission under Rules 434 and 424(b)
under the Act and all references in this Agreement to the date of the
Prospectus shall mean the date of the Term Sheet. All references in
this Agreement to the Registration Statement, the Rule 462(b)
Registration Statement, a preliminary prospectus, the Prospectus or the
Term Sheet, or any amendments or supplements to any of the foregoing,
shall include any copy thereof filed with the Commission pursuant to
its Electronic Data Gathering, Analysis and Retrieval System ("XXXXX").
References in this Agreement to things being "described", "included" or
"disclosed" in the Registration Statement or the Prospectus shall be
deemed to include documents incorporated by reference in the
Registration Statement or the Prospectus.
(ii) Each preliminary prospectus and the Prospectus, if filed
by electronic transmission pursuant to XXXXX (except as may be
permitted by Regulation S-T under the Securities Act), was identical to
the copy thereof delivered to the Underwriters for use in connection
with the offer and sale of the Shares. At the time of the effectiveness
of the Registration Statement or the effectiveness of any Rule 462(b)
Registration Statement and any post-effective amendment thereto, when
the Prospectus is first filed with the Commission pursuant to Rule
424(b) or Rule 434 of the Regulations, when any supplement to or
amendment of the Prospectus is filed with the Commission and at the
Closing Date and the Additional Closing Date, if any (as defined in
Section 2), the Registration Statement and the Prospectus and any
amendments thereof and supplements thereto complied and will comply in
all material respects with the applicable provisions of the Act and the
Regulations, did not and will not contain an untrue statement of a
material fact and did not and will not omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading. When any related preliminary
prospectus was first filed with the Commission (whether filed as part
of the Registration Statement for the registration of the Shares or any
amendment thereto or pursuant to Rule 424(a) of the Regulations) and
when any amendment thereof or supplement thereto was first filed with
the Commission, such preliminary prospectus and any amendments thereof
and supplements thereto complied in all material respects with the
applicable provisions of the Act and the Regulations and did not
contain an untrue
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statement of a material fact and did not omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading. No representation and warranty is
made in this subsection (b), however, with respect to any information
contained in or omitted from the Registration Statement or the
Prospectus or any related preliminary prospectus or any amendment
thereof or supplement thereto in reliance upon and in conformity with
information relating to the Underwriters furnished in writing to the
Company by or on behalf of any Underwriter through you expressly for
use in connection with the preparation thereof. If Rule 434 is used,
the Company will comply with the requirements of Rule 434.
(iii) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with full power and authority to own, lease and operate
its properties and engage in the business in which it is engaged or in
which it proposes to engage as described in the Registration Statement,
the preliminary prospectus and the Prospectus. The Company is duly
registered and qualified to do business as a foreign corporation in
good standing in each jurisdiction where the character, location,
ownership or leasing of its properties (owned, leased or licensed) or
the nature or conduct of its business requires such registration or
qualification.
(iv) The Company has no subsidiaries (as defined in the
Regulations), other than those listed on Schedule III hereto (the
"Subsidiaries"), which are wholly-owned subsidiaries of the Company.
The Company does not own or control, directly or indirectly, any shares
of stock or any other equity or long-term debt securities of any
corporation or have any equity interest in any firm, partnership, joint
venture, association, or other entity other than the Subsidiaries. All
the outstanding shares of capital stock of the Subsidiaries have been
duly and validly authorized and issued and are fully paid and
nonassessable, are owned solely by the Company and are free and clear
of any security interest, pledge, claim (legal or equitable), lien,
charge, equity, mortgage, encumbrance or other restriction (each a
"Lien"), shareholders' agreements, voting trusts or defects of title.
The Subsidiaries have been duly organized and are validly existing as
corporations in good standing under the laws of their jurisdictions of
organization, with full power and authority to own, lease and operate
their properties and conduct the business in which they are engaged or
in which they propose to engage. The Subsidiaries are duly registered
and qualified as foreign corporations in good standing in each
jurisdiction where the character, location, ownership or leasing of
their properties or the nature or conduct of their business requires
such registration or qualification. The Subsidiaries are not currently
prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distribution on their capital stock,
from repaying to the Company any loans or advances to them from the
Company or from transferring any of their property or assets to the
Company or any other Subsidiaries of the Company.
(v) Deloitte & Touche LLP, the accountants who have expressed
their opinion with respect to the consolidated financial statements
(including the related notes and supporting schedules) of the Company
and the Subsidiaries filed with Commission as a part of the
Registration Statement, the preliminary prospectus and the Prospectus,
are, with respect to the Company and the Subsidiaries, independent
public accountants as required by the Act, the Regulations, the
Securities and Exchange Act of 1934 (the
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"Exchange Act") and the Rules and Regulations of the Commission under
the Exchange Act (the "Exchange Act Rules").
(vi) The Company has an authorized capitalization as of
September 30, 1999 as set forth in the Registration Statement, the
preliminary prospectus and the Prospectus and there has been no
material change in its capitalization since that date. All outstanding
shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable, have been issued
in compliance with all federal and state securities laws and were not
issued in violation of any preemptive right, resale right, right of
first refusal or similar right. The authorized and outstanding capital
stock of the Company conforms to the description thereof contained in
the Registration Statement, the preliminary prospectus and the
Prospectus (and such description correctly states the substance of the
provisions of the instruments defining the capital stock of the
Company). Except as described in the Registration Statement, the
preliminary prospectus and the Prospectus, there are no authorized or
outstanding rights (including, without limitation, preemptive rights,
co-sale rights, resale rights, rights of first refusal or similar
rights), warrants or options to acquire, or instruments convertible
into or exercisable or exchangeable for, any share of capital stock or
other equity interest or ownership interest in the Company or the
Subsidiaries or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any capital stock
or other equity interest or ownership interest in the Company or the
Subsidiaries or any such convertible or exercisable or exchangeable
securities or instruments or any such rights, warrants or options. The
Shares to be issued pursuant to this Agreement will not be issued in
violation of any preemptive right, co-sale right, resale right, right
of first refusal or similar right. The description of the Company' s
stock option, stock bonus and other stock plans or arrangements, and
the options or other rights granted thereunder, set forth in the
Registration Statement, the preliminary prospectus and the Prospectus
accurately and fairly presents the information required to be shown
with respect to such plans, arrangements, options and rights. The
Shares have been duly authorized for issuance and, when issued and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will be validly issued, fully paid and nonassessable, good
title to the Shares will be transferred to the Underwriters free and
clear of any Liens and the certificates representing the Shares will be
in valid and sufficient form.
(vii) There is (A) no action, suit, proceeding or
investigation before or by any court, arbitrator or governmental
agency, body or official, domestic or foreign, pending, threatened or
contemplated, as to which the Company or the Subsidiaries will be a
party or as to which the business, assets or property of the Company or
the Subsidiaries are or will be subject, (B) no statute, rule,
regulation or order that has been enacted, adopted or issued by any
governmental agency, body or official, and (C) no injunction,
restraining order or order of any nature that has been issued by a
federal or state court or foreign court of competent jurisdiction to
which the Company or the Subsidiaries are or will be subject or
affecting the business, assets or property of the Company or the
Subsidiaries, that could (in the case of clauses (A), (B) and (C)),
individually or in the aggregate, whether or not arising from
transactions in the ordinary course of business, result in a material
adverse effect on or affecting the business, operations, assets,
properties, condition (financial or other), Shareholders' equity,
prospects or results of operations (a "Material Adverse Effect") of the
Company and its subsidiaries taken as a whole, be
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required to be disclosed in the Registration Statement, the preliminary
prospectus or the Prospectus and is not so disclosed or adversely
affect the ability of the Company to perform its obligations under this
Agreement or be otherwise important in the context of the sale of the
Shares. There are no legal or administrative proceedings, statutes,
Contracts (as defined below) or documents concerning the Company or the
Subsidiaries of a character that would be required to be described in
or filed as an exhibit to a registration statement on Form S-3 under
the Act that are not described or filed, as required, in the
Registration Statement, the preliminary prospectus and the Prospectus.
(viii) The consolidated financial statements of the Company
and the Subsidiaries, together with the related notes thereto, which
are a part of the Registration Statement, the preliminary prospectus
and the Prospectus, present fairly the consolidated financial position
and the consolidated results of operations, changes in Shareholders'
equity and changes in cash flows of the Company and the Subsidiaries as
of the respective dates and for the respective periods specified
therein. All of such financial statements and related notes have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved and
comply as to form with the applicable accounting requirements included
in Regulation S-X under the Act. The supporting schedules, the "Summary
Selected Financial Data", the "Selected Consolidated Financial and
Other Data" and the tables included in the Registration Statement, the
preliminary prospectus and the Prospectus fairly present the
information purported to be shown thereby at the respective dates
thereof and for the respective periods covered thereby and have been
presented on a basis consistent with that of the audited financial
statements therein. No other financial statements or supporting
schedules are required by the Act or Regulation S-X to be included
therein.
(ix) Subsequent to the respective dates as of which
information is given in the Registration Statement, the preliminary
prospectus and the Prospectus, there has not been (A) any loss or
adverse change, or any development which may result in a loss or
adverse change, in or affecting the business, properties, management,
assets, prospects, Shareholders' equity, operations, condition
(financial or other), or results of operations of the Company and its
subsidiaries taken as a whole, (B) any transaction entered into by the
Company or the Subsidiaries, except transactions in the ordinary course
of business; (C) any obligation, direct or contingent, incurred by the
Company or the Subsidiaries which is material to the Company and the
Subsidiaries taken as a whole, except for liabilities or obligations
which are reflected in the Registration Statement, the preliminary
prospectus and the Prospectus, (D) any change in the capital stock or
outstanding indebtedness of the Company, or (E) any dividend or
distribution of any kind declared, paid or made on the capital stock of
the Company, which in any case described in clauses (A), (B), (C), (D)
or (E) above, could, individually or in the aggregate, have a Material
Adverse Effect on the Company and its subsidiaries taken as a whole or
adversely affect the ability of the Company to perform its obligations
under this Agreement or be otherwise important in the context of the
sale of the Shares.
(x) The Company and the Subsidiaries have good and marketable
title to all properties and assets described in the Registration
Statement, the preliminary prospectus and the Prospectus as being owned
by them, free and clear of Liens, except, individually and in the
aggregate, Liens for taxes not yet due and payable. The Company and the
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Subsidiaries have valid and enforceable leases for the properties
leased by them, the Company and the Subsidiaries enjoy peaceful and
undisturbed possession under all such leases with such exceptions as do
not materially interfere with the use thereof made by the Company and
the Subsidiaries, and such leases conform in all material respects to
the descriptions thereof, if any, set forth in the Registration
Statement, the preliminary prospectus and the Prospectus. The Company
and the Subsidiaries, own, lease or otherwise have rights to use all
properties and assets as are important to their respective operations
as now conducted and as proposed to be conducted.
(xi) The Company and the Subsidiaries have all requisite power
and authority (corporate and other), and all licenses, certificates,
approvals, consents, concessions, qualifications, orders,
registrations, authorizations and permits from all federal, state,
foreign and other governmental and regulatory agencies, bodies and
authorities ("Permits") that are material to the conduct of the
business of the Company and the Subsidiaries as such business is
currently conducted. The Company reasonably believes that it will be
able to obtain Permits that are material to the conduct of the business
of the Company and the Subsidiaries as such business is proposed to be
conducted as described in the Registration Statement, the preliminary
prospectus and the Prospectus. All such Permits are valid and in full
force and effect (and there is no proceeding pending or, to the best
knowledge of the Company, threatened which may cause any such Permit to
be withdrawn, canceled, suspended or not renewed). The Company and the
Subsidiaries are not in violation of, or in default under, and have
fulfilled and performed all their obligations with respect to such
Permits. No event has occurred which allows or would allow revocation
or termination of any such Permit or result in any material impairment
of the rights of the holder of any such Permit. The Contracts (as
defined below) to which the Company or the Subsidiaries is a party are
valid and binding agreements, enforceable against the Company and the
Subsidiaries in accordance with their terms and, to the best of the
Company's knowledge, the other contracting party or parties thereto are
not in material breach or default under any of such Contracts.
(xii) The Company and the Subsidiaries are not (A) in
violation of their respective certificates of incorporation, as
amended, or bylaws, as amended or (B) in breach of or default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, franchise, joint venture, deed of trust, bond, note, lease,
Permit or other agreement or instrument to which the Company or the
Subsidiaries is a party or by which the Company or the Subsidiaries may
be bound or to which any of the property or assets of the Company or
the Subsidiaries is subject (each a "Contract"), or in violation of any
law, order, rule, regulation, writ, injunction or decree of any court
or governmental agency, body or authority, except in the case of this
clause (B) for such breaches, defaults or violations that could not,
individually or in the aggregate, have a Material Adverse Effect on the
Company and its subsidiaries taken as a whole or adversely affect the
ability of the Company to perform its obligations under this Agreement
or be otherwise important in the context of the sale of the Shares.
(xiii) The Company and the Subsidiaries own, possess or
license or have other rights to use all patents, patent applications,
trademarks, trademark applications, service marks, service xxxx
applications, tradenames, inventions, copyrights, manufacturing
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processes, formulae, trade secrets, know-how, franchises, and other
unpatented and/or unpatentable proprietary or confidential information,
collaborative research agreements, systems or procedures and material
intangible property and assets (collectively, "Intellectual Property")
necessary to the conduct of their business as currently conducted and
as proposed to be conducted. The Company reasonably believes that the
Company and the Subsidiaries will be able to own or possess adequate
licenses or other rights to use all Intellectual Property necessary to
the conduct of their business as proposed to be conducted as described
in the Registration Statement, the preliminary prospectus and the
Prospectus. The Company has no knowledge that it lacks or will be
unable to obtain any rights or licenses to use any of such Intellectual
Property. The Registration Statement, the preliminary prospectus and
the Prospectus fairly and accurately describe the Company's rights with
respect to Intellectual Property. Neither the Company nor any of the
Subsidiaries have received any notice of, and otherwise has any
knowledge of, any infringement or of conflict with asserted rights or
claims of others with respect to any Intellectual Property and the
Company is unaware of any fact which could form a reasonable basis for
any such claim. Specifically, and without limitation, the Company is
the sole owner of patent applications filed in the United States and
any corresponding foreign applications (collectively, the "Patent
Applications"). Rights that any other party may have in the Patent
Rights will not have a Material Adverse Effect on the Company and its
subsidiaries taken as a whole or adversely affect the ability of the
Company to perform its obligations under this Agreement or be otherwise
important in the context of the sale of the Shares. There are no
outstanding licenses or other agreements that relate to or restrict the
Company's use of the Patent Rights. With regard to the Patent Rights,
the Company has no knowledge of unpaid maintenance fees, patents that
have lapsed, or abandonment of applications, and knows of no reason why
any patent applications should not be allowed. There are no claims,
actions, or proceedings, pending or to the Company's best knowledge,
threatened, challenging the validity of any of its claims in any of the
Intellectual Property. The commercial embodiments of the [LS and GS
Models 5700, 7100 and 7700] as currently marketed and as proposed to be
marketed are covered by the Patent Rights. There is no prior art that
may render any Patent Right invalid or a Patent Application
unpatentable.
(b) The Company has no knowledge of the existence of patents
or patent applications owned by third parties that may have a Material Adverse
Effect on the Company and its subsidiaries taken as a whole or adversely affect
the ability of the Company to perform its obligations under this Agreement or be
otherwise important in the context of the sale of the Shares.
