Exhibit 1.1
NOUVEAU INTERNATIONAL, INC.
1,100,000 SHARES OF COMMON STOCK
UNDERWRITING AGREEMENT
December , 1996
Americorp Securities, Inc.
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Gentlemen:
Nouveau International, Inc., a Delaware corporation (the "Company") has
authorized 3,000,000 shares of Preferred Stock, $.001 par value ("Preferred
Stock") and 25,000,000 shares of Common Stock, $.001 par value ("Common Stock")
and has the number of outstanding shares of Common Stock as set forth under the
heading "Capitalization" in the Prospectus, as hereinafter defined, adjusted
only for conversion of 70 shares of Series A Preferred Stock into 1,800,050
shares of Common Stock prior to the date hereof as described therein and any
subsequent exercises of outstanding stock options and warrants. The Company
proposes to issue and sell to you as underwriter (the "Underwriter"), 1,100,000
of its authorized and unissued shares (the "Firm Shares") of Common Stock
containing such terms and conditions as are contained in the form of Common
Stock certificate which is filed as an exhibit to the registration statement
hereinafter mentioned.
In addition, the Company proposes to grant to you the right to purchase up
to 165,000 additional shares of Common Stock (the "Optional Shares"), for the
sole purpose of covering over-allotments in the sale of the Firm Shares. Unless
the context otherwise indicates, the Firm Shares and the Optional Shares are
sometimes referred to herein collectively as the "Shares." The Shares are more
fully described in the registration statement, which the Company has furnished
to you, acting as underwriter (the "Underwriter"). This is to confirm our
agreement with respect to the purchase of the Shares.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with the Underwriter that:
(a) A registration statement on Form SB-2 (File No. 333-13197), for the
registration of the Shares has been prepared by the Company in conformity with
the applicable provisions of the Securities Act of 1933, as amended (the "Act"),
and the applicable rules, regulations,
releases and instructions (the "Rules under the Act") of the Securities and
Exchange Commission (the "Commission"), and has been filed with the Commission;
and one or more amendments to said registration statement, copies of which have
heretofore been delivered to the Underwriter, has or have been filed by the
Company; and the Company may file on or prior to the effective date an
additional amendment to the registration statement. Included in the
registration statement are 110,000 underwriter's warrants ("Underwriter's
Warrants") and an underlying 110,000 shares of Common Stock (the "Warrant
Shares") to be sold by the Company. As used in this Agreement, the term
"Registration Statement" refers to and means the registration statement, and all
amendments thereto, including the prospectus, documents incorporated by
reference therein, exhibits and financial statements, at the time it becomes
effective; and the term "Prospectus" refers to and means the prospectus included
in the Registration Statement at the time it becomes effective (including
documents incorporated by reference therein), except that, if the prospectus
first filed by the Company pursuant to Rule 424(b) of the Rules under the Act
shall differ from the prospectus included in the Registration Statement, the
term Prospectus shall mean the prospectus filed pursuant to Rule 424(b)
(including documents incorporated by reference therein). The Company will not
file at any time any amendment or supplement to the Registration Statement or
the Prospectus without previous advice to the Underwriter, nor if the same shall
be reasonably objectionable in form or substance to the Underwriter or its
counsel.
(b) The Commission has not issued any order preventing or suspending the
use of any preliminary prospectus (the "Preliminary Prospectus") with respect to
the Shares and each Preliminary Prospectus conformed in all material respects
with the requirements of the Act and the Rules under the Act and has not
included any untrue statement therein 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, except that the foregoing shall not apply to statements
in, or omissions from, any written information furnished to the Company by the
Underwriter specifically for use in the preparation thereof.
(c) When the Registration Statement shall become effective and at all times
subsequent thereto, up to and including the Closing Date or the Option Closing
Date, as hereinafter defined, and when any post-effective amendment thereof
shall become effective, the Registration Statement and the Prospectus (and any
post-effective amendment thereof or the Registration Statement as supplemented)
will comply in all material respects with the applicable provisions of the Act
and the Rules under the Act with respect thereto and the Registration Statement
and the Prospectus and any further amendments or supplements thereto will
contain all statements which are required to be stated therein in accordance
with the Act and the Rules under the Act and neither the Registration Statement
nor the Prospectus will contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading in light of the circumstances in
which made; and when the Prospectus is filed with the Commission pursuant to
Rule 424(b) of the Rules under the Act and at all times subsequent thereto, up
to and including the Closing Date and the Option Closing Date, the Prospectus
(and the Prospectus as amended or supplemented, if the Company shall have filed
with the Commission any amendment thereof or supplement thereto) will comply in
all material respects with the provisions of the Act and the Rules under the Act
and will not
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contain any untrue statement of a material fact 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 in light of the circumstances in which made;
provided, however, that the Company makes no representations or warranties as to
the information contained in or omitted from the Registration Statement or the
Prospectus or any amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished in writing to the Company by the
Underwriter and the only such information is the last paragraph of the cover
page of the Prospectus and the information in the Prospectus under the caption
"Underwriting."
(d) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware. The
Company has no significant subsidiary or subsidiaries and does not control,
directly or indirectly, any significant corporation, partnership, joint venture,
association or other business organization, except for Nouveau Foods
International, Inc., Nouveau Vend International, Inc., Nouveau Equities, Inc.
and Nouveau International (PA), Inc. The foregoing companies are referred to
herein singly as a "Subsidiary" and collectively as the "Subsidiaries" except
where the context otherwise requires. Each Subsidiary has been organized and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation or formation. Each of the Company and each of its
Subsidiaries is duly qualified and in good standing as a foreign corporation in
each jurisdiction in which the character or location of its or any of their
properties (owned, leased or licensed) or the nature of its or any of their
businesses makes such qualification necessary except where the failure to be so
qualified would not have a material adverse effect on the Company and its
Subsidiaries taken as a whole. The Company owns all of the outstanding shares
of capital stock of each of its Subsidiaries free and clear of all liens,
claims, security interests, restrictions, stockholders' agreements, voting
trusts, and any other encumbrances; and all such shares of capital stock have
been duly authorized and are duly and validly issued, fully paid and
nonassessable. Each of the Company and each of the Subsidiaries has full power
and authority (corporate and other) to own or lease its properties and conduct
its business, present and proposed, as described in the Registration Statement
and Prospectus. Each of the Company and each of the Subsidiaries holds all
material licenses, certificates and permits from governmental authorities (both
domestic and foreign) necessary for the conduct of its or their businesses as
described in the Prospectus and owns, or possesses adequate rights to use all
material rights necessary for the conduct of its or their businesses and has not
received any written notice of conflict with the asserted rights of others in
respect thereof and does not know of any material proceeding pending or
threatened seeking to cancel, terminate, or limit such licenses, certificates or
permits.
(e) The financial statements and schedules (including the related notes)
included in the Registration Statement and the Prospectus present fairly the
financial position, results of operations, stockholders' equity and changes in
financial position of the Company and the Subsidiaries as of the respective
dates and for the respective periods indicated, all in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved.
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(f) The accountants who have examined and reported on the audited
financial statements filed with the Commission as parts of the Registration
Statement and the Prospectus are independent public accountants as required by
the Act and the Rules under the Act.
(g) Except as may be reflected in or contemplated by the Registration
Statement or the Prospectus and except for changes resulting from the normal
operation of the Company's and its Subsidiaries' businesses, subsequent to the
dates as of which information is given in the Registration Statement and the
Prospectus (i) there has not been any material adverse change in the financial
condition, in the results of operations or the general affairs of the Company
and its Subsidiaries taken as a whole; (ii) there has not been any material
transaction entered into by the Company or any of the Subsidiaries, other than
transactions in the ordinary course of business; (iii) neither the Company nor
any Subsidiary has incurred any material obligations, contingent or otherwise;
(iv) there has not been any change in the capital stock or long or short term
debt (except current payments) of the Company or the Subsidiaries; (v) there has
not been any issuance of options, warrants, convertible securities or other
rights to purchase the capital stock of the Company or any Subsidiary, and (vi)
there has not been any material adverse change or any development involving a
prospective material adverse change in the condition (financial or other),
business, key personnel, properties, prospective results of operations or net
worth of the Company and the Subsidiaries taken as a whole.