(i) The Company is the sole and exclusive owner of all right,
title and interest in the United States registered trademarks and
service marks, and in any corresponding foreign registered trademarks
and service marks (collectively, "Registered Marks"). The Company has
applied for United States trademarks and service marks, and for
corresponding foreign registered trademarks and service marks for
[_____] (collectively, the "Applied Marks"). The Company has not
allowed any Applied Marks or Registered Marks to be abandoned,
canceled, or to lapse. The Company has no knowledge of claims, actions,
or proceedings, pending or threatened, challenging the validity of any
of the Registered Marks or the registration of any Applied Marks.
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(ii) The Company has no knowledge of the existence of
trademarks or service marks, or trademark or service xxxx applications,
owned by third parties that may have, individually or in the aggregate,
a Material Adverse Effect on the Company and its subsidiaries taken as
a whole or adversely affect the ability of the Company to perform its
obligations under this Agreement or otherwise be important in the
context of the sale of the Shares.
(iii) The Company has registered with Network Solutions, Inc.
the internet domain names XXXX.xxx, XXXXX.xxx and XXXXXXXX.xxx (the
"Internet Domain Names"), and has administrative control over all such
Internet Domain Names. The Company has no knowledge of a registered
trademark held by a third party that may be used to prevent the Company
from using the Internet Domain Names.
(iv) The Company has taken all economically reasonable steps
to secure, protect, and maintain the Registered Marks, the Applied
Marks, and the three Internet Domain Names.
(v) The Company and the Subsidiaries have filed on a timely
basis with the appropriate taxing authorities (or have received an
extension for filing with respect to) all necessary federal, state and
foreign income and franchise tax returns, reports and other information
required to be filed by them. Each such tax return, report or other
information was, when filed, accurate and complete. The Company and the
Subsidiaries have duly paid, or have made adequate charges, accruals
and reserves in the financial statements for, all such taxes required
to be paid by them and any other assessment, fine or penalty levied
against them, for all periods as to which the tax liability of the
Company or the Subsidiaries has not been finally determined. No tax
deficiency has been or, to the best of the Company's knowledge, might
be asserted or contemplated against the Company or the Subsidiaries.
(vi) The Company and the Subsidiaries are insured by
recognized, financially sound and reputable institutions with policies
in such amounts and with such deductibles and covering such risks as
are generally deemed adequate and customary for their business
including, but not limited to, policies covering real and personal
property owned or leased by the Company and the Subsidiaries against
theft, damage, destruction, acts of vandalism and earthquakes, general
liability and directors and officers liability, all of which insurance
is in full force and effect. The Company has no reason to believe that
it or the Subsidiaries will not be able to (A) renew its existing
insurance coverage as and when such policies expire or (B) obtain
comparable coverage from similar institutions as may be necessary or
appropriate to conduct its business as now conducted and at a cost that
would not result in a Material Adverse Effect on the Company and its
subsidiaries taken as a whole or adversely affect the ability of the
Company to perform its obligations under this Agreement or be otherwise
important in the context of the sale of the Shares. Neither of the
Company nor the Subsidiaries has been denied any insurance coverage
which it has sought or for which it has applied.
(vii) Neither the Company nor any of the Subsidiaries is
involved in any labor dispute, disturbance, lockout, slowdown or
stoppage of employees, and, to the best knowledge of the Company, no
such dispute or disturbance is threatened or imminent.
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The Company is not aware of any existing or imminent labor disturbance
by the employees of any of its principal suppliers, subassemblers,
value added resellers, subcontractors, original equipment
manufacturers, authorized dealers or international distributors that
could result in a Material Adverse Effect on the Company and its
subsidiaries taken as a whole or adversely affect the ability of the
Company to perform its obligations under this Agreement or be otherwise
important in the context of the sale of the Shares.
(viii) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws on the business,
operations and properties of the Company and the Subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws (as defined below), or any Permit, any related
constraints on operating activities and any potential liabilities to
third parties). On the basis of such review, the Company has reasonably
concluded that the Company and the Subsidiaries (A) are in compliance
with all applicable foreign, United States federal, state and local
environmental laws, rules, regulations, treaties, statutes and codes
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (B) have received all Permits required of them
under applicable Environmental Laws to conduct their business as
currently conducted, (C) are in compliance with all terms and
conditions of any such Permit and (D) have not received notice of any
actual or potential liability for the investigation or remediation of
any disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants. No action, proceeding, revocation
proceeding, writ, injunction or claim is pending or threatened relating
to the Environmental Laws or to the Company's or the Subsidiaries'
activities involving Hazardous Materials. "Hazardous Materials" means
any material or substance (A) that is prohibited or regulated by any
Environmental Law or (B) that has been designated or regulated by any
governmental body or authority as radioactive, toxic, hazardous or
otherwise a danger to health, reproduction or the environment. Neither
the Company nor any of the Subsidiaries has been named as a
"potentially responsible party" under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended.
(ix) Neither the Company nor any of the Subsidiaries has
engaged in the generation, use, manufacture, transportation or storage
of any Hazardous Materials on any of the Company's or the Subsidiaries'
properties or former properties. No Hazardous Materials have been
treated or disposed of on any of the Company's or the Subsidiaries'
properties or on properties formerly owned or leased by the Company or
the Subsidiaries during the time of such ownership or lease, except in
compliance with Environmental Laws.
(x) No payments or inducements have been made or given,
directly or indirectly, to any federal or local official or candidate
for, any federal or state office in the United States or foreign
offices by the Company or the Subsidiaries, by any of their officers,
directors, employees or agents or, to the best knowledge of the
Company, by any other person in connection with any opportunity,
Contract, Permit, certificate, consent,
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order, approval, waiver or other authorization relating to the business
of the Company or the Subsidiaries, except for such payments or
inducements as were lawful under applicable written laws, rules and
regulations. Neither the Company nor any of the Subsidiaries, nor any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or the Subsidiaries, (A) has used any
corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; (B) made any
direct or indirect unlawful payment to any government official or
employee from corporate funds; (C) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or (D) made any
bribe, unlawful rebate, payoff, influence payment, kickback or other
unlawful payment in connection with the business of the Company or the
Subsidiaries.
(xi) Neither the Company nor any of the Subsidiaries has any
liability for any prohibited transaction (within the meaning of Section
4975(c) of the Internal Revenue Code of 1986, as amended (the "Code")
or Part 4 of Title I of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")) (or an accumulated funding deficiency
within the meaning of Section 412 of the Code or Section 302 of ERISA)
or any complete or partial withdrawal liability (within the meaning of
Section 4201 of ERISA), with respect to any pension, profit sharing or
other plan which is subject to ERISA, to which the Company and the
Subsidiaries make or ever have made a contribution and in which any
employee of the Company and Subsidiaries is or has ever been a
participant. With respect to such plans, the Company and the
Subsidiaries are in compliance in all material respects with all
applicable provisions of ERISA.
(xii) The Company and the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management's general or specific authorization, (B) transactions are
appropriately recorded to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets, (C) access to assets is permitted
only in accordance with management's general or specific authorization,
(D) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences and (E) assets are properly accounted for
and safeguarded against loss from unauthorized use. The Company has not
received from its independent public accountants a letter describing or
been informed by them of, a substantial or material deficiency in the
Company's internal accounting controls in connection with their audit
of the Company's financial statements included in the Registration
Statement, the preliminary prospectus and the Prospectus.
(xiii) There are no outstanding loans, advances (except normal
advances for business expenses in the ordinary course of business) or
guarantees of indebtedness by the Company or the Subsidiaries to or for
the benefit of any of the officers or directors or shareholders of the
Company or the Subsidiaries or any of the members of the families of
any of them, except as disclosed in the Registration Statement, the
preliminary prospectus and the Prospectus.
(xiv) No consent, approval, registration, authorization,
filing, qualification, Permit or order of or with any court or
supervisory, regulatory, administrative or
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governmental agency, body or authority, arbitrator or others (including
security holders) is required in connection with the execution and
delivery of this Agreement, the issuance, sale or delivery of the
Shares to be issued, sold and delivered by the Company hereunder, or
the consummation of any other of the transactions contemplated herein
or the fulfillment of the terms hereof, except the registration under
the Act of the Shares and such consents, approvals, registrations,
authorizations, filings, qualifications, Permits or orders, as may be
required under the state securities or "blue sky" laws or the bylaws
and rules of the National Association of Securities Dealers, Inc. (the
"NASD") or as have been obtained and which are in full force and effect
in connection with the offer, purchase and distribution by the
Underwriters of the Shares.
(xv) The execution, delivery and performance by the Company of
this Agreement and the issuance and sale of the Shares and the
consummation of the transactions contemplated herein have been duly
authorized by all necessary corporate action. Neither the issuance,
offer, sale or delivery of the Shares, the execution, delivery and
performance by the Company of this Agreement nor the compliance by the
Company with all the provisions hereof nor the consummation of the
transactions contemplated hereby (A) conflicts with or will conflict
with, or constitutes or will constitute a breach or violation of or a
default under (or an event that, with notice or lapse of time or both,
would constitute such a breach, violation or default), or results in or
will result in the imposition of a Lien upon any property or assets of
the Company or the Subsidiaries, under, any of the terms or provisions
of the certificate of incorporation or by-laws or other organizational
or constitutive documents of the Company or the Subsidiaries, nor (B)
conflicts with or will conflict with or constitutes or will constitute
a breach or violation of, or a default under (or an event that with
notice or the lapse of time or both would constitute a default) or the
loss of any material benefit under, or the termination of, or results
in or will result in the creation or imposition of any Lien upon any
property or assets of the Company or the Subsidiaries pursuant to, any
Contract, nor (C) violates or conflicts with or will violate or
conflict with any law, statute, rule or regulation applicable to the
Company or the Subsidiaries or any judgment, decree or order applicable
to the Company or the Subsidiaries of any court or supervisory,
regulatory, administrative or governmental agency, body or authority,
or arbitrator having jurisdiction over the Company or the Subsidiaries
or any of their respective properties or assets.
(xvi) The Company has full power and authority to enter into
this Agreement and to perform the transactions contemplated hereby.
This Agreement and the transactions contemplated herein have been duly
and validly authorized, executed and delivered by the Company and this
Agreement constitutes the legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except as the enforceability thereof may be limited by (A) applicable
bankruptcy, insolvency, reorganization, moratorium or other laws now or
hereafter in effect relating to or affecting creditors' rights
generally and (B) general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law) and
except to the extent that the provisions of Section 6 hereof may be
limited by applicable federal or state securities laws or unenforceable
as against public policy.
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(xvii) The Company has duly and validly authorized the
issuance and sale of the Shares. The description of the Shares in the
Registration Statement, the preliminary prospectus and the Prospectus
is accurate in all material respects.
(xviii) The Company is not now, and as a result of the offer
and sale of the Shares in the manner contemplated in this Agreement,
the Registration Statement, the preliminary prospectus and the
Prospectus and the application of the net proceeds of such sale as
described in the Registration Statement, the preliminary prospectus and
the Prospectus, will not be, an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "Investment Company Act"), without taking
account of any exemption arising out of the number or type of holders
of the Company's securities.
(xix) The Company has not incurred any liability for a fee,
commission, or other compensation on account of the employment of a
broker or finder in connection with the transactions contemplated by
this Agreement other than the discount contemplated hereby.
(xx) Neither the Company nor any of the Subsidiaries nor, to
the Company's best knowledge, any of its or their officers, directors
or affiliates (as defined in Rule 501(b) of Regulation D ("Regulation
D") under the Act) has taken or will take, directly or indirectly, any
action designed to cause or to result in or that has constituted, or
might reasonably be expected to cause or result in or constitute, under
the Exchange Act, the Exchange Act Rules or otherwise, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(xxi) The Company has not distributed and will not distribute
prior to the later of (A) the Additional Closing Date and (B) the
completion of the distribution of the Shares by the Underwriters and
dealers, any offering material (including, without limitation, content
on its Website, if any, that may be deemed to be offering material) in
connection with the offering and sale of the Shares other than the
preliminary prospectus and the Prospectus.
(xxii) There are no holders of securities of the Company which
by reason of the filing of the Registration Statement or otherwise in
connection with the sale of the Shares contemplated hereby, have the
right to request or demand that the Company register under the Act any
of their securities in connection with the Registration Statement .
(xxiii) There is no tax, duty, levy, impost, deduction, charge
or withholding imposed by any political subdivision or taxing authority
by virtue of the execution, delivery, performance or enforcement, or to
ensure the legality, validity or admissibility into evidence, of this
Agreement, and neither is it necessary that the Shares be submitted to,
or filed or recorded with, any court or other authority to ensure such
legality, validity, enforceability or admissibility into evidence.
There are no transfer taxes or other similar fees or charges under
federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and
delivery of this Agreement or the issuance and sale by the Company of
the Shares.
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(xxiv) All necessary actions, authorizations, conditions and
things required to be taken, given, fulfilled and done by the Company
and the Subsidiaries on or prior to the date of this Agreement, have
been, or on the Closing Date or the Additional Closing Date, if any,
will have been taken, given, fulfilled and done in connection with (A)
the issue of the Prospectus, (B) the execution and delivery of this
Agreement, (C) the execution, delivery and issuance of the Shares and
(D) the compliance with all provisions of this Agreement to be
performed or complied with by such date.
(xxv) There are no issues related to the Company's or the
Subsidiaries' preparedness for the Year 2000 that (A) are of a
character required to be described or referred to in the Registration
Statement, the preliminary prospectus or Prospectus which have not been
accurately described therein or (B) could result in any Material
Adverse Effect on the Company and its subsidiaries taken as a whole or
that might materially affect their properties, assets or rights. All
internal computer systems and each Constituent Component of those
systems and all computer-related products and each Constituent
Component of those products of the Company and the Subsidiaries fully
comply with Year 2000 Qualification Requirements. "Year 2000
Qualification Requirements" means that the internal computer systems
and each Constituent Component of those products of the Company and the
Subsidiaries (A) have been reviewed to confirm that they store, process
(including sorting and performing mathematical operations, calculations
and computations), input and output data containing date and
information correctly regardless of whether the date contains dates and
times before, on or after January 1, 2000, (B) have been designed to
ensure date and time entry recognition and calculations, and date data
interface values that reflect the century, (C) accurately manage and
manipulate data involving dates and times, including single century
formulas and multi-century formulas, and will not cause an abnormal
ending scenario within the application or generate incorrect values or
invalid results involving such dates, (D) accurately process any date
rollover and (E) accept and respond to two-digit year date input in a
manner that resolves any ambiguities as to the century. "Constituent
Component" means all software (including operating systems, programs,
packages and utilities), firmware, hardware, networking components, and
peripherals provided as part of the configuration. The Company and the
Subsidiaries have inquired of all their material vendors as to their
preparedness for the Year 2000 and the Company has disclosed in the
Registration Statement, the preliminary prospectus or Prospectus any
issues that could result in a Material Adverse Effect on the Company
and its subsidiaries taken as a whole or adversely affect the ability
of the Company to perform its obligations under this Agreement or be
otherwise important in the context of the sale of the Shares.
(xxvi) No statement, representation, warranty or covenant made
by the Company in this Agreement or made in any certificate or document
required by this Agreement to be delivered to you was or will be, when
made, inaccurate, untrue or incorrect.
(xxvii) The Shares are registered pursuant to Section 12(g) of
the Exchange Act and are listed on the Nasdaq National Market, and the
Company has taken no action designed to, or likely to have the effect
of, terminating the registration of the Shares under the Exchange Act
or delisting the Shares from the Nasdaq National Market, nor has
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the Company received any notification that the Commission or the NASD
is contemplating terminating such registration or listing.
(xxviii) Except as described in the Registration Statement,
the preliminary prospectus and the Prospectus, the Company has not sold
or issued any shares of capital stock within the six month period
preceding the date of the Prospectus, all of which sales and issuances
were made in compliance with the Act and the Regulations.