(h) Neither the Company nor any of its Subsidiaries is in violation of its
articles of incorporation or by-laws nor, except as disclosed in the
Registration Statement or Prospectus, in violation of any franchise, license,
permit, judgment, decree, order, statute, rule or regulation, which violation is
material to the Company and the Subsidiaries, taken as a whole, or in material
default in the performance or observance of any obligation, agreement or
condition contained in any note or other evidence of indebtedness or in any
mortgage, indenture or loan agreement or any other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which it or any of
their properties may be bound or affected in any respect which, in any such
case, is material to the Company and the Subsidiaries taken as a whole. The
Company has full right, power and authority to enter into and perform this
Agreement and to issue, sell and deliver the Shares and the Underwriters'
Warrants to be issued and sold by it as provided in this Agreement. The
execution and delivery of this Agreement, the fulfillment of the terms set forth
herein and the consummation of the transactions contemplated herein will not
conflict with or constitute a breach of, or a default under, the articles of
incorporation or by-laws of the Company or any of its Subsidiaries or any
material agreement, or any material indenture or other material instrument by
which the Company or any of its Subsidiaries or any of their properties may be
bound, or any applicable material franchise, license, permit, judgment, decree,
orders, statute, rule or regulation. Except as required by the Act, the
Securities Exchange Act of 1934, as amended, (the "Exchange Act") and applicable
state securities laws, no consent, approval, authorization or order of any
governmental agency or governmental authority (domestic or foreign) is required
in connection with the consummation of the transactions contemplated by this
Agreement on the part of the Company or any Subsidiary where the failure to
obtain such consent, approval or authorization would have a material adverse
effect on the Company and its Subsidiaries taken as a whole.
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(i) Each contract to which the Company or any Subsidiary is a party and to
which reference is made in the Registration Statement and Prospectus has been
duly and validly executed by the Company or such Subsidiary, is in full force
and effect in accordance with its terms and none of such contracts has been
assigned by the Company or such Subsidiary, and the Company knows of no present
situation or condition or fact which would prevent compliance with the terms of
such contracts, as amended to date. Neither the Company nor any Subsidiary has
any intention of exercising any right which it may have to cancel any of its
rights or obligations under any of such contracts and has no knowledge that any
other party to any of such contracts has any intention not to render full
performance under such contracts except as contemplated by the Registration
Statement.
(j) Each of the Company and each of its Subsidiaries has filed all
Federal, state and foreign tax returns which are required to be filed by it or
validly filed extensions thereof, and has paid all taxes shown due on such
returns and all assessments received by it to the extent such taxes have become
due. All taxes with respect to which the Company and each of its Subsidiaries
is obligated have been paid or adequate accruals have been set up to cover any
such unpaid taxes which are not yet due. Nether the Company nor any Subsidiary
received any notice or claim indicating any deficiency in the payment of or
failure to pay any taxes.
(k) Each of the Company and each of its Subsidiaries has good and
marketable title, free and clear of all liens, encumbrances and defects, except
liens for current taxes not due and payable, to all of its properties and assets
which are stated to be owned by it in the Registration Statement and the
Prospectus, subject only to such liens and exceptions as are not material and
liens and encumbrances disclosed in the Prospectus. The properties, including
any equipment, stated to be leased by the Company or any Subsidiary in the
Registration Statement and the Prospectus are held under valid, subsisting and
enforceable leases with only such exceptions which collectively are not material
and do not have a material adverse effect on the present or prospective business
of, or the use of such property by the Company or any Subsidiary.
(l) The Company has an authorized outstanding capitalization as set forth
or contemplated in the Prospectus and based on sale of the Firm Shares will
have, on the Closing Date, the adjusted capitalization as set forth or
contemplated in such Prospectus under the caption "Capitalization"; all of the
outstanding shares of Common Stock of the Company have been validly authorized
and issued and are fully paid and non-assessable and none of such outstanding
shares of Common Stock or outstanding warrants or options to purchase shares of
Common Stock were issued in violation of the pre-emptive rights of any
stockholder of the Company; the Shares and the Underwriter's Warrants have been
duly authorized and, the Warrant Shares, when issued and paid for upon exercise
of the Underwriter's Warrants in accordance with their terms, will be validly
issued, fully paid and non-assessable, will pass valid title to the holders
thereof, free and clear of any lien, encumbrance or claim and all corporate
action required to be taken for the authorization, issuance and sale of the
Shares and the Underwriter's Warrants has been validly and sufficiently taken;
the holders of the outstanding shares of Common Stock and the holders of the
Shares and the Warrant Shares are not and will not be subject to any liability
as shareholders. Except as set forth in the Registration Statement or in the
Prospectus, on the
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effective date of the Registration Statement, the Closing Date and the Option
Closing Date there will be no pre-emptive or other rights to subscribe for or
purchase any shares of Preferred Stock, Common Stock, Underwriter's Warrants, or
Warrant Shares, or any options, warrants, agreements or similar rights calling
for the issuance by the Company of any of its securities.
(m) The Common Stock, Underwriter's Warrants, and the Warrant Shares
conform to the description thereof in the Prospectus and such description
conforms with the rights set forth in the instruments defining the same.
(n) Except as described in the Prospectus, there is no action, suit or
proceeding before any court or governmental agency, authority or body (domestic
or foreign) pending, or, to the knowledge of the Company, threatened, which
might result in judgments against the Company or any Subsidiary not adequately
covered by insurance and which collectively might result in any material adverse
change in the condition (financial or otherwise), business or prospects of the
Company and the Subsidiaries taken as a whole or materially affect their
properties or assets.
(o) The delivery upon payment for the Underwriter's Warrants to be sold by
the Company as set forth in Paragraph 11 of this Agreement will pass good and
marketable title thereto free and clear of any and all liens, encumbrances,
charges and claims whatsoever to the Underwriter, and its designees; and the
Company will have, on the effective date of the Registration Statement and at
the time of delivery of the Underwriter's Warrants, full legal right and power
and all authorization and approval required by law to sell, transfer and deliver
the Underwriter's Warrants in the manner provided hereunder.
(p) The Company does not know of any outstanding claim for services in the
nature of a finder's fee or origination fee with respect to the sale of the
Shares hereunder resulting from its acts for which the Underwriter or the
Company may be responsible.
(q) There are no contracts or other documents which are required by the
Act to be filed as exhibits to the Registration Statement which have not been so
filed; and the exhibits which have been filed are complete and correct copies of
the documents of which they purport to be copies, and all agreements referred to
in the Registration Statement or filed as exhibits to the Registration Statement
to which the Company or any Subsidiary is a party or by which it is or may be
bound or to which any of its assets, properties or businesses is or may be
subject have been duly and validly authorized, executed and delivered by the
Company and constitute the legal, valid and binding agreements of the Company in
accordance with their respective terms and no default by the Company or to the
knowledge of the Company of any other party to said agreements or, any event
which with the giving of notice or passage of time would constitute a default,
has occurred under any such agreement.
(r) Each of the Company and each of the Subsidiaries makes and keeps
accurate books and records reflecting its assets and maintains internal
accounting controls which provide reasonable assurance that (i) transactions are
executed in accordance with management's authorization, (ii) transactions are
recorded as necessary to permit preparation of the Company's
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and the Subsidiary's financial statements and to maintain accountability for the
assets of the Company and each Subsidiary, (iii) access to the assets of the
Company and each Subsidiary is permitted only in accordance with management's
authorization, and (iv) the recorded accountability of the assets of the Company
and each Subsidiary is compared with existing assets at reasonable intervals.
(s) The Company has the full right, power and authority to enter into this
Agreement and this Agreement has been duly and validly authorized, executed and
delivered by the Company and is a validly binding agreement enforceable in
accordance with its terms.
(t) Neither the Company, nor any Subsidiary, nor any Company predecessor
entity has at any time during the past five years; (i) made any unlawful
contributions to any candidate for political office, or failed to disclose fully
any contribution in violation of law, or (ii) made any payment to any state,
Federal or foreign government officer or official, or other person charged with
similar public or quasi-public duties (other than payments required or permitted
by applicable law).