(xxix) Each officer and director of the Company and each
beneficial owner of [one or more] percent of the outstanding issued
share capital of the Company has agreed to sign an agreement
substantially in the form attached hereto as Exhibit A (the "Lock-up
Agreements"). The Company has provided to counsel for the Underwriters
a complete and accurate list of all securityholders of the Company and
the number and type of securities held by each securityholder. The
Company also has provided to counsel for the Underwriters true,
accurate and complete copies of all of the Lock-up Agreements presently
in effect or effected hereby. The Company has given "no transfer"
instructions to its transfer agent and registrar with respect to such
securities.
(xxx) Neither the Company nor any of the Subsidiaries nor any
of its or their properties or assets has any immunity from the
jurisdiction of any court or from any legal process (whether through
service or notice, attachment prior to judgment, attachment in aid of
execution or otherwise) under the laws of Delaware.
(c) Any certificate signed by an officer of the Company or any
of the Subsidiaries and delivered to the Representative or to counsel for the
Underwriters shall be deemed to be a representation and warranty by the Company
to each Underwriter as to the matters set forth therein.
(d) Each Selling Shareholder severally and not jointly
covenants and agrees with each of the Underwriters that:
(i) Such Selling Shareholder has full legal right, power and
authority to enter into the Agreement and the Agency and Custody
Agreement, dated February [_], 2000 (the "Agency and Custody
Agreement"), between the Selling Shareholders, (collectively, the
"Agent"), in the form heretofore delivered to counsel to the
Underwriters. The Agency and Custody Agreement has been duly executed
and delivered by or on behalf of such Selling Shareholder.
(ii) None of the execution, delivery or performance of this
Agreement and the Agency and Custody Agreement and the consummation of
the transactions herein and therein contemplated, will conflict with or
result in a breach of, or default under, any indenture, mortgage, deed
of trust, voting trust agreement, Shareholders' agreement, note
agreement, or other agreement or 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 its or his property is or may be subject,
or any statute, judgment, decree, order, rule or regulation applicable
to such Selling Shareholder of any government, arbitrator, court,
regulatory body or administrative agency or other governmental agency
or body, domestic or
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foreign, having jurisdiction over such Selling Shareholder or any of
its or his activities or properties.
(iii) At the date hereof such Selling Shareholder has, and at
the time of delivery of the Shares to be sold by such Selling
Shareholder to the several Underwriters, such Selling Shareholder will
have, full right, power and authority to sell, assign, transfer and
deliver the Shares to be sold by such Selling Shareholder hereunder. At
the date hereof such Selling Shareholder is, and at the time of
delivery of the Shares to be sold by such Selling Shareholder, such
Selling Shareholder will be, the lawful owner of and has and will have,
good and marketable title to such Shares free and clear of any liens,
encumbrances, security interests, claims, community property rights,
restrictions on transfer or other defects in title. Upon delivery of
and payment for the Shares to be sold by such Selling Shareholder
hereunder, good and marketable title to such Shares will pass to the
Underwriters, free and clear of any liens, encumbrances, security
interests, claims, community property rights, restrictions on transfer
or other defects in title. Except as described in the Registration
Statement and the Prospectus or created hereby, there are no
outstanding options, warrants, rights, or other agreements or
arrangements requiring such Selling Shareholder at any time to transfer
any Common Shares to be sold hereunder by such Selling Shareholder.
(iv) At the Effective Date, and at all times subsequent
thereto up to and including the Closing Date (and if any Option Shares
are purchased, the Option Closing Date), the Registration Statement and
any amendments thereto did not and will not contain any untrue
statement of a material fact regarding such Selling Shareholder or omit
to state a material fact regarding such Selling Shareholder required to
be stated therein or necessary in order to make the statements therein
regarding such Selling Shareholder not misleading, and the Prospectus
did not and will not contain any untrue statement of a material fact
regarding such Selling Shareholder or omit to state a material fact
regarding such Selling Shareholder required to be stated therein or
necessary in order to make the statements therein regarding such
Selling Shareholder, in light of the circumstances under which they
were made, not misleading.
(v) Such Selling Shareholder has not taken, directly or
indirectly, any action designed to stabilize or manipulate the price of
any security of the Company, or which has constituted or which might in
the future reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company, to
facilitate the sale or resale of the Shares or otherwise.
(vi) There is not pending or, to the knowledge of such Selling
Shareholder, threatened against such Selling Shareholder any action,
suit or proceeding which (A) questions the validity of this Agreement
or of any action taken or to be taken by such Selling Shareholder
pursuant to or in connection with this Agreement or (B) is required to
be disclosed in the Registration Statement or the Prospectus.
(vii) Except as created hereby, there are no outstanding
rights, warrants or options to acquire any of the Shares to be sold by
such Selling Shareholder.
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(viii) This Agreement has been duly executed and delivered by
or on behalf of such Selling Shareholder. This Agreement is a valid and
binding agreement of such Selling Shareholder enforceable against such
Selling Shareholder in accordance with its terms, except as enforcement
hereof may be limited by bankruptcy, insolvency and other similar laws
affecting the enforcement of creditors' rights generally and subject to
the qualifications that equitable remedies may be granted in the
discretion of a court of competent jurisdiction and rights of
indemnity, contribution and waiver and the ability to sever
unenforceable terms may be limited by applicable law.
(ix) The execution and delivery of this Agreement by or on
behalf of such Selling Shareholder and the performance by such Selling
Shareholder of the transactions contemplated herein do not and will not
require the consent, license, order, approval, authorization,
registration or qualification of or decree of any court or any
governmental agency or body, stock exchange (including, for greater
certainty, the Nasdaq National Market) or other third party, except (A)
such as have been obtained, and (B) such as may be required (and shall
be obtained as provided in this Agreement) under U.S. Securities Laws
and such as may be required under U.S. state securities or Blue Sky
laws or the by-laws and rules of the Nasdaq National Market.
(x) To the best of such Selling Shareholder's knowledge, the
Shares to be sold by such Selling Shareholder have been validly issued
as fully paid and non-assessable shares.
(xi) Except as provided herein, there is no person, firm or
company which has been engaged by such Selling Shareholder to act for
such Selling Shareholder and which is entitled to any brokerage or
finder's fee in connection with this Agreement or any of the
transactions contemplated hereunder, and in the event any such person,
firm or company establishes a claim for any fee from the Underwriters,
such Selling Shareholder covenants to indemnify and hold harmless the
Underwriters with respect thereto and with respect to all costs
reasonably incurred in the defense thereof.
(xii) At the Closing Date (and if any Option Shares are
purchased, the Option Closing Date), all stock transfer or other taxes,
if any (other than income taxes), which are required to be paid in
connection with the sale and transfer of the Shares to be sold by such
Selling Shareholder to the several Underwriters hereunder will have
been fully paid or provided for by such Selling Shareholder and all
laws imposing such taxes will have been fully complied with by such
Selling Shareholder.
(xiii) Such Selling Shareholder has no knowledge of any
material fact or condition not set forth in the Prospectus and the
Registration Statement which has adversely affected, or may adversely
affect, the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Company, and
the sale of the Shares proposed to be sold by such Selling Shareholder
is not prompted by any such knowledge.
(xiv) Certificates in negotiable form (or some other document
or documents in written form as may be mutually agreed upon by or on
behalf of the Representative and such Selling Shareholder) representing
all of the Shares to be sold by such Selling
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Shareholder hereunder have been placed in custody under the Agency and
Custody Agreement, duly executed and delivered by such Selling
Shareholder to the Agent, as custodian, and such Selling Shareholder
has, pursuant to the Agency and Custody Agreement, appointed the Agent
as its or his agent and attorney in fact with authority to execute and
deliver this Agreement on behalf of such Selling Shareholder, to
determine the purchase price to be paid by the Underwriters to the
Selling Shareholders as provided in Section 2 hereof, and to authorize
the delivery of the Shares to be sold by such Selling Shareholders in
connection with the transactions contemplated by this Agreement and the
Agency and Custody Agreement.
(xv) The Shares represented by the certificates (or some other
document or documents in written form as may be mutually agreed upon by
or on behalf of the Representative and such Selling Shareholder) held
in custody for such Selling Shareholder under the Agency and Custody
Agreement are subject to the interests of the Underwriters hereunder;
the arrangements made by such Selling Shareholder for such custody, and
the appointment by such Selling Shareholder of the Agent by the Agency
and Custody Agreement, are to that extent irrevocable and not subject
to termination by such Selling Shareholder or by operation of law; the
obligations of such Selling Shareholders hereunder shall not be
terminated by operation of law, whether by the death or incapacity of
such Selling Shareholder, if an individual, or, in the case of an
estate or trust, by the death or incapacity of any executor or trustee
or the termination of such estate or trust or, in the case of a
partnership or corporation, by the dissolution of such partnership or
corporation, or by the occurrence of any other event; if such Selling
Shareholder, if an individual, or any such executor or trustee should
die or become incapacitated, or if any such estate or trust should be
terminated, or if any such partnership or corporation should be
dissolved, or if any other such event should occur, before the delivery
of the Shares hereunder, certificates representing the Shares shall be
delivered by or on behalf of such Selling Shareholder in accordance
with the terms and conditions of this Agreement and of the Agency and
Custody Agreement and all other actions required to be taken hereunder
or under the Agency and Custody Agreement shall be taken; and actions
taken by the Agent pursuant to the Agency and Custody Agreement shall
be as valid as if such death, incapacity, termination, dissolution or
other event had not occurred, regardless of whether or not, the Agent
shall have received notice of such death, incapacity, termination,
dissolution or other event.
2. Purchase, Sale and Delivery of the Shares.
(a) The Company and the Selling Shareholders agree to issue
and sell to the several Underwriters the Firm Shares upon the terms
herein set forth. On the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and
conditions herein set forth, the Underwriters, severally and not
jointly, agree to purchase from the Company and the Selling
Shareholders, at a purchase price per share of $[ ], the number of Firm
Shares set forth opposite the respective names of the Underwriters in
Schedule II hereto plus an additional number of Firm Shares which such
Underwriter may become obligated to purchase pursuant to the provisions
of Section 9 hereof.
(b) Payment of the purchase price for, and delivery of, the
Firm Shares and the Option Shares (if the option provided for in
Section 2(c) below shall have been exercised on or
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before the third full business day prior to the Closing Date) shall be
made at the offices of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, 200 Park
Avenue, New York, New York, or at such other place as shall be agreed
upon by ING Barings LLC and the Company, at 10:00 A.M. on the third
full business day (as permitted under Rule 15c6-1 of the Exchange Act
Rules) (unless postponed in accordance with the provisions of Section 9
hereof) following the date of the effectiveness of the Registration
Statement (or, if the Company or the Selling Shareholders have elected
to rely upon Rule 430A of the Regulations, the third or fourth full
business day (as permitted under Rule 15c6-1 under the Exchange Act
Rules) after the determination of the initial public offering price of
the Firm Shares), or such other time not later than five business days
after such date as shall be agreed upon by you and the Company and the
Selling Shareholders (such time and date of payment and delivery being
herein called the "Closing Date"); provided, however, that if the
Company and the Selling Shareholders have not made available to the
Underwriters copies of the Prospectus in such quantities and at such
places requested by the Underwriters, no later than noon on the
business day following the execution of this Agreement, ING Barings LLC
may, in its sole discretion, postpone the Closing Date until no later
than two full business days following the delivery of such copies of
the Prospectus. Payment shall be made to the Company and the Selling
Shareholders by wire transfer in immediately available funds to the
order of the Company and the Selling Shareholders, against delivery to
you for the respective accounts of the Underwriters of the Firm Shares
to be purchased by them. The Company and the Selling Shareholders shall
deliver, or cause to be delivered, a credit representing the Firm
Shares to an account or accounts at The Depository Trust Company, as
designated by ING Barings LLC for the accounts of ING Barings LLC and
the several Underwriters on the Closing Date, against the irrevocable
release of a wire transfer of immediately available funds for the
amount of the purchase price therefor. Certificates for the Firm Shares
shall be registered in such name or names and in such authorized
denominations as you may request on or before noon on the business day
prior to the Closing Date. The Company and the Selling Shareholders
will permit you to examine and package such certificates at or before
noon on the business day prior to the Closing Date. ("Business day"
shall mean any day other than a Saturday, Sunday or a legal holiday or
a day on which banking institutions or trust companies are authorized
or obligated by law to close in New York City.")
(c) In addition, the Company hereby grants to the Underwriters
the option to purchase, severally and not jointly, up to 750,000 Option
Shares at the same purchase price per share to be paid by the
Underwriters to the Company for the Firm Shares as set forth in this
Section 2, for the sole purpose of covering over-allotments in the sale
of Firm Shares by the Underwriters. This option may be exercised from
time to time and at any time, in whole or in part, on or before the
thirtieth day following the date of the Prospectus, by notice from ING
Barings LLC to the Company. Such notice shall set forth the aggregate
number of Option Shares as to which the option is being exercised and
the date and time, as reasonably determined by ING Barings LLC, when
the Option Shares are to be delivered (such date and time being herein
sometimes referred to as the "Additional Closing Date"); provided,
however, that the Additional Closing Date shall not be earlier than the
Closing Date or earlier than the second full business day after the
date on which the option shall have been exercised nor later than the
fifth full business day after the date on which the option shall have
been exercised (unless such time and date are postponed in accordance
with the provisions of Section 9 hereof). The Company shall deliver, or
cause to be delivered, a credit representing the Option Shares to an
account or accounts at The Depository Trust Company, as designated by
ING Barings LLC for the accounts of ING Barings LLC and the several
Underwriters on the Additional Closing Date, against the irrevocable
release of a wire transfer of immediately available funds for the
amount of the purchase price therefor.
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Certificates for the Option Shares shall be registered in such name or names and
in such authorized denominations as ING Barings LLC may request at or before
noon on the business day prior to the Additional Closing Date. The Company will
permit you to examine and package such certificates for delivery at or before
noon on the business day prior to the Additional Closing Date.
The number of Option Shares to be sold to each Underwriter
shall be the number which bears the same ratio to the aggregate number of Option
Shares being purchased as the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule II hereto (or such number increased as set forth
in Section 9 hereof) bears to the total number of Firm Shares being purchased
from the Company, subject, however, to such adjustments to eliminate any
fractional shares as ING Barings LLC in its sole discretion shall make.
Payment for the Option Shares shall be made by wire transfer
in immediately available funds to the order of the Company as noted above, at
the offices of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP or such other location as may
be mutually acceptable, upon delivery of the Option Shares to you for the
respective accounts of the Underwriters.
The Company shall deliver, or cause to be delivered a credit
representing the Option Shares the Underwriters have agreed to purchase on the
Additional Closing Date to an account or accounts at The Depository Trust
Company as designated by ING Barings LLC for the accounts of ING Barings LLC and
the several Underwriters against the irrevocable release of a wire transfer of
immediately available funds for the amount of the purchase price therefor.
(d) Time shall be of the essence and delivery at the time and
place specified in this Agreement is a further condition to the obligations of
the Underwriters.
3. Offering. It is understood that the several Underwriters
propose to offer the Shares for sale to the public upon the terms set forth in
the Prospectus.