(u) Except as set forth in the Prospectus, neither the Company nor any
Subsidiary maintains any "employee benefit plan" as defined in Section 3(3) of
the Employment Retirement Income Security Act of 1974, as amended, ("ERISA") and
to the best of the Company's knowledge and belief, after diligent investigation
and inquiry (A) there is no material liability of the Company or any Subsidiary
as a result thereof and (B) no "accumulated funding deficiency" (as defined in
Section 302 of ERISA) whether or not waived, exists with respect to any such
plan.
(v) The Company and its Subsidiaries have their properties adequately
insured.
(w) Except as set forth in the Prospectus, there are no actions, suits or
proceedings pending before or by any court or governmental agency, authority or
body, or any arbitrator, which is reasonably likely to result in any material
adverse change in the condition (financial or other), business prospects, net
worth or results of operations of the Company and the Subsidiaries, taken as a
whole and, to the best of the Company's knowledge, no such action, suit or
proceeding is contemplated or threatened.
(x) The Company has not taken and will not take, directly or indirectly,
any action designed to cause or result in, or which has constituted, the
stabilization or manipulation of the price of the Common Stock or any other
outstanding security to facilitate the sale or resale of the Shares, the
Underwriter's Warrants or any underlying security, provided; however, that
nothing herein shall be construed as extending to any action of the Underwriter
or Selected Dealers.
(y) Except as set forth in the Prospectus, the Company and each Subsidiary
has all government approvals, grants or licenses (domestic and foreign)
necessary for the conduct of its business as described in the Prospectus and is
in compliance with all regulations relating to the same.
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2. PURCHASE AND SALE OF THE SHARES. (a) The Company agrees to issue and
sell to the Underwriter, and subject to the terms and conditions set forth
herein and, in reliance upon the representations and warranties herein set
forth, the Underwriter agrees to purchase from the Company, the Firm Shares at a
purchase price of $_.__ per Firm Share.
(b) The Company further agrees that on the Closing Date, as hereinafter
defined, it will sell to the Underwriter and to such other persons designated by
it, the Underwriter's Warrants more particularly described in Paragraph 11 of
this Agreement.
3. DELIVERY AND PAYMENT. Delivery and payment for the Firm Shares shall
be made at the offices of Americorp Securities, Inc. or at the offices of its
Clearing Agent, in New York, New York on such date and at such time (such date
and time being herein sometimes referred to as the "Closing Date"), as the
Underwriter may specify in writing, but such date shall not be later than three
(3) business days after the date on which the Registration Statement becomes
effective; provided, however, that if counsel for the Company or for the
Underwriter deems it necessary that either a further amendment to the
Registration Statement or supplement to the Prospectus be filed prior to the
Closing Date, the Closing Date shall be on a date to be thereafter fixed by the
Underwriter on notice to the Company, such date to be not earlier than the third
business day, nor later than the tenth business day, after the effective date of
such amendment or the date of filing with respect to such supplemented
Prospectus. The Closing Date and the place of delivery may be changed by
written agreement between the Company and the Underwriter. Delivery of the Firm
Shares shall be made to the Underwriter against payment by the Underwriter of
the purchase price for the Firm Shares to or upon the order of the Company by
certified or official bank check or checks payable in New York Clearing House
funds or by wire transfer of funds to the Company's designated account.
The certificates for the Firm Shares to be delivered by the Company will be
in definitive, fully registered form, will bear no restrictive legends and will
be in such denominations and registered in such names as the Underwriter shall
request not less than two full business days prior to the Closing Date, and the
certificates for the Firm Shares purchased hereunder will be made available to
the Underwriter or its clearing agent for inspection, checking and packaging not
later than one full business day prior to the Closing Date.
4. OPTION TO PURCHASE OPTIONAL SHARES. (a) For the purposes of covering
any over-allotments in connection with the distribution and sale of the Firm
Shares as contemplated by the Prospectus, you are hereby granted an option to
purchase all or any part of the Optional Shares from the Company. The purchase
price to be paid for the Optional Shares shall be the same price per Optional
Share as the price per Firm Share set forth in Paragraph 2 hereof. The option
granted hereby may be exercised as to all or any part of the Optional Shares at
any time, and from time to time, within 45 days after the date of the
Prospectus. You shall be under no obligation to purchase any or all of the
Optional Shares unless and to the extent such option is exercised.
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(b) The option granted hereby may be exercised by you by giving
telegraphic notice to the Company setting forth the number of Optional Shares to
be purchased and the date and time for delivery of any payment for the Optional
Shares and stating that the Optional Shares referred to therein are to be used
for the purpose of covering over-allotments in connection with the distribution
and sale of the Firm Shares. If such notice is given prior to the Closing Date,
the date set forth therein for such delivery and payment may, at your option be
either the Closing Date or two full business days after such notice, whichever
occurs later. If such notice is given on or after the Closing Date, the date
set forth therein for such delivery and payment shall not be earlier than five
business days after the date of such notice. In either event, the date so set
forth shall not be more than ten full business days after the date of such
notice. The date and time set forth in such notice is herein sometimes referred
to as the "Option Closing Date." Upon exercise of the option, the Company shall
become obligated to deliver to you, and subject to the terms and conditions set
forth in Paragraph 4 (d) hereof, you shall become obligated to purchase the
respective number of Optional Shares set forth in the notice of exercise.
Payment for the Optional Shares shall be made to the Company by certified
or official bank check or checks payable in New York Clearing House funds, at
your offices, or at the offices of your clearing agent in New York City as set
forth in a notice delivered to the Company, or by wire transfer to an account
designated by the Company, against delivery of the Optional Shares to you. The
certificates representing the Optional Shares to be delivered will be in such
denominations and registered in such names as you shall request not less than
two full business days prior to the Option Closing Date, and will be made
available to you or your clearing agent for inspection, checking and packaging
at your aforesaid office, or at the offices of your clearing agent in New York
City not less than one full business day prior to the Option Closing Date.
(d) Your obligation to purchase and pay for any of the Optional Shares is
subject to the accuracy in all material respects of (as of the date hereof and
the applicable Option Closing Date) and compliance by the Company with the
representations and warranties herein, to the accuracy of the statements of the
officers of the Company made pursuant to the provisions hereof, to the
performance in all material respects by the Company of its obligations
hereunder, to the satisfaction by the Company of the conditions as of the
Closing Date and of the Option Closing Date set forth in Paragraph 7 hereof, and
to the delivery to you of opinions, certificates and letters dated the Option
Closing Date substantially the same in scope and substance to those specified in
subparagraphs (e), (f) and (g) of Paragraph 7 hereof, but with each reference to
"Firm Shares," and "Closing Date" to be, respectively, to the Optional Shares
and the Option Closing Date.
5. OFFERING BY UNDERWRITER. (a) After the Registration Statement becomes
effective you will offer the Shares for sale to the public upon the terms set
forth in the Prospectus.
(b) You are authorized to change the public offering price and concessions
and discounts to dealers, provided that no such change requiring an amendment to
the Prospectus will
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be made unless the Prospectus shall first have been amended and such amendment
declared effective.
6. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Underwriter that:
(a) The Company will use its best efforts to cause the Registration
Statement and any amendments thereto to become effective and will advise the
Underwriter immediately and, if requested by the Underwriter, will confirm such
advice in writing (i) when the Registration Statement has become effective and
when any post-effective amendment thereto becomes effective, or when any
supplement to the Prospectus or any amended Prospectus has been filed, (ii) of
any request by the Commission for any amendments or supplements to the
Registration Statement or the Prospectus or for any additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any Preliminary Prospectus or the institution or threat of
any proceedings for that purpose, (iv) of the happening of any event which in
the judgment of the Company makes any material statement in the Registration
Statement or the Prospectus untrue or which requires any changes to be made in
the Registration Statement or the Prospectus in order to make any material
statements therein not misleading, and (v) of the suspension of the
qualification of the Firm Shares for offering or sale in any jurisdiction, or
the institution or threatening of any proceeding for that purpose. The Company
will use its best efforts (i) to prevent the issuance of any such stop order or
of any order preventing or suspending the use of the Registration Statement or
Prospectus and (ii) if issued, to obtain the lifting or removal of such order as
soon as possible.