4. Covenants of the Company and the Selling Shareholders.
(a) The Company covenants and agrees with each Underwriter
that:
(i) If the Registration Statement has not been declared
effective at the time of the execution of this Agreement, the Company
will use its best efforts to cause the Registration Statement and any
amendments thereto to become effective as promptly as possible. If Rule
430A is used or the filing of the Prospectus is otherwise required
under Rule 424(b) or Rule 434, the Company will file the Prospectus
(properly completed if Rule 430A has been used) pursuant to Rule 424(b)
or Rule 434 within the prescribed time period and will provide evidence
satisfactory to you of such timely filing. If the Company elects to
rely on Rule 434, the Company will prepare and file a term sheet that
complies with the requirements of Rule 434. If the Company elects to
rely on Rule 462(b) under the Act, the Company shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule
462(b) under the Act prior to the time confirmations are sent or given,
as specified by Rule 462(b)(2) under the Act, and shall pay the
applicable fees in accordance with Rule 111 under the Act.
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The Company will notify you immediately (and, if requested by
you, will confirm such notice in writing) (A) when the Registration Statement
and any amendments thereto become effective, (B) of any request by the
Commission for any amendment of or supplement to the Registration Statement, any
preliminary prospectus or the Prospectus or for additional information, (C) of
the mailing or the delivery to the Commission for filing of any amendment of or
supplement to the Registration Statement or the Prospectus, (D) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto or of the
initiation, or the threatening, of any proceedings therefor, (E) of the receipt
of any comments from the Commission, and (F) of the receipt by the Company of
any notification with respect to the suspension of the qualification of the
Shares for sale in any jurisdiction or the initiation or threatening of any
proceeding for that purpose. If a stop order or suspension of qualification is
proposed at any time, the Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain the lifting thereof as
soon as possible. The Company will not file any amendment to the Registration
Statement or any amendment of or supplement to, any preliminary prospectus or
the Prospectus (including the prospectus required to be filed pursuant to Rule
424(b) or Rule 434) that differs from the prospectus on file at the time of the
effectiveness of the Registration Statement before or after the effective date
of the Registration Statement to which you shall reasonably object in writing
after being timely furnished in advance a copy thereof.
(ii) If at any time when a prospectus relating to the Shares
is required to be delivered under the Act by an Underwriter or dealer any event
shall have occurred as a result of which the Prospectus as then amended or
supplemented would, in the judgment of ING Barings LLC, counsel to the
Underwriters or the Company, include 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 or if it shall be necessary at any
time to amend or supplement the Registration Statement, the preliminary
prospectus or the Prospectus to comply with any law, the Company promptly will
prepare and file with the Commission and furnish at its own expense to the
Underwriters and dealers, an appropriate amendment or supplement (in form and
substance satisfactory to ING Barings LLC) which will correct such untrue
statement or omission or so that the Registration Statement, any preliminary
prospectus and the Prospectus will comply with the law and will use its best
efforts to have any amendment to the Registration Statement declared effective
as soon as possible. If at any time during the ninety (90) day period after the
Registration Statement becomes effective, any rumor, publication or event
relating to or affecting the Company shall occur as a result of which in the
opinion of ING Barings LLC the market price of the Shares has been or is likely
to be materially affected (regardless of whether such rumor, publication or
event necessitates a supplement to or amendment of the Prospectus), the Company
will, after notice from ING Barings LLC advising the Company to the effect set
forth above, forthwith prepare, consult with ING Barings LLC concerning the
substance of and disseminate a press release or other public statement,
reasonably satisfactory to ING Barings LLC, responding to or commenting on such
rumor, publication or event.
(iii) As soon as practicable, but not later than 45 days after
the end of its fiscal quarter in which the first anniversary date of
the effective date of the Registration
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Statement occurs, the Company will make generally available (within the
meaning of Section 11(a) of the Act) to its securityholders and to you
an earnings statement or statements of the Company which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 of the
Regulations, covering a period of at least twelve consecutive months
beginning after the effective date of the Registration Statement; and
will, during the period of five years from the date of the Prospectus,
make generally available (within the meaning of Section 11(a) of the
Act) to its securityholders as soon as practicable after the end of
each fiscal year, an annual report (including a balance sheet and
statements of financial condition, operations, cash flows and changes
in Shareholders' equity of the Company, certified by the Company's
independent public accountants) and, as soon as practicable after the
end of each of the first three quarters of each fiscal year (beginning
with the fiscal quarter ending after the effective date of the
Registration Statement), consolidated summary financial information of
the Company for such quarter in reasonable detail
(iv) The Company will furnish without charge to you and
counsel to the Underwriters two complete, signed copies of the
Registration Statement (including exhibits thereto), and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as, in the opinion of counsel to the
Underwriters, delivery of a prospectus by an Underwriter or dealer may
be required by the Act, as many copies of each preliminary prospectus
and the Prospectus and any amendment or supplement thereto as you may
request.
(v) The Company will arrange for the qualification of the
Shares for sale under the laws of such jurisdictions (both national and
foreign) as ING Barings LLC may designate and will make such
applications, file such documents and furnish such information as may
be required for that purpose and will maintain such qualifications in
effect for so long as required for the distribution of the Shares;
provided, however, that in no event shall the Company be required to
qualify to do business in any such jurisdiction in which it is not
already qualified or to file a general consent to service of process in
any jurisdiction in which it is not now so required, other than in
respect of suits arising out of the offering or sale of the Shares. The
Company will, from time to time, prepare and file such statements,
reports and other documents, as are or may be required to continue such
qualifications in effect for so long a period as ING Barings LLC may
request for the distribution of the Shares. The Company will cooperate
with ING Barings LLC and counsel to the Underwriters in connection with
the filings required to be made by ING Barings LLC with the NASD and
will pay the fee of the NASD in connection with its review of the
offering of the Shares and will use its best efforts to cause the
Shares to be quoted on the Nasdaq National Market System.
(vi) During the period of five years from the effective date
of the Registration Statement, the Company will furnish to you and,
upon request, to each of the several Underwriters, without charge,
copies of, in such quantities as you or the Underwriters may request
from time to time, (A) as soon as available, all reports or other
communications (financial or other) furnished generally by the Company
to its securityholders, (B) as soon as practicable after the end of
each fiscal year, copies of the Annual Report of the Company containing
the balance sheet of the Company as of the close of such fiscal year
and statements of income, Shareholders' equity and cash flows
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for the year then ended and the opinion thereon of the Company's
independent public or certified public accountants; and (C) as soon as
practicable after the filing thereof, copies of each proxy statement,
Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current
Report on Form 8-K or other report filed by the Company with the
Commission, the NASD, any other supervisory, regulatory, administrative
or governmental agency, body or authority whether pursuant to the
Exchange Act or otherwise or any national securities exchange or system
on which any class of securities of the Company is listed or quoted.
(vii) For a period of 180 days from the date of the Prospectus
(the "Lock-Up Period"), without the prior written consent of ING
Barings LLC, the Company shall not, directly or indirectly: (A) issue,
offer for sale, contract to sell, sell, pledge or otherwise dispose of
(or enter into any transaction or device which is designed to, or could
be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by any person at any time in the future of) any shares of
Common Stock or securities convertible into, exercisable or
exchangeable for, or represent the right to receive, Common Stock or
sell or grant options, rights or warrants with respect to any shares of
Common Stock or any of the foregoing or announce the offering of or
register for sale any of the foregoing or any outstanding shares of
Common Stock; provided however, that the Company may grant options and
issue and sell Common Stock pursuant to or in connection with (i) any
directors' and/or employees' stock plan, stock ownership plan or
dividend reinvestment plan of the Company in effect at the effective
date of the Registration Statement, (ii) the exercise of any
outstanding options or warrants and (iii) any acquisitions the Company
may complete during such 180 day period; or (B) enter into any swap,
repurchase agreement, pledge, transfer or other transaction that
transfers to another, in whole or in part, any of the economic benefits
or risks of ownership of such shares of Common Stock or other
securities, whether any such transaction described in clause (A) or (B)
above is to be settled by delivery of Common Stock or other securities,
in cash or otherwise. In addition, during such period, the Company also
agrees not to file any registration statement (other than a Form S-8
registration statement filed in connection with shares of Common Stock
received under a Company directors' and employees' stock plan, stock
ownership plan, employment agreement or dividend reinvestment plan)
with respect to the registration of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common
Stock without the prior written consent of ING Barings LLC.
(viii) During the period when, in the opinion of counsel to
the Underwriters, the delivery of a Prospectus by an Underwriter or
dealer may be required by the Act, the Company will comply, at its own
expense, with all requirements imposed upon it by the Commission, the
Act, the Exchange Act, the Regulations or the Exchange Act Rules, so
far as necessary to permit the continuance of sales of or dealing in
the Shares during such period in accordance with the provisions hereof
and the Prospectus. In addition, during such period the Company shall
file, on a timely basis, with the Commission and the Nasdaq National
Market all reports and documents required to be filed under the
Exchange Act.
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(ix) Each of the Company and the Subsidiaries will conduct its
business in compliance with all applicable laws, rules, regulations,
decisions, directives and orders. The Company will do and perform all
things required or necessary to be done and performed under this
Agreement by the Company on or prior to the Closing Date and to comply
or cause to be satisfied, to the extent such are within its control,
the conditions precedent to the several obligations of the Underwriters
specified in Section 8 hereof.
(x) Neither the Company nor any of its affiliates (as defined
in Regulation D under the Act), will take, directly or indirectly, any
action designed to cause or result in, or which constitutes or which
might reasonably be expected to cause, result in, or constitute, under
the Exchange Act, or otherwise, stabilization or manipulation of the
price of the shares of Common Stock of the Company to facilitate the
offering and distribution of the Shares or any other action prohibited
by Regulation M under the Exchange Act.
(xi) The Company will apply the net proceeds from the offering
and sale of the Shares to be sold by the Company in the manner set
forth in the Prospectus under "Use of Proceeds."
(xii) The Company shall take all economically reasonable steps
to enforce the Patent Rights and all other Intellectual Property
against potential infringers.
(xiii) The Company shall engage and maintain, at its expense,
a registrar and transfer agent for the Shares.
(xiv) The Company shall (A) obtain directors' and officers'
liability insurance in the minimum amount of [$25] million which shall
apply to the offering contemplated hereby and (B) shall cause ING
Barings LLC to be added as an additional insured to such policy in
respect of the offering contemplated hereby. - - PENDING REVIEW OF THE
COMPANY'S EXISTING INSURANCE POLICIES.]
(xv) The Company shall cause to be prepared and delivered, at
its expense, within one business day from the date hereof, to the
Underwriters an "electronic Prospectus" to be used by the Underwriters
in connection with the offering and sale of the Shares. As used herein,
the term "electronic Prospectus" means a form of Prospectus, and any
amendment or supplement thereto, that meets each of the following
conditions: (A) it shall be encoded in an electronic format,
satisfactory to you, that may be transmitted electronically by the
Underwriters to offerees and purchasers of the Shares for at least
during the period when, in the opinion of counsel to the Underwriters,
the Prospectus is required to be delivered under the Act or the
Exchange Act; (B) it shall disclose the same information as the paper
Prospectus and Prospectus filed pursuant to XXXXX, except to the extent
that graphic and image material cannot be disseminated electronically,
in which case such graphic and image material shall be replaced in the
electronic Prospectus with a fair and accurate narrative description or
tabular representation of such material, as appropriate; and (C) it
shall be in or convertible into a paper format or an electronic format,
satisfactory to you, that will allow investors to store and have
continuously ready access to the Prospectus at any future time, without
charge to investors (other than any fee charged for subscription to the
system as a whole and for
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on-line time). The Company hereby confirms that it has included or will
include in the Prospectus filed pursuant to XXXXX or otherwise with the
Commission and in the Registration Statement at the effective date of
the Registration Statement an undertaking that, upon receipt of a
request by an investor or his or her representative during the period
when, in the opinion of counsel to the Underwriters, delivery of a
Prospectus by an Underwriter or dealer may be required by the Act, the
Company shall transmit or cause to be transmitted promptly, without
charge, a paper copy of the Prospectus.
(b) Each Selling Shareholder severally and not jointly
covenants and agrees with each of the Underwriters that:
(i) [Such Selling Shareholder will not, for a period of 180
days after the date hereof, directly or indirectly, without the prior
written consent of ING Barings LLC, offer for sale, sell, contract to
sell, grant any option to purchase or otherwise dispose (or announce
any offer, sale, grant of any option to purchase or other disposition)
of any Common Shares or any securities convertible into, or
exchangeable or exercisable for, Common Shares owned by such Selling
Shareholder on the date hereof, except pursuant to this Agreement.]
(ii) Such Selling Shareholder consents to the use of the
Prospectus and any amendment or supplement thereto by the Underwriters
and all dealers to whom the Shares may be sold, both in connection with
the offering or sale of the Shares and for such period of time
thereafter as the Prospectus are required by law to be delivered in
connection therewith.
(iii) Such Selling Shareholder will not at any time, directly
or indirectly, take any action intended, or which might reasonably be
expected, to cause or result in, or which will constitute,
stabilization of the price of the Common Shares to facilitate the sale
or resale of any of the Shares.
(iv) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the U.S. Tax Equity and
Fiscal Responsibility Act of 1982 with respect to transactions herein
contemplated, such Selling Shareholder will deliver to the
Representative prior to or at the Closing Date a properly completed and
executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department
regulations in lieu thereof).
5. Payment of Expenses.
(a) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will pay,
or reimburse ING Barings LLC if paid by the Underwriters, all costs, fees and
expenses incident to the performance of the obligations of the Company and the
Selling Shareholders under this Agreement, including but not limited to costs,
fees and expenses of or relating to (i) the preparation by the Company and the
Selling Shareholders, printing and filing of the Registration Statement and
exhibits to it, each preliminary prospectus, the Prospectus and any amendment or
supplement to the Registration Statement or the Prospectus (including, without
limitation, the fees and expenses of the Company's and the Selling Shareholders'
counsel, accountants and other advisors), (ii) the
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preparation and delivery of certificates representing the Shares, (iii) the
printing of this Agreement and Underwriter's Questionnaires, Underwriter's
Powers of Attorney, Blue Sky Memoranda, Master Agreements Among Underwriters and
Master Selling Agreements, and all other documents relating to the public
offering of the Shares (including those documents supplied to the Underwriters
in quantities as hereinabove stated) and furnishing (including costs of shipping
and mailing) such copies of the Registration Statement, the Prospectus and any
preliminary prospectus, and all exhibits, schedules, consents, certificates of
experts, amendments and supplements thereto, as may be requested for use in
connection with the offering and sale of the Shares by the Underwriters or by
dealers to whom Shares may be sold, (iv) the quotation of the Shares on the
Nasdaq National Market, (v) any filings required to be made with, and the review
by, the NASD and the fees, disbursements and other charges of the Underwriters'
counsel in connection therewith, (vi) the registration or qualification (or
obtaining exemptions from such registration or qualification) of the Shares for
offer and sale under the securities or Blue Sky laws of such jurisdictions
designated pursuant to Section 4(e), including the fees, disbursements and other
charges of the Underwriters' counsel in connection therewith, and the
preparation and printing of preliminary, supplemental and final Blue Sky
memoranda, (vii) the issuance, transfer and delivery of the Shares to the
Underwriters, including any issue, transfer, stamp or other taxes payable
thereon, (viii) the transfer agent or registrar for the Shares, (ix) all costs
and expenses incident to the preparation and undertaking of "road show"
preparations to be made to prospective investors, and (x) all other fees, costs
and expenses referred to in Part II of the Registration Statement.