(b) The Company will not at any time, whether before, on, or after the
effective date of the Registration Statement, file any amendment to the
Registration Statement or supplement to a Preliminary Prospectus or to the
Prospectus of which the Underwriter shall not previously have been advised and
furnished with copies, or to which the Underwriter shall have reasonably
objected in writing or which is not in compliance with the Act and the Rules
under the Act.
(c) The Company will deliver to the Underwriter, without charge, a
reasonable number of copies of the Registration Statement, including all
financial statements and exhibits (four of which shall be signed) and include
all exhibits filed therewith and any amendments or supplements thereto. Two
conformed copies of the Registration Statement, including all financial
statements and exhibits filed therewith shall also be delivered to the
Underwriter.
(d) Prior to the effective date of the Registration Statement, the Company
will have delivered to the Underwriter, without charge, in such quantities as
the Underwriter may have requested, copies of each form of Preliminary
Prospectus. The Company consents to the use of each form of Preliminary
Prospectus by the Underwriter, and by dealers prior to the effective date of the
Registration Statement in conformity with the Act and State Blue Sky Laws.
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(e) The Company will deliver to the Underwriter and each Selected Dealer,
without charge, immediately after the effective date of the Registration
Statement and thereafter from time to time as many copies as they may reasonably
request of the Prospectus and of any amended or supplemented Prospectus.
(f) If during such period of time as in the opinion of the Underwriter or
its counsel a prospectus relating to this financing is required to be delivered
under the Act, due to the occurrence of any event as a result of which the
Prospectus as then amended or supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or if it shall be necessary during any time after the
effective date of the Registration Statement to amend or supplement the
Prospectus to comply with the Act or the Rules under the Act, the Company will
forthwith notify the Underwriter and its counsel thereof and prepare and file
with the Commission and furnish and deliver to the Underwriter and to others
whose names and addresses are designated by the Underwriter, all at the cost of
the Company, reasonable quantities of the amended or supplemented Prospectus
which as so amended or supplemented will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
Prospectus as amended or supplemented not misleading in the light of the
circumstances when it is delivered to a purchaser or prospective purchaser, and
which will comply in all respects with the Act and the Rules under the Act, and
cause any amendment of the Registration Statement containing an amended
Prospectus to be made effective as soon as possible.
(g) For a period of five years from the effective date of the Registration
Statement, the Company will deliver to the Underwriter (i) after each fiscal
year, the Company's Form 10-K with respect to such year at the time such Form
10-K is filed with the Commission and, if no Form 10-K is required to be filed,
such financial data with respect to such year as would be required to be filed
by the Company with the Commission pursuant to the instructions to Form 10-K
under the Exchange Act, prepared in accordance with generally accepted
accounting principles and practices as at the end of such fiscal year and for
the twelve months then ended, and covered by a report of independent certified
public accountants; (ii) after each of the first three fiscal quarters of the
Company, the Company's Form 10-Q with respect to such quarter at the time such
form 10-Q is filed with the Commission and, if no Form 10-Q is required to be
filed, such financial data with respect to such quarter as would be required to
be filed by the Company with the Commission pursuant to the instructions to Form
10-Q under the Exchange Act, all in reasonable detail and certified by the
Company's principal financial or accounting officer; (iii) copies of its annual
report and any other reports or communications (financial or other) of the
Company at the time it is mailed to its stockholders or filed with the
Commission; (iv) two copies of every press release and every material news item
and article in respect of the Company and its affairs at the time it is released
by the Company; (v) copies of transfer reports from its transfer agent; and (vi)
such additional documents and information with respect to the Company and its
affairs as the Underwriter may from time to time reasonably request.
11
(h) The Company will make generally available to its stockholders, in the
manner specified in Rule 158(b) under the Act, and deliver to the Underwriter as
soon as practicable, but in no event later than 45 days after the end of its
first fiscal quarter ending 12 months after the effective date of the
Registration Statement, a consolidated earnings statement (which need not be
audited) meeting the requirements of said Rule 158(b) covering a period of at
least twelve months beginning not earlier than the effective date of the
Registration Statement.
(i) The Company will use the net proceeds to be received by it from the
sale of the Firm Shares in the manner and for the purposes set forth in the
Prospectus.
(j) The Company will deliver to the Underwriter true and correct copies of
the Company's articles of incorporation and all amendments thereto, such copies
to be certified by the secretary of the Company; true and correct copies of the
By-Laws of the Company and of the minutes of all meetings of the directors and
stockholders of the Company held prior to the Closing Date; and true and correct
copies of all material contracts to which the Company is a party.
(k) Prior to the public offering of the Firm Shares the Company will
cooperate with the Underwriter and its counsel in connection with the
registration or qualification of the Firm Shares, Optional Shares, the
Underwriter's Warrants, and the Warrant Shares for offering and sale by the
Underwriter and dealers under the securities or Blue Sky laws of such states as
the Underwriter may designate and will file such consents to service of process
or other documents as may be necessary in order to effect such registration or
qualification. The Company shall bear the expenses incurred in filing for
qualification and in qualifying the Firm Shares, Optional Shares, the
Underwriter's Warrants, and the Warrant Shares under the securities or Blue Sky
laws of such states, including the fees and charges of the various states, the
cost of printed preliminary, supplementary and final memoranda or surveys with
respect thereto, and the reasonable fees and expenses of the Underwriter's
counsel incurred in connection therewith. The Company shall not be required
however, to qualify as a foreign corporation or sign a general consent to
service of process in any jurisdiction where it is not now subject. In each
jurisdiction where any of its securities shall have been qualified, the Company
will file such reports and statements with respect thereto as may be required by
the applicable governmental or administrative body.
(l) During the period from the Closing Date to the Date the exercise
rights represented by the Underwriter's Warrants either have been fully
exercised or have lapsed, the Company will at all times have authorized and
reserved a sufficient number of shares of its underlying Common Stock to provide
for the exercise of the Underwriter's Warrants.
(m) The Company will pay and bear, whether or not the transactions
contemplated hereunder are consummated or this Agreement is prevented from
becoming effective, or is terminated, all costs and expenses incident to the
performance of its obligations under this Agreement, including all expenses
incident to the authorization of the Shares and their issuance and delivery to
the Underwriter, the authorization of the Underwriter's Warrants and their sale
to the Underwriter, any original issue taxes in connection therewith, all
transfer taxes, if any,
12
incident to the initial sale of the Shares to the Underwriter and to the initial
sale of the Shares by the Underwriter to the public and to Selected Dealers, the
fees and expenses of the Company's counsel and accountants (but excluding fees
and expenses of Counsel to the Underwriter, except where such Counsel shall have
acted as "blue sky" Counsel to the Company), the costs and expenses incident to
the issuance, sale and delivery of the Shares, the Underwriter's Warrants and
the underlying shares, the costs and expenses incident to the preparation,
printing and filing under the Act of the Registration Statement (including
financial statements), any Preliminary Prospectus and the Prospectus and any
amendments or supplements thereto; the printing and distribution of this
Agreement, the Selected Dealer Agreement, the Blue Sky survey, the Underwriter's
Warrant Agreement, the certificates for the Shares and the Underwriter's
Warrants, the filing fees of the Securities and Exchange Commission and the
National Association of Securities Dealers, Inc. and any state regulatory
agencies, the cost of preparing and filing all exhibits to the Registration
Statement and the cost of furnishing to the Underwriter copies of the
Registration Statement and Prospectus.
(n) The Company will pay to the Underwriter a non-accountable expense
allowance equal to $_.__ per share for each Share (Firm Share and Optional
Share) sold to the Underwriter pursuant to this Agreement. The expense
allowance is to be paid out of the proceeds of the sale of the Shares and may be
deducted by the Underwriter on the Closing Date, and the Option Closing Date
from the amount due to the Company.
(o) Prior to the Closing Date, the Company will cooperate with the
Underwriter in such investigation as the Underwriter may make or cause to be
made of the properties, business and operations of the Company in connection
with the purchase and public offering of the Shares and will make available to
the Underwriter in connection therewith such information as the Underwriter may
request in connection with the business or properties of the Company.
(p) The Company has appointed Registrar and Transfer Company as Transfer
Agent for the Common Stock. Such appointment may be changed only if the
proposed new appointee is reasonably acceptable to the Underwriter.
(q) Except as set forth in the Prospectus, during a period of 180 days
from the effective date of the Registration Statement, the Company will not
without the Underwriter's prior written consent, issue, sell or otherwise
dispose of, directly or indirectly, any Common Stock, Preferred Stock (or any
securities convertible into or exercisable to purchase Common Stock or Preferred
Stock) other than the Shares and Underwriter's Warrants and underlying shares
being sold by the Company hereunder or securities issued pursuant to outstanding
options or warrants, without the Underwriter's prior written consent.
(r) The Company will deliver to the Underwriter on the Closing Date, the
agreement of the persons set forth on Schedule I to this agreement not to sell
securities of the Company for the period set forth on Schedule I hereto.
13
(s) The Company will comply with the Act, Rules under the Act and the
Exchange Act and the rules and regulations of the Commission promulgated under
the Exchange Act so as to permit the continuance of sales of, and dealings in,
the Stock, Underwriter's Warrants and underlying securities under the Act and
under the Exchange Act.
(t) The Company will use its best efforts to cause the Common Stock to be
admitted for separate listing on NASDAQ and to maintain the listing on NASDAQ
during the period the respective securities are outstanding or for a period of
five years, whichever first occurs.
(u) The Company will deliver to the Underwriter and its counsel named on
the cover page of the Registration Statement bound volumes of copies of all
documents and appropriate correspondence filed or received from the Commission
and all closing documents.
(v) The Company agrees, that for a period of three years following the
Closing it will engage a single designee selected by the Underwriter as an
advisor to its Board of Directors and such advisor shall be entitled to the same
notice as members of the Board of Directors or any committee of the Board of
Directors of the Company of any meetings thereof, and to attend all meetings of
such Board of Directors and/or committees and shall be reimbursed for all
reasonable costs in attending such meetings including, but not limited to, food,
lodging and transportation. Such advisor shall also be entitled to receive all
memoranda, reports and other documents distributed to members of the Board or
such committees subject to the execution by the advisor of reasonable
non-disclosure agreements, and to be indemnified to the same extent as the
Company's directors.
7. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter to purchase and pay for the Shares is subject to the continuing
accuracy of and compliance with the representations and warranties on the part
of the Company contained herein as of the date hereof and as of the Closing
Date, to the performance by the Company of its obligations and covenants
hereunder, to the absence from any certificates, opinions, written statements or
letters furnished to the Underwriter or to its counsel of any misstatement or
omission that is material to the purchase of the Shares by the Underwriter and
to the following additional conditions:
(a) The Registration Statement shall have become effective not later than
9:30 P.M., New York time, on the day after the date of this Agreement, or such
later date or time as shall have been consented to by the Underwriter; no stop
order suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or shall
be pending, threatened or contemplated by the Commission; and any request for
additional information on the part of the Commission (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been complied
with, and no amendments or supplements to the Registration Statement or
Prospectus shall have been filed to which the Underwriter and its counsel have
not given their consent.
(b) All corporate action taken and all legal opinions and proceedings
relating to the Shares, the Underwriter's Warrants and the Warrant Shares, the
Registration Statement and the
14
Prospectus and all other matters incident thereto and to the transactions to
which this Agreement relate shall be reasonably satisfactory to Underwriter's
counsel and they shall have been furnished with such certificates, documents and
information as they may request in this connection.
(c) The Company shall have performed each of the agreements herein
contained and required to be performed by it at or prior to the Closing Date and
the Option Closing Date.
(d) On the Closing Date and Option Closing Date (i) the Registration
Statement and the Prospectus and any amendments or supplements thereto shall
contain all statements which are required to be stated therein in accordance
with the Act and the Rules under the Act and shall in all material respects
conform to the requirements of the Act and the Rules under the Act and neither
the Registration Statement nor the Prospectus nor any amendment or supplement
thereto shall contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) since the respective dates as of which
information is given in the Registration Statement and the Prospectus there
shall have been no material adverse changes in the business, property or
financial condition of the Company and its Subsidiaries from that set forth in
the Registration Statement and the Prospectus other than changes occurring in
the ordinary course of business, and there shall have been no material
transaction, contract or agreement entered into by the Company or any Subsidiary
which is not referred to in the Registration Statement and the Prospectus, (iii)
no action, suit or proceeding at law or in equity shall be pending or, to the
knowledge of the Company, threatened against the Company or any Subsidiary which
would be required to be set forth in the Registration Statement and the
Prospectus other than as set forth therein, and no proceedings shall be pending
or, to the knowledge of the Company, threatened against the Company or any
Subsidiary before or by any Federal, state or other (including foreign)
commission, board or administrative agency wherein an unfavorable decision,
ruling or finding would have a material adverse effect upon the business,
property, financial condition or income of the Company and the Subsidiaries
taken as a whole except as disclosed in the Prospectus and (iv) neither the
Company nor any Subsidiary shall have declared or made any payments of dividends
or made any acquisitions of capital stock or made any other distribution on
outstanding shares of capital stock other than as set forth in the Registration
Statement (except for distributions made to the Company by a Subsidiary).
(e) The Underwriter shall receive on, and as of the Closing Date and the
Option Closing Date, the favorable opinion of Brock, Fensterstock, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLC, counsel for the Company, to the Underwriter in form and
substance satisfactory to counsel to the Underwriter, to the effect that:
(i) the Company is a corporation in good standing, duly organized and
validly existing under the laws of the state of its incorporation, and is
authorized by its Certificate of incorporation and by-laws to own its
properties and to conduct its business, as set forth in the Prospectus;
15
(ii) to the best of such counsel's knowledge, the sole subsidiaries of
the Company are Nouveau Foods International, Inc., Nouveau Vend
International, Inc., Nouveau Equities, Inc. and Nouveau International (PA),
Inc., all of the outstanding capital stock of which are wholly owned by the
Company, and each such Subsidiary is a corporation in good standing, duly
organized and validly existing under the laws of the state of its
incorporation, and is authorized by its Certificate of Incorporation and
by-laws to own its properties and to conduct its business as set forth in
the Prospectus;
(iii) to the best of such counsel's knowledge, the Company and each of
its Subsidiaries is duly qualified to transact the business in which it is
engaged and is in good standing in each jurisdiction in which its ownership
or lease of property requires such qualification or registration, except in
those jurisdictions where the failure to be so qualified would not, taken
in the aggregate, have a material adverse effect on the business, financial
condition or results of the Company and the Subsidiaries taken as a whole;
(iv) the Company has an authorized capitalization as set forth in the
Registration Statement; all of the outstanding shares of Common Stock of
the Company have been duly and validly authorized and issued and all of the
outstanding shares of Common Stock are fully paid and non-assessable. The
outstanding shares of Common Stock are not, and the Shares and the
Underwriter's Warrants (including the Warrant Shares) to be sold by the
Company hereunder are not subject to the preemptive right of any
shareholder of the Company. The Shares to be sold by the Company have been
validly authorized and, when issued and delivered by the Company pursuant
to this Agreement against payment of the consideration set forth herein,
will be fully paid and non-assessable; the Underwriter's Warrants to be
sold by the Company have been validly authorized and issued and represent
the valid and binding obligations of the Company enforceable in accordance
with their terms, subject as to enforcement of remedies to the discretion
of a court with respect to the granting of equitable relief and to
applicable bankruptcy, insolvency, moratorium and other laws now or
hereafter in effect affecting the rights of creditors generally; and the
Warrant Shares underlying the Underwriter's Warrants have been validly
authorized and reserved for issuance and when issued upon exercise of the
Underwriter's Warrants will be validly issued and will be fully paid and
non-assessable;
(v) The Common Stock and Warrants (including Underwriter's Warrants)
of the Company conform as to legal matters to the description thereof
contained in the Prospectus and such description conforms to the rights set
forth in the instruments defining the same, and the certificates for the
Shares and Underwriter's Warrants delivered at the Closing are in due and
proper form;
(vi) this Agreement has been duly and validly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company enforceable in accordance with its terms, subject as to enforcement
of remedies, to the discretion of a court with respect to the application
of equitable principles and to applicable bankruptcy, insolvency,
moratorium and other laws now or hereafter in effect affecting the rights
of
16
creditors generally and except that such counsel need not express an
opinion with respect to the indemnification and contribution provisions set
forth in Paragraphs 8 and 9 of this Agreement; the Company has the legal
power to sell and deliver the Shares and Underwriter's Warrants pursuant to
the provisions of this Agreement; the execution, performance and delivery
of this Agreement and the consummation of the transactions contemplated in
this Agreement to be performed by the Company do not conflict with, result
in a breach of, or constitute a default under the Company's certificate of
incorporation, by-laws, and, to the best of such counsel's knowledge, do
not constitute a breach or default under any material indenture, mortgage,
deed of trust, voting trust agreement, note agreement or other agreement
or instrument to which the Company or any Subsidiary is a party or, to the
best of such counsel's knowledge, any statute, order, rule or regulation of
any court, regulatory body, administrative agency or governmental body
having jurisdiction over the Company other than "blue sky" or state
securities laws as to which counsel need not express an opinion;
(vii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the performance by the Company
of the transactions contemplated in this Agreement to be performed by it
except for such consents, approvals, authorizations or orders as need be
obtained under the Act and such as may be required under the securities
laws of any jurisdiction in connection with the purchase and distribution
of the Shares by the Underwriter;
(viii) the Registration Statement has become effective under the Act,
and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
threatened; and to the best of such counsel's knowledge, the Registration
Statement, the Prospectus and each amendment thereof or supplement thereto
(except for the financial statements and notes thereto and other financial
and statistical information included therein as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the Act and the Rules under the Act;
(ix) (A) such statutes, contracts and documents as are summarized in
the Registration Statement fairly present the information required to be
shown with respect thereto (other than in the financial statements and
notes thereto and other financial and statistical information included
therein as to which such counsel need express no opinion); and (B) such
counsel does not know of (x) any contracts or documents required to be
summarized or disclosed in the Registration Statement (with the same
exception as in subclause (A)); or required to be filed as exhibits to the
Registration Statement which have not been so summarized, disclosed or
filed, or (y) any legal or governmental proceedings pending or, to the best
of such counsel's knowledge, threatened against or involving the properties
or the business of the Company or the Subsidiaries of a character required
to be disclosed in the Registration Statement and the Prospectus which have
not been so disclosed.