(b) If this Agreement shall be terminated by the Company or
the Selling Shareholders or if for any reason the Company or the Selling
Shareholders shall fail to perform its or their obligations hereunder, if any
condition to the obligations of the Underwriters set forth in Section 8 hereof
is not satisfied, or if this Agreement shall be terminated by ING Barings LLC
pursuant to Section 8, Section 9 or Section 11, or if the sale to the
Underwriters of the Shares on the Closing Date is not consummated because of any
refusal, inability or failure on the part of the Company or the Selling
Shareholders to perform any agreement herein or to comply with any provision
hereof, the Company and the Selling Shareholders agree to reimburse ING Barings
LLC and the other Underwriters (or such Underwriters as have terminated this
Agreement with respect to themselves), jointly and severally, upon demand for
all out-of-pocket expenses that shall have been incurred by ING Barings LLC and
the Underwriters in connection with the proposed purchase and the offering and
sale of the Shares, including but not limited to fees and disbursements of
counsel, printing expenses, travel expenses, postage, facsimile and telephone
charges.
6. Indemnification.
(a) The Company and the Selling Shareholders jointly and
severally agree to indemnify and hold harmless each Underwriter, its directors,
officers, employees, and agents and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, against any and all losses, liabilities, claims, damages, actions
and expenses whatsoever, as incurred (including but not limited to attorneys'
fees and any and all expenses whatsoever incurred in investigating, preparing,
compromising or defending against any litigation, commenced or threatened, or
any claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other federal or state statutory law or
regulation, or at
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common law or otherwise, insofar as such losses, liabilities, claims, damages or
expenses (or actions in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Shares, as originally filed
or any amendment thereof, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; or (ii) upon any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission to state therein a material fact necessary in order to make statements
therein, in the light of the circumstances in which they were made, not
misleading; or (iii) in whole or in part upon any inaccuracy in the
representations and warranties of the Company and the Selling Shareholders
contained herein; or (iv) in whole or in part upon any failure of the Company or
the Selling Shareholders to perform its obligations hereunder or under law; or
(v) any act or failure to act or any alleged act or failure to act by an
Underwriter in connection with, or relating in any manner to, the Shares or the
offering contemplated hereby, and which is included as part of or referred to in
any loss, claim, damage, liability or action arising out of or based upon any
matter covered by clause (i), (ii), (iii) or (iv) above, provided that neither
the Company nor the Selling Shareholders will be liable under this clause (v) to
the extent that a court of competent jurisdiction shall have determined by a
final judgment that such loss, claim, damage, liability or action resulted
directly from any such acts or failures to act undertaken or omitted to be taken
by such Underwriter through its bad faith or willful misconduct; and provided,
however, that neither the Company nor the Selling Shareholders will be liable in
any such case covered by clauses (i), (ii), (iii), (iv) or (v) above to the
extent but only to the extent that any such loss, liability, claim, damage,
action or expense arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information relating to an
Underwriter furnished to the Company or the Selling Shareholders by or on behalf
of any Underwriter through you expressly for use therein. This indemnity
agreement will be in addition to any liability which the Company or the Selling
Shareholders may otherwise have, including under this Agreement.
(b) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the Company,
each of the officers of the Company and the Selling Shareholders who shall have
signed the Registration Statement, and each other person, if any, who controls
the Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, against any losses, liabilities, claims, damages and expenses
whatsoever as incurred (including but not limited to attorneys' fees and any and
all expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Shares, as originally filed
or any amendment thereof, or any related preliminary prospectus or the
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading, in each
case to the extent, but only to the extent, that any such loss, liability,
claim, damage or expense arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in
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conformity with written information relating to an Underwriter furnished to the
Company or the Selling Shareholders by or on behalf of any Underwriter through
you expressly for use therein; provided, however, that in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discounts and commissions applicable to the Shares purchased by
such Underwriter hereunder. This indemnity will be in addition to any liability
which any Underwriter may otherwise have, including under this Agreement. The
Company and the Selling Shareholders acknowledge that the statements set forth
in the first and second paragraphs under the caption "Underwriting" in the
Prospectus constitute the only information furnished in writing relating to an
Underwriter by or on behalf of any Underwriter expressly for use in the
Registration Statement relating to the Shares as originally filed or in any
amendment thereof, any related preliminary prospectus or the Prospectus or in
any amendment thereof or supplement thereto, as the case may be.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability or obligation which it may have under this Section 6 or otherwise (i)
unless the failure to notify shall result in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not in any event relieve
the indemnifying party from any obligations other than the indemnification
obligation provided in paragraph (a) or (b) above). In case any such action is
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified parties promptly after receiving the aforesaid notice from an
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified parties. Notwithstanding the foregoing, the indemnified party
or parties shall have the right to employ its or their own separate counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by one of the indemnifying parties in connection with the defense of
such action, (ii) the indemnifying parties shall not have employed counsel to
have charge of the defense of such action within a reasonable time after notice
of commencement of the action, or (iii) such indemnified party or parties shall
have reasonably concluded that a conflict may arise between the positions of the
indemnifying party or parties in conducting the defense of any such action or
that there may be one or more legal defenses available to it or them which are
different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying party or parties shall not
have the right to direct the defense of such action on behalf of the indemnified
party or parties), in any of which events such fees and expenses shall be borne
by the indemnifying parties, it being understood, however, that the indemnifying
party or parties shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (plus separate local
counsel, if retained by the indemnified party or parties) at any time for all
such indemnified parties. An indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent;
provided, however, that such consent was not unreasonably withheld.
Notwithstanding the foregoing, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of
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counsel as contemplated in this Section 6, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or
consent is for money damages only and includes (i) an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
Any losses, claims, damages, liabilities, expenses or actions
for which an indemnified party is entitled to indemnification or contribution
under this Section 6 or under Section 7 below shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages, liabilities or
expenses are incurred, but in all cases, no later than thirty (30) days of
invoice to the indemnifying party.
The indemnity and contribution agreements contained in this
Section 6 and in Section 7 below and the representation and warranties of the
Company and the Selling Shareholders 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 director, officer or employee of or
person controlling any Underwriter, the Company, its directors or officers or
any persons controlling the Company or the Selling Shareholders, (ii) acceptance
of any Shares and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to any Underwriter, or to the Company or the Selling
Shareholders, shall be entitled to the benefits of the indemnity, contribution
and reimbursement agreements contained in this Section 6 and Section 7 below.
The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof including, without limitation, the
provisions of this Section 6 and Section 7 below and are fully informed
regarding said provisions. They further acknowledge that the provisions of this
Section 6 and Section 7 below fairly allocate the risks in light of the ability
of the parties to investigate the Company and the Selling Shareholders and its
and their business in order to assure that adequate disclosure is made in the
Registration Statement, the preliminary prospectus and Prospectus as required by
the Act and the Exchange Act.
7. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 6 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company, the
Selling Shareholders and the Underwriters shall severally contribute to the
aggregate losses, claims, damages, liabilities and expenses of the nature
contemplated by such indemnification provision (including any investigation,
legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but after
deducting in the case of losses, claims, damages, liabilities and expenses
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suffered by the Company or the Selling Shareholders any contribution received by
the Company or the Selling Shareholders from persons, other than the
Underwriters, who may also be liable for contribution, including persons who
control the Company within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act, officers of the Company who signed the Registration
Statement and directors of the Company or the Selling Shareholders) as incurred
to which the Company, the Selling Shareholders and one or more of the
Underwriters may be subject, in such proportions as is appropriate to reflect
the relative benefits received by the Company, the Selling Shareholders and the
Underwriters from the offering of the Shares or, if such allocation is not
permitted by applicable law or indemnification is not available as a result of
the indemnifying party not having received notice as provided in Section 6
hereof, in such proportion as is appropriate to reflect not only the relative
benefits referred to above but also the relative fault of the Company or the
Selling Shareholders on the one hand and the Underwriters, severally, on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company or the
Selling Shareholders on the one hand and the Underwriters, severally, on the
other shall be deemed to be in the same proportion as the total proceeds from
the offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and the Selling Shareholders bears to the
underwriting discounts and commissions received by the Underwriters,
respectively. The relative fault of the Company or the Selling Shareholders on
the one hand and of the Underwriters, severally, on the other 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 or one or more
Selling Shareholders or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Selling Shareholders and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this Section 7, (i) in no
case shall any Underwriter be liable or responsible for any amount in excess of
the underwriting discounts and commissions applicable to the Shares purchased by
such Underwriter hereunder, and (ii) 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. Further notwithstanding the provisions of this Section 7 and
the preceding sentence, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. For purposes of this Section 7, each director, officer,
employee and agent of an Underwriter and each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company and the Selling
Shareholders, subject in each case to clauses (i) and (ii) of this Section 7.
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties,
notify each party or
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parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this Section 7 or
otherwise. No party shall be liable for contribution with respect to any action
or claim settled without its consent, provided that such consent was not
unreasonably withheld.
The Underwriters' obligations in this Section 7 to contribute
are several in proportion to their respective underwriting obligations and not
joint. The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
8. Conditions to the Obligations of the Underwriters. The
several obligations of the Underwriters to purchase and pay for the Firm Shares
and the Option Shares, as provided herein, shall be subject to the accuracy of
the representations and warranties on the part of the Company and the Selling
Shareholders contained herein as of the date hereof, the Closing Date and any
Additional Closing Date, to the absence from any certificates, opinions, written
statements or letters furnished to you or to Underwriters' counsel pursuant to
this Section 8 of any misstatement or omission, to the timely performance by the
Company and the Selling Shareholders of its and their covenants and other
obligations hereunder and to each of the following additional conditions:
(a) The Registration Statement shall have become effective not
later than, if pricing pursuant to Rule 430A, 5:30 P.M., New York time on the
date of this Agreement, and if pricing pursuant to a pricing amendment, 12:00
P.M., New York time on the date an amendment to the Registration Statement
containing the public offering price has been filed with the Commission, or at
such later time and date as shall have been consented to in writing by ING
Barings LLC; if the Company shall have elected to rely upon Rule 430A or Rule
434 of the Regulations, the Prospectus shall have been filed with the Commission
in a timely fashion in accordance with Section 4(a) hereof; and, at or prior to
the Closing Date no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereof shall have been issued and no
proceedings for such purpose shall have been initiated or threatened by the
Commission; no order suspending the qualification or registration of the Shares
under the securities or Blue Sky laws of any jurisdiction shall be in effect and
no proceeding for such purpose shall be pending before or threatened or
contemplated by the authorities of any such jurisdiction; any request for
additional information on the part of the staff of the Commission or any such
authorities shall have been complied with to the satisfaction of the staff of
the Commission or such authorities and to the satisfaction of counsel to the
Underwriters; after the date hereof no amendment or supplement to the
Registration Statement or the Prospectus shall have been filed unless a copy
thereof was first submitted to you and you did not reasonably object thereto;
and the NASD, upon review of the terms of the public offering of the Shares,
shall not have raised any objection to the fairness or reasonableness of the
underwriting terms and arrangements.
(b) The Company shall have furnished to you the opinion of
Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx, PC, counsel for the Company, dated
the Closing Date and the Additional Closing Date, if applicable, addressed to
the Underwriters and in form and substance satisfactory to Xxxxxxxx Chance
Xxxxxx & Xxxxx LLP, Underwriters' counsel, to the effect that:
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(i) Each of the Company and the Subsidiaries has been duly
organized and is validly existing and in good standing under the laws
of Delaware or Wisconsin, as the case may be, with full power and
authority to own, lease and operate its properties and engage in the
business in which it is engaged or proposes to engage as described in
the Registration Statement, the preliminary prospectus and the
Prospectus. Each of the Company and the Subsidiaries is duly registered
and qualified to do business as a foreign corporation in good standing
in each jurisdiction where the character or location of its properties
(owned, leased or licensed) or the nature or conduct of its business
requires such registration or qualification, except where the failure
to so register or qualify, individually or in the aggregate, could not
have a Material Adverse Effect on the Company and its subsidiaries
taken as a whole. To such counsel's knowledge, except as set forth in
the Registration Statement, the preliminary prospectus and the
Prospectus, the Company does not own or control, directly or
indirectly, any shares of stock or any other equity or long-term debt
securities of any corporation or have an equity interest in any firm,
partnership, association, joint venture or other entity, other than the
Subsidiaries.
(ii) All the outstanding shares of capital stock of the
Subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable, are owned by the Company, free and clear of any
Liens, shareholders' agreements, voting trusts or defects of title, and
were not issued in violation of statutory or, to such counsel's best
knowledge, other preemptive rights, co-sale rights, resale rights,
rights of first refusal, or similar rights.
(iii) The Company's authorized equity capitalization is as set
forth in the Registration Statement, the preliminary prospectus and the
Prospectus; the Common Stock, the Firm Shares, the Option Shares and
all others shares of capital stock of the Company conform to the
description thereof contained in the Registration Statement, the
preliminary prospectus and the Prospectus. The outstanding shares of
capital stock of the Company have been duly authorized and validly
issued and are fully paid and nonassessable. The Shares to be issued
and sold to the Underwriters pursuant to the Underwriting Agreement
have been duly authorized, and when issued and delivered to and paid
for by the Underwriters pursuant to the Underwriting Agreement, will be
validly issued and fully paid and nonassessable, and transferred to the
Underwriters free and clear of any Liens and will not have been issued
in violation of or subject to any statutory or, to such counsel's best
knowledge, other preemptive rights, resale rights, co-sale rights,
rights of first refusal, or similar rights. The certificates for the
Shares are in valid and sufficient form. The holders of outstanding
shares of capital stock of the Company are not entitled to statutory
or, to such counsel's best knowledge, other preemptive rights, co-sale
rights, rights of first refusal, resale rights or similar rights in
respect of the Shares. Except as described in the Registration
Statement, the preliminary prospectus and the Prospectus, to such
counsel's best knowledge, there are no authorized or outstanding
rights, warrants or options to acquire, or instruments convertible into
or exercisable or exchangeable for, any share of capital stock or other
equity interest or ownership interest in the Company or the
Subsidiaries or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any capital stock
or other equity interest or ownership interest in the Company or the
Subsidiaries or any such convertible or exercisable or exchangeable
securities or instruments or any such rights, warrants or options. The
description of the Company's stock option, stock bonus and
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other stock plans or arrangements, and the options or other rights
granted thereunder, set forth in the Registration Statement, the
preliminary prospectus and the Prospectus, accurately and fairly
presents the information required to be shown with respect to such
plans, arrangements, options and rights. No holder of securities of the
Company has any rights to the registration of securities of the Company
because of the filing of the Registration Statement or otherwise in
connection with the sale of the Shares contemplated by the Underwriting
Agreement.
(iv) To the best knowledge of such counsel, there is (A) no
action, suit, proceeding or investigation before or by any court,
arbitrator or governmental agency, body or official, domestic or
foreign, pending, threatened or contemplated as to which the Company or
the Subsidiaries will be a party or as to which the business, assets or
property of the Company or the Subsidiaries is or will be, subject, (B)
no statute, rule, regulation or order that has been enacted, adopted or
issued by any governmental agency, body or official, and (C) no
injunction, restraining order or order of any nature that has been
issued by a federal or state court or foreign court of competent
jurisdiction to which the Company or the Subsidiaries is or will be
subject or affecting the business, assets or property of the Company or
the Subsidiaries, in each case that is of a character required to be
disclosed in the Registration Statement, the preliminary prospectus or
the Prospectus which has not been properly disclosed therein or that
might, in the case of clauses (A), (B) and (C), individually or in the
aggregate, result in a Material Adverse Effect on the Company and its
subsidiaries taken as a whole, or adversely affect the ability of the
Company to perform its obligations under this Agreement or be otherwise
important in the context of the sale of the Shares. To such counsel's
best knowledge, there are no legal or administrative proceedings,
actions, suits, investigations pending or threatened, or statutes, or
franchises, Contracts, Permits or other documents concerning the
Company or the Subsidiaries, of a character that would be required to
be described in or filed as an exhibit to a registration statement on
Form S-3 under the Act that are not described in the Registration
Statement, the preliminary prospectus and the Prospectus or so filed as
required. The statements in the Registration Statement, the preliminary
prospectus and the Prospectus relating to pending litigation or actions
taken by the courts or taken or requested by regulatory bodies fairly
summarize, in all material respects, the matters referred to therein.