17
Such opinion shall also include a statement of such counsel that nothing
has come to their attention to cause them to believe that (except for (i) the
financial statements, and (ii) matters set forth under the caption
"Underwriting" as to which such counsel need not express any belief) the
Registration Statement and the Prospectus included therein at the time the
Registration Statement became effective contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus, as amended or supplemented, if applicable, contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
In rendering the foregoing opinion, such counsel may rely, as to any
matters of fact upon which such opinion is predicated, on certificates and
written statements of state officials and certificates and written statements of
officers and representatives of the Company and other responsible persons, in
each case to the extent deemed appropriate by such counsel. Copies of all such
certificates shall be furnished to counsel for the Underwriter on the Closing
Date. Such counsel may also rely, as to matters involving the laws of any
jurisdictions other than the States of Delaware or New York or the United States
of America, upon opinions of local counsel whom they believe to be reliable and
who are satisfactory to Underwriter's Counsel. The opinion of such counsel for
the Company shall state that the opinion of any such other counsel (whose
opinion shall be annexed to Company counsel's opinion) is in form satisfactory
to such counsel and, in their opinion, the Underwriter is justified in relying
thereon.
(f) At the time this Agreement is executed and at the Closing Date and the
Option Closing Date, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company, LLP shall have furnished to
the Underwriter letters dated respectively as of the date of this Agreement and
as of the Closing Date and Option Closing Date in form and substance
satisfactory to the Underwriter, confirming that they are independent public
accountants within the meaning of the Act and the Rules under the Act, and
stating in effect that:
(i) in their opinion, the audited consolidated financial statements
and related financial statement schedules examined by them included or
incorporated by reference in the Registration Statement comply as to form
in all material respects with the applicable accounting requirements of the
Act and the Rules under the Act;
(ii) on the basis of a reading of and a review of as set forth above
of the latest available interim consolidated financial statements of the
Company subsequent to the date of their audit, inspection of the minute
books of the Company since the date of audit and consultations with and
inquiries of officers or other persons responsible for financial and
accounting matters of the Company as to transactions and events since
September 30, 1996 nothing has come to their attention which would cause
them to believe that during the period from September 30, 1996 to a
specified date not more than three business days prior to the date of this
Agreement and each of the Closing Date and Option Closing Date,
respectively, there has been any change in the capital stock or
consolidated long term debt of the Company, or decreases in consolidated
net current assets or net assets
18
compared with the amounts shown in the September 30, 1996 audited
consolidated balance sheet included in the Registration Statement, except
in all instances as set forth in or contemplated by the Registration
Statement; and
(iii) in addition to their examinations referred to in their report
included in the Prospectus and the procedures, consultations and inquiries
referred to above, they have carried out certain specified procedures, not
constituting an audit, with respect to certain dollar amounts, numbers of
shares and percentages, which are derived from the accounting records of
the Company and are subject to the internal controls of the Company's
accounting system, and which appear in the Prospectus under the captions
"Prospectus Summary," "Summary Financial Information," "Risk Factors," "Use
of Proceeds," "Capitalization," "Selected Financial Data," "Management's
Discussion and Analysis of Financial Condition and Results of Operations,"
"Business," "Management - Executive Compensation," "Principal
Stockholders," "Certain Transactions" and "Concurrent Sales by Selling
Stockholders," and they have compared such dollar amounts, number of
shares, and percentages with such accounting records, and have found them
to be in agreement therewith;
(g) The Underwriter shall have received on the Closing Date and Option
Closing Date certificates, dated as of the Closing Date and the Option Closing
Date signed by the Chairman of the Board and the President of the Company
certifying that:
(i) No stop order suspending the effectiveness of the Registration
Statement is in effect and no proceedings for such purpose are pending or
are, to their knowledge, threatened by the Commission;
(ii) They do not know of any litigation instituted or threatened
against the Company or any Subsidiary of a character required to be
disclosed in the Registration Statement which is not disclosed therein;
they do not know of any contracts which are required to be summarized in
the Prospectus which are not so summarized; and they do not know of any
material contracts required to be filed as exhibits to the Registration
Statement which are not so filed;
(iii) Neither the Registration Statement nor the Prospectus as amended
or supplemented, if amended or supplemented, contains an untrue statement
of any 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, to the best of their knowledge, there has occurred
no event required to be set forth in an amended or supplemented Prospectus
which has not been so set forth;
(iv) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change in the condition of the Company or any Subsidiary,
financial or otherwise, or in the results of its operations, except as
reflected in or contemplated by the Registration
19
Statement and the Prospectus, and except as so reflected or contemplated
since such date there has not been any material transaction entered into by
the Company or any Subsidiary;
(v) Neither the Company nor any Subsidiary is delinquent in the filing
of any federal, state and municipal or other jurisdiction (domestic or
foreign) tax return or in the payment of any federal, state or municipal or
other jurisdiction (domestic or foreign) taxes; they know of no proposed
redetermination or re-assessment of taxes, adverse to the Company and its
Subsidiaries; and the Company and each of its Subsidiaries has paid or
provided by adequate reserves for all known tax liabilities;
(vi) They know of no material obligation or liability of the Company
or any of its Subsidiaries, contingent or otherwise, not disclosed in the
Registration Statement and Prospectus;
(vii) This Agreement, the consummation of the transactions herein
contemplated, and the fulfillment of the terms hereof, will not result in a
material breach by the Company or any Subsidiary of any terms of, or
constitute a material default under, the Company's Certificate of
Incorporation or By-Laws, or any material indenture, mortgage, lease, deed
of trust, bank loan or credit agreement or any other agreement or
undertaking of the Company or any Subsidiary;
(viii) The financial statements and schedules filed with and as part
of the Registration Statement present fairly the financial position of the
Company and its Subsidiaries as of the dates thereof, all in conformity
with generally accepted principles of accounting applied on a consistent
basis throughout the periods involved;
(ix) Except as otherwise set forth in the Registration Statement and
the Prospectus, all material licenses, approvals or permits from Federal,
state, local and/or foreign governmental agencies having jurisdiction over
the Company and its Subsidiaries required for the conduct or any material
aspect of the business or operations of the Company and its Subsidiaries
have been obtained and are outstanding and there are no proceedings pending
or to their knowledge, threatened, to seek to compel, terminate or limit
such licenses, approvals or permits;
(x) Neither the Company nor any Subsidiary has sustained an insured or
uninsured loss on account of fire, flood, accident or other calamity;
(xi) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, except as may otherwise
be referred to therein, neither the Company nor any Subsidiary has prior to
the Closing Date, either (i) issued any securities or incurred any
liability or obligation, direct or contingent, for borrowed money, (ii)
entered into any material transaction other than in the ordinary course of
20
business, or (iii) declared, paid or made any dividend or distribution of
any kind on its capital stock;
(xii) All representations and warranties set forth in this Agreement
are true and correct as of the date hereof and the Company has complied
with all of its agreements herein contained to be performed on its part on
or before the Closing Date; and
(xiii) No order suspending the sale of the Shares prior to the Closing
Date in any jurisdiction designated to the Company pursuant to Paragraph
6(k) hereof has been issued on or prior to the Closing Date and no
proceedings for that purpose have been instituted or, to the knowledge of
such officers, shall have been or shall be threatened.
(h) The Company shall have performed each of the agreements herein
contained and required to be performed by it at or prior to the Closing Date.
The Company shall have furnished to the Underwriter such other and further
certificates, documents, and opinions as the Underwriter may reasonably request
(including certificates of officers) as to the accuracy, at and as of the
Closing Date and the Option Closing Date, of the representations and warranties
of the Company herein, as to the performance by the Company of its obligations
hereunder, and as to other conditions concurrent and precedent to the
Underwriter's obligations hereunder.
Any certificate signed by an officer of the Company and delivered to the
Underwriter or its counsel will also be deemed a representation and warranty by
the Company to the Underwriter as to the statements made therein.
If any of the conditions specified in this Paragraph 7 shall not have been
fulfilled when and as required by this Agreement, or if any of the certificates,
opinions, written statements or letters furnished to the Underwriter or to its
counsel pursuant to this Paragraph 7 shall not be in all material respects
reasonably satisfactory in form, and substance to the Underwriter and to its
counsel, this Agreement and all obligations of the Underwriter hereunder may be
cancelled at, or at any time prior to, the consummation of the Closing by the
Underwriter. Notice of such cancellation shall be given to the Company in
writing, or by telegraph confirmed in writing.
8. INDEMNIFICATION. (a) The Company agrees to indemnify and hold harmless
the Underwriter, its officers, directors, employees and agents and each person,
if any who controls the Underwriter within the meaning of Section 15 of the Act
or Section 20(a) of the Exchange Act (the "Exchange Act"), against any all loss,
liability, claim, damage and expense whatsoever (including but not limited to
attorneys' fees and any and all expense whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever) caused by any untrue or alleged untrue
statement of a material fact contained (i) in any Preliminary Prospectus, the
Registration Statement or the Prospectus (as from time to time amended or
supplemented) or (ii) in any application or other document or communication (in
this Paragraph 8 collectively called "application") executed by or on behalf
21
of the Company or based upon written information furnished by or on behalf of
the Company filed in any jurisdiction in order to qualify the Shares or the
Underwriter's Warrants or the underlying securities thereof under the securities
laws thereof or filed with the Commission or any securities exchange; or the
omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, unless such
statement or omission was made in reliance upon and in conformity with written
information furnished to the Company by the Underwriter expressly for use in any
Preliminary Prospectus, the Registration Statement or Prospectus, or any
amendment or supplement thereof or in any communication to the Commission, any
jurisdiction or any securities exchange, as the case may be.
If any action is commenced against the Underwriter or any of its officers,
directors, employees, agents or controlling persons (an indemnified party) in
respect of which indemnity may be sought against the Company pursuant to the
foregoing paragraph, such indemnified party or parties shall promptly notify the
indemnifying party in writing of the commencement of such action and the
indemnifying party shall assume the defense of such action, including the
employment of counsel (satisfactory to such indemnified party or parties) and
payment of expenses. Such indemnified party or parties shall have the right to
employ its or their own counsel in any such case but the fees and expenses of
such counsel shall be borne by such indemnified party or parties unless the
employment of such counsel shall have been authorized in writing by the
indemnifying party in connection with the defense of such action or the
indemnifying party shall not have employed counsel to take charge of the defense
of such indemnified party or parties or such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to the indemnifying
party (in which case the indemnifying party 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
party. Anything in this paragraph to the contrary notwithstanding, the Company
shall not be liable for any settlement of any such claim or action effected
without its written consent. The Company agrees promptly to notify the
Underwriter of the commencement of any litigation or proceeding against the
Company or any of its officers or directors in connection with the sale of the
Shares or in connection with such Registration Statement or Prospectus. With
respect to any untrue statement or alleged untrue statement made in, or omission
or alleged omission from, any Preliminary Prospectus, the indemnity agreement
contained in this Paragraph 8 (a) with respect to such Preliminary Prospectus
shall not inure to the benefit of the Underwriter from whom the person asserting
the claim with respect to which such indemnification is sought hereunder
purchased Shares if the Prospectus (or the Prospectus as amended or supplemented
if the Company shall have made any amendments thereof or supplements thereto
which shall have been furnished to such underwriter prior to the time of the
confirmation of such sale) does not contain such statement, alleged statement,
omission or alleged omission and a copy of such Prospectus shall not have been
sent or given to such person at or prior to the written confirmation of such
sale to such person.
(b) The Underwriter agrees to indemnify and hold harmless the Company,
each of the directors of the Company, each of the officers of the Company who
shall have signed the
22
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, to the same extent as the foregoing indemnity from the Company to the
Underwriter, but only with respect to statements or omissions if any, made, in
any preliminary prospectus, the Registration Statement or Prospectus or any
amendment or supplement thereof or in any application in reliance upon and in
conformity with, written information furnished to the Company with respect to
the Underwriter by or on behalf of such Underwriter expressly for use in any
preliminary prospectus, the Registration Statement or Prospectus or any
amendment or supplement thereof or in any application, as the case may be. The
statements set forth in the last paragraph of the cover page and under the
caption "Underwriting" in the Prospectus constitute the only information
furnished in writing by or on behalf of the Underwriter expressly for use in any
preliminary prospectus, the Registration Statement or the Prospectus, as the
case may be. In case any action shall be brought against the Company, or any
other person so indemnified based on any preliminary prospectus, the
Registration Statement or Prospectus or any amendment or supplement thereof or
any application, and in respect of which indemnity may be sought against the
Underwriter, such Underwriter shall have the rights and duties given to the
Company, and the Company, and each other person so indemnified shall have the
rights and duties given to the Underwriter by the provisions of subsection (a)
above.
9. CONTRIBUTION. (a) In order to provide for just and equitable
contribution under the Act in any case in which (i) a party to this Agreement,
its officers, directors, employees and agents and each person who controls the
party within the meaning of the Act or the Exchange Act makes claim for
indemnification pursuant to Paragraph 8 hereof but it is judicially determined
(by the entry of a final judgment or decree by a court of competent jurisdiction
and the expiration of time to appeal or the denial of the last right of appeal)
that such indemnification may not -be enforced in such case notwithstanding the
fact that Paragraph 8 provides for indemnification in such case or (ii)
contribution under the Act may be required on the part of the Underwriter or any
such controlling person in circumstances for which indemnification is provided
under Paragraph 8, then, in each such case, the Company and the Underwriter
shall contribute to the aggregate losses, claims, damages or liabilities to
which they may be subject (after contribution from others) in such proportion so
that the Underwriter is responsible for an aggregate of 13% (being the
percentage of the initial public offering price of the Shares represented by
such Underwriter's commission and discount) and the Company is responsible for
the remaining portion; provided, however, that, in any such case, no person
guilty of a 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.
(b) Promptly after receipt by any party to this Agreement of notice of the
commencement of any action, suit or proceeding, such party will, if a claim for
contribution in respect thereof is to be made against another party
("contributing party"), notify the contributing party of the commencement
thereof; but the omission to so notify the contributing party will not relieve
it from any liability which it may have to any other party other than for
contribution under the Act. In case any such action, suit or proceeding is
brought against any party, and such party notifies a contributing party of the
commencement thereof, the contributing party will be
23
entitled to participate in the defense thereof with the notifying party and any
other contributing party similarly notified.