(v) The Registration Statement has become effective under the
Act; all filings required by Rule 424(b) of the Regulations have been
made in the manner and within the time period required by Rule 424(b).
To the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or threatened. The
Registration Statement, the preliminary prospectus and the Prospectus
and each supplement thereto comply as to form in all material respects
with the applicable requirements of the Act and the Regulations.
(vi) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company and is the legal, valid and
binding agreement of the Company. The Company has full power and
authority to enter into the Underwriting Agreement and to perform the
transactions contemplated thereby.
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(vii) The Company and the Subsidiaries have all requisite
corporate power and authority, and all Permits that are material to the
conduct of the business of the Company and the Subsidiaries as such
business is conducted or as is proposed to be conducted as described in
the Registration Statement, the preliminary prospectus or the
Prospectus (and there is no proceeding pending or, to the best
knowledge of such counsel, threatened, which may cause any such Permit
to be withdrawn, canceled, suspended or not renewed). The Company's and
the Subsidiaries' Contracts and Permits are legal, valid and binding
and in full force and effect. To the best knowledge of such counsel,
(a) the Company and the Subsidiaries are not in violation of, or in
default under, and have fulfilled and performed all their obligations
with respect to their Contracts and Permits, and (b) no event has
occurred which allows or would allow revocation or termination of any
such Contract or Permit or result in any material impairment of the
rights of the holder of any such Contract or Permit.
(viii) The Company and the Subsidiaries are not (A) in
violation of their respective certificates of incorporation, as
amended, or bylaws, as amended or (B) to the best knowledge of such
counsel, in breach of or default under (or an event has occurred that
with notice or the lapse of time or both would constitute such a
breach, violation or default) the performance or observance of any
Contract or Permit or in violation of any law, order, rule, regulation
or writ, injunction or decree of any court or governmental agency, body
or authority, except in the case of this clause (B) for such breaches,
defaults or violations that could not, individually or in the
aggregate, have a Material Adverse Effect on the Company and its
subsidiaries taken as a whole or adversely affect the ability of the
Company to perform its obligations under the Underwriting Agreement or
be otherwise important in the context of the sale of the Shares.
(ix) Neither the issuance, offer, sale or delivery of the
Shares, the execution, delivery and performance by the Company of the
Underwriting Agreement nor the compliance by the Company with all the
provisions thereof nor the consummation of the transactions
contemplated thereby, (A) conflicts with or will conflict with, or
constitutes or will constitute a breach or violation of or a default
(or an event that with notice or the lapse of time or both would
constitute such a breach, violation or default) under, any of the terms
or provisions of the certificate of incorporation or by-laws or other
organizational or constitutive documents of the Company or the
Subsidiaries, (B) conflicts with or will conflict with or constitutes
or will constitute a breach or violation of, or a default (or an event
that with notice or the lapse of time or both would constitute such a
breach, violation or default) or the loss of any material benefit
under, or the termination of, or will result in the creation or
imposition of any Lien upon any property or assets of the Company or
the Subsidiaries pursuant to, any Contract or Permit, nor (C) violates
or conflicts with or will violate or conflict with any law, statute,
rule or regulation applicable to the Company or the Subsidiaries or any
judgment, decree or order known to such counsel and applicable to the
Company or the Subsidiaries of any court or supervisory, regulatory,
administrative or governmental agency, body or authority, or arbitrator
having jurisdiction over the Company or the Subsidiaries or any of
their property or assets, the default under or the breach or violation
of which, in the case of clauses (B) and (C) above, individually or in
the aggregate, could have a Material Adverse Effect on the Company and
the Subsidiaries taken as a whole or adversely affect
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the ability of the Company to perform its obligations under the
Underwriting Agreement or be otherwise important in the context of the
sale of the Shares.
(x) To the best knowledge of such counsel, (A) the Company and
the Subsidiaries have conducted and are conducting their businesses in
compliance in all material respects with all applicable laws, rules or
regulations and all decisions, directives and orders to which the
Company and its subsidiaries is a party or by which, to such counsel's
knowledge, any of them or their property is bound or affected, the
failure to comply with, individually or in the aggregate, could have a
Material Adverse Effect on the Company and the Subsidiaries taken as a
whole or adversely affect the ability of the Company to perform its
obligations under the Underwriting Agreement or be otherwise important
in the context of the sale of the Shares, and (B) are not subject to
any directive or order from any agency, body, authority, court or
arbitrator or competent jurisdiction to make any material change in the
method of conducting their businesses.
(xi) The descriptions in the Registration Statement, the
preliminary prospectus and the Prospectus which purport to summarize
the provisions of statutes, regulations, Contracts and other documents
are accurate summaries in all material respects and such descriptions
fully and fairly present the information shown. To the best knowledge
of such counsel, there is no law, statute, regulation, Contract or
other document applicable to the Company or the Subsidiaries of a
character required to be described in the Registration Statement, the
preliminary prospectus or the Prospectus or required to be filed as an
exhibit to the Registration Statement which is not described or filed
as required. The descriptions in the Registration Statement, the
preliminary prospectus and the Prospectus that concern matters of law
or legal conclusions that have been prepared or reviewed by such
counsel are accurate and fairly summarize the matters therein
described.
(xii) Except as otherwise set forth in the Registration
Statement, the preliminary prospectus and the Prospectus, the Company
and the Subsidiaries own or possess adequate licenses or other rights
to use the Intellectual Property necessary to the conduct of their
business as currently conducted and as proposed to be conducted as
described in the Registration Statement, the preliminary prospectus and
the Prospectus. Such counsel is not aware of any claim to the contrary
with respect to any Intellectual Property which could, individually or
in the aggregate, have a Material Adverse Effect on the Company and its
subsidiaries taken as a whole.
(xiii) To the best of such counsel's knowledge, the Company
and the Subsidiaries have filed on a timely basis with the appropriate
taxing authorities (or have received an extension for filing with
respect to) all necessary federal, state and foreign income and
franchise tax returns, reports and other information required to be
filed by it. Each such tax return, report or other information was,
when filed, accurate and complete. Except as described in the
Registration Statement, the preliminary prospectus and the Prospectus,
each of the Company and the Subsidiaries has duly paid, or has made
adequate charges, accruals and reserves in the financial statements
for, all such taxes required to be paid by it and any other assessment,
fine or penalty levied against it, for all periods as to which the tax
liability of the Company or the Subsidiaries has not been
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finally determined. No tax deficiency has been, or such to such
counsel's best knowledge, may be asserted or contemplated against the
Company or the Subsidiaries.
(xiv) To the best of such counsel's knowledge, the Company and
the Subsidiaries (A) are in compliance with all applicable
Environmental Laws, (B) have received all Permits required of them
under applicable Environmental Laws to conduct their business as
currently conducted, and (C) are in compliance with all terms and
conditions of any such Permit, except where such noncompliance with
Environmental Laws, or the failure to receive required Permits, could
not, individually or in the aggregate, have a Material Adverse Effect
on the Company and its subsidiaries taken as a whole. To the best of
such counsel's knowledge, no action, proceeding, revocation proceeding,
writ, injunction or claim is pending or threatened relating to the
Environmental Laws or to the Company's or the Subsidiaries' activities
involving Hazardous Materials. To the best of such counsel's knowledge,
neither the Company nor any of the Subsidiaries has engaged in the
generation, use, manufacture, transportation or storage of any
Hazardous Materials on any of the Company's or any of the Subsidiaries'
properties or former properties, except where such use, manufacture,
transportation or storage is in compliance with Environmental Laws, or
to the extent such activity would not, individually or in the
aggregate, have a Material Adverse Effect on the Company and its
subsidiaries taken as a whole. To the best of such counsel's knowledge,
no Hazardous Materials have been treated or disposed of on any of the
Company's or any of the Subsidiaries' properties or on properties
formerly owned or leased by the Company or the Subsidiaries during the
time of such ownership or lease, except in compliance with
Environmental Laws, or those that could not, individually or in the
aggregate, have a Material Adverse Effect on the Company and its
subsidiaries taken as a whole.
(xv) To the best of such counsel's knowledge, no payments or
inducements were made or given, directly or indirectly, to any federal
or local official or candidate for any federal or state office in the
United States or foreign office by the Company or by any Subsidiaries,
by any of their officers, directors, employees or agents or by any
other person in connection with any opportunity, Contract, Permit,
certificate, consent, order, approval, waiver or other authorization
relating to the business of the Company or the Subsidiaries, except for
such payments or inducements as were lawful under applicable written
laws, rules and regulations. Neither the Company nor any of the
Subsidiaries, nor any director, officer, agent, employee or other
person associated with or acting on behalf of the Company or the
Subsidiaries, (A) has used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; (B) made any direct or indirect unlawful payment to
any government official or employee from corporate funds; (C) violated
or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (D) made any bribe, unlawful rebate, payoff, influence
payment, kickback or other unlawful payment in connection with the
business of the Company or the Subsidiaries.
(xvi) To the best of such counsel's knowledge, neither of the
Company nor any of the Subsidiaries or any of its or their officers,
directors or affiliates (as defined in Regulation D) has taken,
directly or indirectly, any action designed to cause or to result in or
that has constituted, or might reasonably be expected to cause or
result in or constitute,
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under the Exchange Act, or otherwise, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or
resale of the Securities.
(xvii) The Company is not now, and as a result of the offer
and sale of the Shares in the manner contemplated in the Underwriting
Agreement, the Registration Statement, the preliminary prospectus and
the Prospectus and the application of the net proceeds of such sale as
described in the Registration Statement, the preliminary prospectus and
the Prospectus, will not be, an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an
"investment company" within the meaning of the Investment Company Act,
without taking account of any exemption arising out of the number or
type of holders of the Company's securities.
(xviii) No consent, approval, authorization, filing,
qualification, Permit or order of any court or supervisory, regulatory,
administrative or governmental agency, body or authority, arbitrator or
others (including securityholders) is required for the Company's
execution, delivery and performance of the Underwriting Agreement, the
issuance, sale or delivery of the Shares thereunder or the consummation
of any other of the transactions contemplated in the Underwriting
Agreement or the fulfillment of the terms thereof, except such as have
been obtained under the Act and the Exchange Act and such as may be
required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Shares by the Underwriters and
such other approvals (specified in such opinion) as have been obtained
and which are in full force and effect.
(xix) The Shares to be sold under the Underwriting Agreement
to the Underwriters are designated for inclusion on the National
Association of Securities Dealers Automated Quotation National Market
System, subject only to official notice of issuance.
(xx) Any securities of the Company issued or sold within the
period of one year prior to the date of the Underwriting Agreement were
issued and sold in compliance with the registration requirements of the
Act and the Regulations. To the best of such counsel's knowledge,
neither the Company, the Subsidiaries nor any of its or their
affiliates (as defined in Regulation D), nor any person acting on its
or their behalf has, directly or indirectly, made offers or sales of
any security or solicited offers to buy, or otherwise negotiated in
respect of, any "security", as defined in the Act, under circumstances
that would require the registration of such securities under the Act.
(xxi) Except as otherwise set forth in the Registration
Statement, the preliminary prospectus and the Prospectus, there are no
holders of securities of the Company which by reason of the
consummation of the transactions contemplated by the Underwriting
Agreement have the right to request or demand that the Company register
any of its securities under the Act.
In addition, such opinion shall also contain a statement that such
counsel has participated in conferences with officers and representatives of the
Company, representatives of the independent public accountants for the Company
and the Underwriters at which the contents of the Prospectus and related matters
were discussed and no facts have come to the attention of such counsel which
would lead such counsel to believe that either the Registration Statement at the
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time it became effective (including all information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule 430A, Rule
462 or Rule 434, if applicable), or any amendment thereof made prior to the
Closing Date as of the date of such amendment, contained an untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus as of its date (or any amendment thereof or supplement thereto made
prior to the Closing Date as of the date of such amendment or supplement) and as
of the Closing Date contained or contains an untrue statement of a material fact
or omitted or omits to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (it being understood that such counsel need
express no belief or opinion with respect to the financial statements and
schedules and other financial data included therein).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the States of
New York and Delaware, or the United States, to the extent they deem proper and
specified in such opinion, upon the opinion of other counsel of good standing
whom they believe to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and certificates or other
written statements of officers of departments of various jurisdictions having
custody of documents respecting the corporate existence or good standing of the
Company and the Subsidiaries, provided that copies of any such statements or
certificates shall be delivered to Underwriters' counsel. The opinion of such
counsel for the Company shall state that they are so relying, that they have no
knowledge of any material misstatement or inaccuracy in any such opinion or
certificate, that the opinion of any such other counsel is in form satisfactory
to such counsel and, in their opinion, you and they are justified in relying
thereon.
(c) The Company shall have furnished to the Underwriters the
opinion of [ ], counsel for [the Agent and] the Selling Shareholders,
dated the Closing Date (and the Additional Closing Date, if applicable), as to
the matters set forth in Exhibit C hereto, and in form and substance
satisfactory to Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, counsel to the Underwriters.
(d) The Company shall have furnished to the Underwriters the
opinion of [ ], Intellectual Property counsel for the Company, dated the
Closing Date (and the Additional Closing Date, if applicable), in form and
substance satisfactory to Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, counsel to the
Underwriters.
(e) All corporate proceedings and other legal matters in
connection with this Agreement, the form of Registration Statement, preliminary
prospectus or Prospectus, and the registration, authorization, issue, sale and
delivery of the Shares as herein contemplated shall be satisfactory in form and
substance to you and to Underwriters' counsel. The Underwriters shall have
received from Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, Underwriters' counsel, a
favorable opinion, dated the Closing Date (and the Additional Closing Date, if
applicable), with respect to the issuance and sale of the Shares, the
Registration Statement, the Prospectus and other related matters as you may
reasonably require, and the Company, the Selling Shareholders and the
Subsidiaries shall have furnished to Underwriters' counsel such documents as
they request for the purpose of enabling them to pass upon the matters referred
to in this Section.
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(f) At the Closing Date (and the Additional Closing Date, if
applicable) you shall have received a certificate of the Chief Executive Officer
and Chief Financial Officer of the Company, dated the Closing Date (and the
Additional Closing Date, if applicable), to the effect that (i) the condition
set forth in subsection (a) of this Section 8 has been satisfied, (ii) as of the
date hereof and as of the Closing Date (and the Additional Closing Date, if
applicable) all the representations and warranties of the Company set forth in
this Agreement are accurate with the same force and effect as if made on each of
such dates, (iii) as of the Closing Date (and the Additional Closing Date, if
applicable) the agreements and obligations of the Company to be performed
hereunder on or prior thereto have been duly performed, (iv) when the
Registration Statement became effective and at all times subsequent thereto up
to the delivery of such certificate, the Registration Statement and the
Prospectus, and any amendments or supplements thereto, contained the information
required to be included therein by the Act and the applicable rules and
regulations of the Commission thereunder, and conformed to the requirements of
the Act and the applicable rules and regulations of the Commission thereunder;
the Registration Statement and the Prospectus, and any amendments or supplements
thereto, did not and does not include any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; and since the effective date of the
Registration Statement, there has occurred no event required to be set forth in
an amended or supplemented Prospectus which has not been so set forth; and (v)
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, the Company and the Subsidiaries have
not sustained any material loss or interference with their respective business
or properties from fire, flood, hurricane, accident or other calamity, whether
or not covered by insurance, or from any labor dispute or any legal or
governmental proceeding, and there has not been any material adverse change, or
any development involving a prospective material adverse change, in the
business, management, properties, operations, prospects, condition (financial or
otherwise), or results of operations of the Company and the Subsidiaries taken
as a whole, or any transaction that is material to the Company and its
subsidiaries taken as a whole, except transactions entered into in the ordinary
course of business, or any obligation, direct or contingent, that is material to
the Company and its subsidiaries, taken as a whole, incurred by the Company or
its subsidiaries, except obligations incurred in the ordinary course of
business, or any change in the capital stock or outstanding indebtedness of the
Company or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company or any of its
subsidiaries. [NOTE: A PARALLEL PROVISION IN RE A SIMILAR CERTIFICATE FROM THE
SELLING SHAREHOLDERS SHALL BE ADDED IF NECESSARY.]