10. TERMINATION. (a) This Agreement shall become effective at 9:30 A.M.,
New York time, on the first full business day following the day on which the
Registration statement becomes effective or at the time of the initial public
offering by the Underwriter of, the Shares, whichever is earlier. The time of
the initial public offering, for the purpose of this Paragraph 10, shall mean
the time, after the Registration Statement becomes effective, of the release by
the Underwriter for publication of the first newspaper advertisement which is
subsequently published relating to the Shares or the time, after the
Registration Statement becomes effective, when the Shares are first released by
the Underwriter for offering by the Underwriter or Selected Dealers by letter or
telegram, whichever shall first occur. The Underwriter, or the Company may
prevent this Agreement from becoming effective by giving the notice indicated
below in this Paragraph 10 before the time this Agreement becomes effective.
(b) In addition to the provisions of Paragraph 7 and 10 hereof, this
Agreement shall be subject to termination in the absolute discretion of the
Underwriter, by notice given to the Company prior to the Closing Date and the
Option Closing Date, if prior to such time, (i) the Company or any Subsidiary
sustains a material loss, whether or not insured, by reason of fire, flood,
accident or other calamity, which, in the opinion of the Underwriter,
substantially affects the value of the property of, or materially interferes
with the operation of the business of the Company and the Subsidiaries, taken as
a whole, (ii)trading in securities on the New York Stock Exchange, Inc. or the
American Stock Exchange, Inc. has been suspended or limited or minimum prices
have been established on either such exchange other than normal limitations,
(iii) a banking moratorium shall have been declared, either by Federal or state
authorities, (iv) any new enactment, publication decree, other promulgation, or
other restriction of or imposed by any federal, state, regulatory or self
regulatory body or order of any court or any other governmental authority
whether United States or foreign which in the judgment of the Underwriter
materially adversely affects the business or operations of the Company and the
Subsidiaries taken as a whole, or materially adversely affects the distribution
of the Shares shall have become effective, (v) trading in any securities of the
Company shall have been suspended or halted by any national securities exchange
or the Commission, (vi) the market value of securities in general or political
financial or economic conditions shall have so materially changed as, in the
judgment of the Underwriter, shall render it impracticable to offer for sale or
to enforce contracts made by the Underwriter for the resale of the Shares agreed
to be purchased hereunder, (vii) in the reasonable opinion of the Underwriter,
there exists materially adverse market conditions in the over-the-counter market
as in the judgment of the Underwriter, makes it unadvisable to proceed with the
delivery of the Shares or (viii) in the sole discretion of the Underwriter, any
material adverse change has occurred since the dates as of which information is
given in the Registration Statement or Prospectus, in the earnings, business,
condition of the Company or any Subsidiary (financial or otherwise) net worth,
results of operations, key personnel or assets of the Company or any Subsidiary,
whether or not arising in the ordinary course of business; provided, however,
that the provisions of Paragraphs 6(m), 8 and 9 hereof shall survive such
termination. However, in the event that the offering is terminated hereunder,
for any reason in the willful control of the
24
Company, the Company shall be responsible for the payment to the Underwriter, of
its actual accountable out-of-pocket expenses in lieu of the non-accountable
expense allowance in Section 6(n) hereof.
(c) If the Underwriter elects to prevent this Agreement from becoming
effective or to terminate this Agreement as provided in this Paragraph 10, the
Company shall be notified promptly by the Underwriter by telephone or telegram,
confirmed by letter. If the Company elects to prevent this Agreement from
becoming effective the Underwriter shall be notified promptly by the Company by
telephone or telegram, confirmed by letter.
11. UNDERWRITER'S WARRANTS. The Company agrees to sell to the
Underwriter, its officers and/or any underwriter or its officers, and partners
which participate in the public distribution of the Shares at the Closing Date,
an aggregate of 165,000 Underwriter's Warrants at a price of $.0001 per
Underwriter's Warrant. Each Underwriter's Warrant shall represent the right to
purchase one Warrant Share during the four year period commencing one year from
the effective date of the Registration Statement and ending five years after the
effective date, at $_.__ per Warrant Share.
The Underwriter's Warrants shall be evidenced by certificates in the form
and contain the terms and conditions as set forth in the exhibit to the
Registration Statement. The Underwriter's Warrant certificates shall be
delivered in such denominations and in such names as may be requested by the
Underwriter or in the absence of such request, then in denominations of 10,000
or greater Share certificates, registered in the name of the Underwriter. In
addition, the Company agrees to reserve against the exercise of the
Underwriters' Warrants the number of shares of its authorized but unissued
shares of Common Stock equal to the number of shares purchasable upon the
exercise of the Underwriter's Warrants. The certificates representing the
Underwriter's Warrants shall contain typical anti-dilution provisions. The
Underwriter's Warrants will not be redeemable by the Company.
12. FINDERS. (a) The Company knows of no claims for services in the nature
of a finder's fee or origination fee with respect to this financing resulting
from the respective acts of its officers, directors or employees, or any other
party acting in its behalf, for which the Underwriter may be responsible, and
the Company, agrees to indemnify and hold the Underwriter free and harmless from
any claims for any services of such nature arising from any act of the Company
or its officers, directors, employees, or any such other person acting in its
behalf, and will reimburse the Underwriter for any counsel fees, legal or other
expenses reasonably incurred by the Underwriter in investigating or defending
against any such claim.
(b) The Underwriter knows of no claims for services in the nature of a
finder's fee or origination fee with respect to this financing resulting from
the respective acts of its officers, directors, or employees, or any other party
acting in its behalf for which the Company may be responsible, and the
Underwriter agrees to indemnify and hold the Company free and harmless from any
claims for any services of such nature arising from any act of such Underwriter
or its officers, directors or employees, or any such other person acting in its
behalf and will reimburse
25
the Company for any legal or other expenses reasonably incurred by the Company
in investigating or defending against any such claim.
13. REPRESENTATIONS, ETC. TO SURVIVE DELIVERY. The respective
representations, warranties, agreements, covenants, indemnities and statements
of, and on behalf of, the Company and its officers, and the Underwriter,
respectively, set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
the Underwriter, and will survive delivery of and payment for the Shares. Any
successor to the Underwriter shall be entitled to the indemnity, contribution
and reimbursement agreements contained in this Agreement.
14. BENEFIT. This Agreement has been and is made solely for the benefit
of and shall be binding upon the Underwriter, the Company and, to the extent
expressed, any person controlling the Company, the Underwriter and the officers
and directors of the Company and the Underwriter, and their respective legal
representatives, successors and assigns, all as and to the extent provided
herein, and no other person shall acquire or have any right under or by virtue
of this Agreement. The term "legal representatives, successors and assigns"
shall not include any purchaser of any of the Shares from the Underwriter merely
because of such purchase, and except further that in the event that any of the
persons who shall have purchased any of the Underwriter's Warrants hereof which
are registered in the Registration Statement shall be alleged to be or held to
be, an Underwriter, as that term is defined in the Act, with respect to any part
of any of the securities registered in the Registration Statement; then and in
such event the warranties, indemnities and agreement of the Company contained in
this Agreement shall also be for the benefit of any person or persons, if any,
who control such persons within the meaning of Section 15 of the Act.
15. NEW YORK LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflict of laws.
16. NOTICES. All communications hereunder shall be in writing and, if to
the Underwriter, will be mailed, delivered, telegraphed or telexed to Americorp
Securities, Inc., ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇, Senior Vice President; or if sent to the Company will be mailed,
delivered, telegraphed or telexed to Nouveau International, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., President.
Copies of such notice should also be sent to counsel to such parties named in
the Prospectus.
26
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement, among the
Company and the several Underwriters.
Very truly yours,
NOUVEAU INTERNATIONAL, INC.
(the "Company")
By________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written by
AMERICORP SECURITIES, INC.
AMERICORP SECURITIES, INC.
(the "Underwriter")
By:_________________________
▇▇▇▇▇ ▇▇▇▇▇▇
Senior Vice President
27
SCHEDULE I
NAME DATE "LOCK-UP" EXPIRES