(g) At the time this Agreement is executed and at the Closing
Date (and the Additional Closing Date, if applicable), Delloite & Touche LLP
shall have furnished to you a letter or letters, dated respectively as of the
time this Agreement is executed and as of the Closing Date (and the Additional
Closing Date, if applicable), addressed to you and based upon the procedures
described in such letter, but carried out to a date not more than five (5) days
prior to the Closing Date or the Additional Closing Date, as the case may be,
and otherwise in form and substance satisfactory to you, confirming that they
are independent public accountants with respect to the Company within the
meaning of the Act and Regulation S-X, stating that the answer to item 10 of the
Registration Statement is correct as it relates to them and that:
(i) in their opinion the audited consolidated financial
statements, the audited consolidated financial statement schedules and
the audited financial statements of the
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Company included in the Registration Statement and the Prospectus and
reported on by them comply in form in all material respects with the
applicable accounting requirements of the Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and the
Subsidiaries; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with respect
to the comments set forth in such letter; a reading of the minutes of
the meetings of the Shareholders and the board of directors of the
Company and the Subsidiaries; and inquiries of certain officials of the
Company and the Subsidiaries who have responsibility for financial and
accounting matters of the Company and the Subsidiaries as to
transactions and events subsequent to September 30, 1999, nothing came
to their attention which caused them to believe that:
(1) any unaudited financial statements included in the
Registration Statement and the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Act and with the published rules and
regulations of the Commission with respect to registration
statements on Form S-3; and said unaudited financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included in the Registration Statement and the Prospectus;
(2) with respect to the period subsequent to September
30, 1999 there were any changes, at a specified date not more
than five days prior to the date of the letter, in the
long-term debt of the Company and its Subsidiaries or capital
stock of the Company or decreases in the Shareholders' equity
of the Company, as compared with the amounts shown on the
September 30, 1999 consolidated balance sheet included in the
Registration Statement and the Prospectus or the period from
, 19 to such specified date there were any
decreases, as compared with in [net revenues or income
before income taxes or in total or per share amounts of net
income of the Company and its subsidiaries], except in all
instances for changes or decreases set forth in such letter,
in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by ING Barings
LLC;
(3) the information included in the Registration
Statement and Prospectus in response to Regulation S-K, Item
301 (Selected Financial Data), Item 302 (Supplementary
Financial Information), Item 402 (Executive Compensation) and
Item 503(d) (Ratio of Earnings to Fixed Charges) is not in
conformity with the applicable disclosure requirements of
Regulation S-K;
(4) for the period from [date], to [date], there were, as
compared to the corresponding period in the preceding year,
any decrease in consolidated net revenues or increase in
excess of [ ]in the total amount of loss from continuing
operations and total net loss in excess of [ ], except
in all
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instances for changes, increases, or decreases that the
Registration Statement and the Prospectus discloses have
occurred or may occur.
(iii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
Interim financial information as described in Statement of Auditing
Standards No. 71 ("SAS 71"), Interim Financial Information, on the
unaudited financial statements included in the Registration Statement
and the Prospectus and are providing their report as described in SAS
71 on such financial statements;
(iv) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and the Subsidiaries) set
forth in the Registration Statement and the Prospectus, which have been
specified by you prior to the date of such letter, agrees with the
accounting records of the Company and its subsidiaries, excluding any
questions of legal interpretation.
(v) they have performed an SSAE 8 examination of the
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" contained in the Registration Statement and the
Prospectus and have determined that:
(1) the presentation includes, in all material respects,
the required elements of the applicable rules and regulations
under the Act;
(2) the historical financial amounts have been accurately
derived in all material respects from the Company's audited
financial statements; and
(3) the underlying information, determinations, estimates
and assumptions of the Company provide a reasonable basis for
the disclosures contained therein.
In addition, ING Barings LLC shall have received from Delloite & Touche
LLP a letter addressed to the Company and made available to you for the use of
the Underwriters stating that their review of the Company's system of internal
accounting controls, to the extent they deemed necessary in establishing the
scope of their examination of the Company's consolidated financial statements as
of September 30, 1999, did not disclose any weaknesses in internal controls that
they considered to be substantial or material weaknesses.
In the event that the letters to be delivered referred to above set
forth note any changes, decreases or increases in the financial information
included in the Registration Statement and the Prospectus, it shall be a further
condition to the obligations of the Underwriters hereunder that ING Barings LLC
shall have determined in its sole judgment, that such changes, decreases or
increases as are set forth in such letters do not reflect a material adverse
change in the Shareholders' equity or long-term debt of the Company as compared
with the amounts shown in the latest balance sheet of the Company included in
the Prospectus, or a material adverse change in total net revenues or net income
of the Company, in each case as compared with the corresponding period of the
prior year.
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(h) Subsequent to the date this Agreement is executed or, if
earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto), there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (f) of this Section
8 or (ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or other), earnings, business or properties
of the Company and the Subsidiaries, whether or not arising in the ordinary
course of business, the effect of which, in any case referred to in clause (i)
or (ii) above, is, in ING Barings LLC's sole judgment, material and adverse and
that makes it impracticable or inadvisable to proceed with the offering or
delivery of the Shares as contemplated by the Registration Statement (exclusive
of any amendment thereof) and the Prospectus (exclusive of any supplement
thereto).
(i) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) there shall not have
been a material adverse change, or any development involving a prospective
material adverse change, in the general affairs, business, prospects,
properties, management, key personnel, condition (financial or other) or results
of operations of the Company and the Subsidiaries, whether or not arising from
transactions in the ordinary course of business, in each case other than as set
forth in the Registration Statement and the Prospectus (or, in the case of a
prospective change, other than as contemplated by the Registration Statement and
the Prospectus), and (ii) the Company shall not have sustained any material loss
or interference with its business or properties from fire, explosion, flood,
hurricane or other casualty or calamity, whether or not covered by insurance, or
from any labor dispute or any court or legislative or other governmental action,
order or decree, which is not set forth in the Registration Statement and the
Prospectus, if in your judgment any such development makes it impracticable or
inadvisable to consummate the sale and delivery of the Shares at the public
offering price.
(j) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall have been no
litigation or other proceeding instituted against the Company or any of its
officers or directors in their capacities as such, before or by any federal,
state, or local court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, in which litigation or proceeding
an unfavorable ruling, decision or finding could have a Material Adverse Effect
on the Company and its subsidiaries taken as a whole.
(k) At the time of execution of this Agreement, the Company
shall have furnished to you a letter addressed to you from each officer and
director of the Company and each shareholder or other person heretofore
designated by you, in which each such person agrees not to (1) offer for sale,
contract to sell, sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected to, result in
the disposition by any person at any time in the future of) any shares of Common
Stock or securities convertible into, exercisable or exchangeable for, or
represent the right to receive, Common Stock or sell or grant options, rights or
warrants with respect to any shares of Common Stock or register for sale any
outstanding shares of Common Stock; or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of such shares of Common Stock or
securities, whether any such transaction described in clause (1) or (2) above is
to be settled by delivery of Common Stock or other securities, in cash or
otherwise for a period of 180 days following the time of execution of this
Agreement without
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your prior written consent, other than shares of Common Stock disposed of as
gifts or transfers to immediate family members or trusts or partnerships, the
beneficiaries and sole partners of which are immediate family members, provided
that the donee or transferee agrees in writing to be bound in the same manner.
(l) The Shares shall be qualified for sale in such
jurisdictions as you shall have requested, each such qualification shall be in
effect and not subject to any stop order or other proceeding on the Closing Date
and the Additional Closing Date, if applicable.
(m) The Shares shall have been authorized for quotation on the
Nasdaq National Market, subject to official notice of issuance.
(n) You shall not have advised the Company or the Selling
Shareholders that the Registration Statement, the preliminary prospectus or the
Prospectus, or any amendment or any supplement thereto, contains an untrue
statement of fact which, in your judgment, is material, or omits to state a fact
which, in your judgment, is material and is required to be stated therein or
necessary to make the statements therein not misleading and the Company and the
Selling Shareholders shall not have cured such untrue statement of fact or
omission of such statement of fact.
(o) The Company and the Selling Shareholders shall have
furnished to you such certificates, in addition to those specifically mentioned
herein, as you may have requested as to the accuracy and completeness at the
Closing Date and the Additional Closing Date, if applicable, of any statement in
the Registration Statement, the preliminary prospectus or the Prospectus, as to
the accuracy at the Closing Date and the Additional Closing Date, if applicable,
of the representations, warranties and covenants of the Company and the Selling
Shareholders herein, as to the performance by the Company and the Selling
Shareholders of its and their obligations hereunder, or as to the fulfillment of
the conditions concurrent and precedent to your obligations hereunder.
(p) Prior to the Closing Date and the Additional Closing Date,
if applicable, the Company and the Selling Shareholders shall have furnished to
the Underwriters such further information and documents as you may reasonably
request.
(q) There shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Act.
(r) The Lock-up Agreements shall have been duly and validly
executed and delivered to the Underwriters.
If any of the conditions specified in this Section shall not
have been fulfilled in all respects when and as required to be satisfied, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be satisfactory in form and substance to you and counsel for
the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be terminated at, or at any time on or prior to, the Closing Date
(and Additional
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Closing Date, if applicable) by ING Barings LLC. Notice of such termination
shall be given to the Company and the Selling Shareholders promptly in writing
or by telephone confirmed in writing.
9. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or
their obligations to purchase Firm Shares or Option Shares hereunder, and if the
Firm Shares or Option Shares with respect to which such default relates do not
(after giving effect to arrangements, if any, made by you pursuant to subsection
(b) below) exceed in the aggregate 10% of the number of Firm Shares or Option
Shares, the Shares to which the default relates shall be purchased by the
non-defaulting Underwriters in proportion to the respective proportions which
the numbers of Firm Shares set forth opposite their respective names in Schedule
II hereto bear to the aggregate number of Firm Shares set forth opposite the
names of the non-defaulting Underwriters.
(b) In the event that such default relates to more than 10% of
the Firm Shares or Option Shares, as the case may be, you may in your discretion
arrange for yourself or for another party or parties (including any
non-defaulting Underwriter or Underwriters who so agree) to purchase such Firm
Shares or Option Shares, as the case may be, to which such default relates on
the terms contained herein. In the event that within 5 calendar days after such
a default you do not arrange for the purchase of the Firm Shares or Option
Shares, as the case may be, to which such default relates as provided in this
Section 9, this Agreement or, in the case of a default with respect to the
Option Shares, the obligations of the Underwriters to purchase and of the
Company to sell the Option Shares shall thereupon terminate, without liability
on the part of the Company with respect thereto (except in each case as provided
in Section 5, 6(a) and 7 hereof) or the Underwriters, but nothing in this
Agreement shall relieve a defaulting Underwriter or Underwriters of its or their
liability, if any, to the other Underwriters and the Company for damages
occasioned by its or their default hereunder.
(c) In the event that the Firm Shares or Option Shares to
which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
you or the Company shall have the right to postpone the Closing Date or
Additional Closing Date, as the case may be, for a period not exceeding five
business days, in order to effect whatever changes may thereby be made necessary
in the Registration Statement or the Prospectus or in any other documents and
arrangements, and the Company agrees to file promptly any amendment or
supplement to the Registration Statement or the Prospectus which, in the opinion
of Underwriters' counsel, may thereby be made necessary or advisable. The term
"Underwriter" as used in this Agreement shall include any party substituted
under this Section 9 with like effect as if it had originally been a party to
this Agreement with respect to such Firm Shares and Option Shares.
10. Survival of Representations and Agreements. All
representations and warranties, covenants and agreements of the Underwriters,
the Company and the Selling Shareholders contained in this Agreement, including
the agreements contained in Section 4 and Section 5, the indemnity agreements
contained in Section 6 and the contribution agreements contained in Section 7,
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
thereof or by or on behalf of the Company, any of its officers and directors or
any controlling person thereof and
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the Selling Shareholders, and shall survive delivery of and payment for the
Shares to and by the Underwriters. The representations contained in Section 1
and the agreements contained in Sections 5, 6, 7 and 11(d) hereof also shall
survive the termination of this Agreement, including termination pursuant to
Section 9 or 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective, upon the later of
when (i) you and the Company shall have received notification of the
effectiveness of the Registration Statement or (ii) the execution of this
Agreement. If either the initial public offering price or the purchase price per
Share has not been agreed upon prior to 5:00 P.M., New York time, on the fifth
full business day after the Registration Statement shall have become effective,
this Agreement shall thereupon terminate without liability to the Company, the
Selling Shareholders or the Underwriters except as herein expressly provided.
Until this Agreement becomes effective as aforesaid, it may be terminated by the
Company by notifying you or by you notifying the Company. Notwithstanding the
foregoing, the provisions of this Section 11 and of Sections 1, 5, 6 and 7
hereof shall at all times be in full force and effect.
(b) ING Barings LLC shall have the right to terminate this
Agreement at any time on or prior to the Closing Date, or the obligations of the
Underwriters to purchase the Option Shares at any time on or prior to the
Additional Closing Date, as the case may be (but in any event prior to delivery
of and payment for the Shares), if (A) any domestic or international event or
act or occurrence has materially disrupted, or in your opinion will in the
immediate future materially disrupt, the market for the Company's securities or
securities in general; or (B) trading on the Nasdaq National Market shall have
been suspended, or limited, minimum or maximum prices for trading shall have
been fixed, or maximum ranges for prices for securities shall have been
required, on the Nasdaq National Market or by order of the Commission or any
other governmental authority having jurisdiction; or (C) if a banking moratorium
has been declared by a state or federal authority or if any new restriction
materially adversely affecting the distribution of the Firm Shares or the Option
Shares, as the case may be, shall have become effective; or (D)(i) there shall
have occurred any outbreak or escalation of hostilities or there is an outbreak
or escalation of national or international hostilities or there is a declaration
by the United States of a national emergency or war or (ii) if there has been
any crisis or calamity or any change or development in United States' or
international political, financial or economic conditions, if the effect of any
such event in (D)(i) or (D)(ii), in the sole judgment of ING Barings LLC makes
it impracticable or inadvisable to proceed with the offering, sale and delivery
of the Firm Shares or the Option Shares, as the case may be, on the terms
contemplated by the Prospectus (exclusive of any supplement thereto) or to
enforce contracts for the sale of securities; or (E) in the sole judgment of ING
Barings LLC there shall have occurred any Material Adverse Effect on the Company
and its subsidiaries taken as a whole or (F) the Company shall have sustained a
loss by strike, fire, flood, earthquake, accident or other calamity of such
character as in the sole judgment of ING Barings LLC may interfere materially
with the conduct of the business and operations of the Company regardless of
whether or not such loss shall have been insured. Any termination pursuant to
this Section shall be without liability on the part of (a) the Company and the
Selling Shareholders to any Underwriter, except that the Company and the Selling
Shareholders shall be obligated to reimburse the expenses of ING Barings LLC and
the underwriters pursuant to Sections 5, 6 and 7 hereof, (b) any Underwriter to
the Company and the
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Selling Shareholders or (c) of any party hereto to any other party except that
the provisions of Sections 5, 6 and 7 shall at all times be effective and shall
survive such termination.
(c) Any notice of termination pursuant to this Section 11
shall be by telephone or facsimile and confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any of
the provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 11(a) hereof or (ii) Section 9(b) or 11(b) hereof), or if
the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company or the Selling Shareholders to perform any agreement herein or comply
with any provision hereof, the Company or the Selling Shareholders will, subject
to demand by you, reimburse the Underwriters for all out-of-pocket expenses
(including the fees and expenses of their counsel), incurred by the Underwriters
in connection herewith.
12. Notices. Any notice or notification in any form to be
given hereunder shall be in writing and shall be delivered in person or sent by
telephone or facsimile transmission (but in the case of a notification by
telephone, with subsequent confirmation by letter or facsimile transmission).
Any notice or notification to you shall be addressed to:
ING Barings LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
with a copy to:
Xxxxxxxx Chance Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxxxx
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Any notice or notification to the Company shall be addressed
to the Company at:
Robotic Vision Systems, Inc.
0 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxx X. Xxxxx
and any notice or notification to the Selling Shareholders
shall be addressed to the Agent at:
[Agent]
[address]
[city, state, zip]
Attention: [name]
in either case, with a copy to:
Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
Any notice or notification shall (subject to confirmation when
required) take effect at the time of receipt.
13. Parties. This Agreement shall insure solely to the benefit
of, and shall be binding upon, the Underwriters, the Company and the Selling
Shareholders and the controlling persons, directors, officers, employees and
agents referred to in Section 6 and 7, and their respective successors and
assigns, and no other person shall have or be construed to have any legal or
equitable right, remedy or claim under or in respect of or by virtue of this
Agreement or any provision herein contained. The term "successors and assigns"
shall not include a purchaser, in its capacity as such, of Shares from any of
the Underwriters. Notwithstanding the foregoing, this Agreement and the terms
and provisions hereof are, unless otherwise specified herein, for the sole
benefit of only those persons, except that (a) the representations, warranties,
indemnities and agreements of the Company and the Selling Shareholder contained
in this Agreement shall also be deemed to be for the benefit of each Purchaser
Indemnified Party and (b) the indemnity agreement of the Underwriters contained
in Section 6 hereof shall be deemed to be for the benefit of each Company
Indemnified Party.
14. Consent to Jurisdiction. Any legal suit, action or
proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby ("Related Proceedings") may be instituted in the federal
courts of the United States of America located in the City and County of New
York or the courts of the State of New York in each case located in the City and
County of New York (collectively, the "Specified Courts"), and each party
irrevocably submits to the exclusive jurisdiction (except for proceedings
instituted in regard to the enforcement of a judgment of any such court (a
"Related Judgment"), as to which such jurisdiction is non-exclusive) of such
courts in any such suit, action or proceeding. Service of any process, summons,
notice or document by mail to such party's address set forth above shall be
effective
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service of process for any suit, action or other proceeding brought in any such
court. The parties irrevocably and unconditionally waive any objection to the
laying of venue of any suit, action or other proceeding in the Specified Courts
and irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such suit, action or other proceeding brought in any such
court has been brought in an inconvenient forum. Each party not located in the
United States irrevocably appoints CT Corporation System, which currently
maintains an office at 000 Xxxxxx Xxxxxx, 13th Floor, New York, New York 10011,
United States of America, as its agent to receive service of process or other
legal summons for purposes of any such suit, action or proceeding that may be
instituted in any state or federal court in the City and County of New York.
With respect to any Related Proceeding, each party irrevocably
waives, to the fullest extent permitted by applicable law, all immunity (whether
on the basis of sovereignty or otherwise) from jurisdiction, service of process,
attachment (both before and after judgment) and execution to which it might
otherwise be entitled in the Specified Courts or any other court of competent
jurisdiction, and will not raise or claim or cause to be pleaded any such
immunity at or in respect of any such Related Proceeding or Related Judgment,
including, without limitation, any immunity pursuant to the United States
Foreign Sovereign Immunities Act of 1976, as amended.
15. Miscellaneous. This Agreement shall be governed by and
construed in accordance with the internal 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 executed in one or more counterparts, and if executed in
more than one counterpart, the executed counterparts shall together constitute a
single instrument. The descriptive headings in this Agreement are for
convenience of reference only and shall not define or limit the provisions
hereof.
Time shall be of the essence of this Agreement.
This Agreement constitutes the entire agreement of the parties
to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof.
If any provision or portion of any provision of the Agreement,
or the application of any such provision or any portion thereof to any party or
circumstances, shall be held invalid or unenforceable, the remaining portion of
such provision and the remaining portion of such provision and the remaining
provisions of this agreement, and the application of such provision or portion
of such provision as is held invalid or unenforceable to any parties or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby and such remaining portion of such provision and
the remaining provisions of this Agreement shall continue to be valid and in
full force and effect.
If the foregoing is in accordance with the Underwriters'
understanding of our agreement, kindly sign and return to us one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company, the Selling Shareholders and the Underwriters in accordance with its
terms.
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This Agreement may be signed in counterparts which together
shall constitute one and the same instrument.
Very truly yours,
By:
------------------------------------
Name:
Title:
The foregoing Underwriting Agreement is The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the hereby confirmed and accepted as of the
date first above written. date first above written.
ING Barings LLC [Agent]
By: By:
------------------------------------ ------------------------------------
Name: Name:
Title: Title:
For itself and the other several For itself and the other several Selling
Underwriters named in Schedule II to the Shareholders named in Schedule I to the
foregoing Underwriting Agreement. foregoing Underwriting Agreement.
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SCHEDULE I
[LIST OF SELLING SHAREHOLDERS]
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SCHEDULE II
Participating Underwriters
NUMBER OF FIRM
SHARES TO BE
UNDERWRITERS PURCHASED
------------ --------------
ING Barings LLC.....................................
Prudential Securities Incorporated..................
XxXxxxxx Investments, Inc...........................
---------
Total............................................... =========
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SCHEDULE III
NAME OF SUBSIDIARY JURISDICTION OF INCORPORATION
------------------ -----------------------------
Vanguard Automation Inc..................... Delaware
CiMatrix LLC................................ Delaware
Acuity Imaging LLC.......................... Delaware
Northeast Robotics LLC...................... Delaware
Systemation Engineered Products, Inc........ Wisconsin
52
EXHIBIT A
MATTERS TO BE COVERED IN THE OPINION OF
INTELLECTUAL PROPERTY COUNSEL
Such counsel are familiar with the technology used by the
Company in its business and the manner of its use thereof and have read the
Registration Statement, the preliminary prospectus and the Prospectus, including
particularly the portions of the Registration Statement, the preliminary
prospectus and the Prospectus referring to patents, trade secrets, trademarks,
service marks or other proprietary information or materials and:
(i) The Company is listed in the records of the United States
Patent and Trademark Office as the holder of record of the patents listed on a
schedule to such opinion (the "Patents") and each of the applications listed on
a schedule to such opinion (the "Applications"). To the best knowledge of such
counsel, there are no claims of third parties to any ownership interest or lien
with respect to any of the Patents or Applications. Such counsel is not aware of
any material defect in form in the preparation or filing of the Applications on
behalf of the Company. To the best knowledge of such counsel, the Applications
are being pursued by the Company. To the best knowledge of such counsel, the
Company owns as its sole property the Patents and pending Applications.
(ii) The Company is listed in the records of the appropriate
foreign offices as the sole holder of record of the foreign patents listed on a
schedule to such opinion (the "Foreign Patents") and each of the applications
listed on a schedule to such opinion (the "Foreign Applications"). Such counsel
knows of no claims of third parties to any ownership interest or lien with
respect to the Foreign Patents or Foreign Applications. Such counsel is not
aware of any material defect in form in the preparation or filing of the Foreign
Applications on behalf of the Company. To the best knowledge of such counsel,
the Foreign Applications are being pursued by the Company. To the best knowledge
of such counsel, the Company owns as its sole property the Foreign Patents and
pending Foreign Applications.
(iii) Such counsel knows of no reason why the Patents or
Foreign Patents are not valid as issued. Such counsel has no knowledge of any
reason why any patent to be issued as a result of any Application or Foreign
Application would not be valid or would not afford the Company useful patent
protection with respect thereto.
(iv) The Registration Statement, the preliminary prospectus
and the Prospectus fairly and accurately describe the Company's rights with
respect to the Patents, Foreign Patents, Applications, Foreign Applications and
other Intellectual Property. Nothing has come to the attention of such counsel
which caused them to believe that the above-mentioned sections of the
Registration Statement, at the time the Registration Statement became effective
and at all times subsequent thereto up to and on the Closing Date and on any
later date on which Option Shares are to be purchased, the Registration
Statement and any amendment or supplement thereto contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(v) Such counsel knows of no material action, suit, claim or
proceeding relating to patents, patent rights or licenses, trademarks or
trademark rights, copyrights,
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53
collaborative research, licenses or royalty arrangements or agreements or trade
secrets, know-how or proprietary techniques, including processes and substances,
owned by or affecting the business or operations of the Company which are
pending or threatened against the Company or any of its officers or directors.
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SUPPLEMENTS
EXHIBIT B
LOCK-UP AGREEMENT
ING Barings LLC
As Representative of the Several Underwriters
c/o ING Barings LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Robotic Vision Systems, Inc.
Dear Sirs:
The undersigned is the record owner of shares of common stock,
par value $.01 per share, shares of preferred stock, par value $.01 per share
and/or warrants or options representing shares of common stock (such shares of
common stock, shares of preferred stock, warrants and options herein referred to
as the "Securities"), of Robotic Vision Systems, Inc., a Delaware corporation
(the "Company"). The undersigned understands that the Company currently intends
to file with the Securities and Exchange Commission a Registration Statement on
Form S-3 (the "Registration Statement"), for the registration of the Company's
common stock, which will be underwritten by a group of underwriters for whom ING
Barings LLC ("ING Barings") will act as representative.
The undersigned agrees that the undersigned will not, without
the prior consent of ING Barings, directly or indirectly for a period of 180
days from the date the Registration Statement has been declared effective: (1)
offer for sale, contract to sell, sell, pledge or otherwise dispose of (or enter
into any transaction or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the future of) any
Securities or securities convertible into, exercisable or exchangeable for, or
represent the right to receive, Securities or sell or grant options, rights or
warrants with respect to any Securities or register for sale any outstanding
Securities; or (2) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic benefits or risks
of ownership of such Securities or securities, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Securities
or other securities, in cash or otherwise.
Notwithstanding the foregoing, (i) gifts or (ii) transfers to
(A) the undersigned's immediate family or (B) a trust or partnership the
beneficiaries and sole partners of which are members of the undersigned's
immediate family and/or the undersigned, shall not be prohibited by this
agreement if the donee or transferee agrees in writing to be bound by the
foregoing in the same manner as it applies to the undersigned. "Immediate
family" shall mean spouse, lineal descendants, father, mother, brother or sister
to the transferor. This agreement shall not prohibit the exercise of any stock
options, except that the Securities obtained upon any such exercise shall be
subject to the limitations on disposition herein.
Very truly yours,
______________________________ By:___________________________
Printed Name of Stockholder Name:
Exactly as it Appears on Stock Title:
Certificate
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SUPPLEMENTS
EXHIBIT C
MATTERS TO BE COVERED IN THE
OPINION OF SELLING SHAREHOLDERS' COUNSEL
(i) The Underwriting Agreement has been duly authorized, executed and
delivered by or on behalf of, and is a valid and binding agreement of, such
Selling Stockholder, enforceable in accordance with its terms, except as rights
to indemnification thereunder may be limited by applicable law and except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles.
(ii) The execution and delivery by such Selling Stockholder of, and the
performance by such Selling Stockholder of its obligations under, the
Underwriting Agreement and its Agency and Custody Agreement [and its Power of
Attorney] will not contravene or conflict with, result in a breach of, or
constitute a default under, the charter or by-laws, partnership agreement, trust
agreement or other organization documents, as the case may be, of such Selling
Stockholder, or, to the best of such counsel" knowledge, violate, result in a
breach of or constitute a default under the terms of any other agreement or
instrument to which such Selling Stockholder is a party or by which it is bound,
or any judgment, order or decree applicable to such Selling Stockholder of any
court, regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over such Selling Stockholder.
(iii) Such Selling Stockholder has good and valid title to all of the
Common Shares which may be sold by such Selling Stockholder under the
Underwriting Agreement and has the legal right and power, and all authorization
and approvals required [under it charter and by-laws,] [partnership agreement,]
[trust agreement] [or other organization documents, as the case may be,] to
enter into the Underwriting Agreement and its Agency and Custody Agreement [and
its Power of Attorney] to sell, transfer and deliver all of the Common Shares
which may be sold by such Selling Stockholder under the Underwriting Agreement
and to comply with its other obligations under the Underwriting Agreement, its
Agency and Custody Agreement[ and its Power of Attorney].
(iv) [Each of] the Agency and Custody Agreement [and Power of Attorney]
of such Selling Stockholder has been duly authorized, executed and delivered by
such Selling Stockholder and is a valid and binding agreement of such Selling
Stockholder, enforceable in accordance with its terms, except as rights to
indemnification thereunder may be limited by applicable law and except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles.
(v) Assuming that the Underwriters purchase the Shares which are sold
by such Selling Stockholder pursuant to the Underwriting Agreement for value, in
good faith and without notice of any adverse claims, the delivery of such Shares
pursuant to the Underwriting Agreement will pass good and valid title to such
Shares, free and clear of any security interest, mortgage, pledge, lieu
encumbrance or other claim.
(vi) To the best of such counsel's knowledge, no consent, approval,
authorization or other order of, or registration or filing with, any court or
governmental
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56
SUPPLEMENTS
authority or agency, is required for the consummation by such Selling
Stockholder of the transactions contemplated in the Underwriting Agreement,
except as required under the Securities Act, applicable state securities or blue
sky laws, and from the National Association of Securities Dealers.
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57
SUPPLEMENTS
MATTERS TO BE COVERED IN THE OPINION OF UNDERWRITERS' COUNSEL
(i) The Firm Shares have been duly authorized and, upon
issuance and delivery and payment therefor in accordance with the terms
of the Underwriting Agreement, will be validly issued, fully paid and
non-assessable.
(ii) The Registration Statement complied as to form in all
material respects with the requirements of the Act; the Registration
Statement has become effective under the Act and, to such counsel's
knowledge, no stop order proceedings with respect thereto have been
instituted or threatened or are pending under the Act.
(iii) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(iv) The Underwriting Agreement has been duly authorized,
executed and delivered by the Selling Shareholders.
In addition, such counsel shall state that such counsel has participated in
conferences with officials and other representatives of the Company, the
Representative, Company Counsel and the independent certified public accountants
of the Company, at which such conferences the contents of the Registration
Statement and Prospectus and related matters were discussed, and although they
have not verified the accuracy or completeness of the statements contained in
the Registration Statement or the Prospectus, nothing has come to the attention
of such counsel which leads them to believe that, at the time the Registration
Statement became effective and at all times subsequent thereto up to and on the
Closing Date, the Registration Statement and any amendment or supplement thereto
(other than the financial statements including supporting schedules and other
financial and statistical information included in such Registration Statement
and Prospectus, as to which such counsel need express no opinion) contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein no misleading,
or at the Closing Date, the Registration Statement, the Prospectus and any
amendment or supplement thereto (except as aforesaid) contained any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
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