1
Exhibit 1.1
[ ] Shares
SEEC, INC.
Common Stock
UNDERWRITING AGREEMENT
October __, 1997
UBS Securities LLC
X.X. Xxxxxxxxxx & Co., Inc.
Cruttenden Xxxx Incorporated
As Representatives of the Several Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
SEEC, Inc., a Pennsylvania corporation (the "Company"),
proposes to issue and sell [ ] shares (the "Company Shares") of its authorized
but unissued common stock, $.01 par value per share (the "Common Stock"), to
the several underwriters listed on Schedule A to this Agreement (collectively,
the "Underwriters"). In addition, certain shareholders of the Company listed on
Schedule B to this Agreement (each a "Selling Shareholder" and collectively the
"Selling Shareholders"), propose to sell an aggregate of [ ] shares of the
Company's authorized and outstanding Common Stock to the Underwriters (the
"Selling Shareholder Shares") The Company Shares and the Selling Shareholder
Shares are hereinafter collectively referred to as the "Firm Shares." The
Selling Shareholders also propose to grant to the Underwriters an option to
purchase up to [ ] additional shares of the Company's Common Stock (the "Option
Shares") on the terms and for the purposes set forth in Section 3(c). The Firm
Shares and the Option Shares are hereinafter collectively referred to as the
"Shares."
The Company and the Selling Shareholders, acting severally
and not jointly, wish to confirm as follows their agreements with you (the
"Representatives") and the other Underwriters on whose behalf you are acting in
connection with the several purchases by the Underwriters of the Shares.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE PRINCIPAL
SELLING SHAREHOLDERS. The Company and [ ] and [ ] (each a "Principal Selling
Shareholder" and collectively the "Principal Selling Shareholders") hereby
represent and warrant as follows:
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(A) A registration statement on Form S-1 (File No. 333-[ ])
including a prospectus relating to the Shares, and each amendment thereto, has
been prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), and the rules and regulations
(the "Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, and has been filed with the Commission. Copies of
such registration statement and amendments and of the related preliminary
prospectus have been delivered to you in such reasonable quantities as you have
requested for each of the Underwriters. If such registration statement has not
become effective, a further amendment to such registration statement, including
a form of final prospectus, necessary to permit such registration statement to
become effective will be filed promptly by the Company with the Commission. If
such registration statement has become effective, a final prospectus containing
all Rule 430A Information (as hereinafter defined) will be filed by the Company
with the Commission in accordance with Rule 424(b) of the Rules and Regulations
on or before the second business day after the date hereof (or such earlier
time as may be required by the Rules and Regulations).
The term "Registration Statement" as used in this Agreement
shall mean such registration statement (including all exhibits, schedules and
financial statements and all documents incorporated by reference therein at the
time such registration statement becomes or became effective) and, in the event
any post-effective amendment thereto becomes effective prior to the Closing
Date (as hereinafter defined), shall also mean such registration statement as
so amended; provided, however, that such term shall include all Rule 430A
Information deemed to be included in such registration statement at the time
such registration statement becomes effective as provided by Rule 430A of the
Rules and Regulations and shall also mean any registration statement filed
pursuant to Rule 462(b) of the Rules and Regulations with respect to the
Shares. The term "Preliminary Prospectus" shall mean any preliminary
prospectus referred to in the preceding paragraph and any preliminary
prospectus included in the Registration Statement at the time it becomes
effective that omits Rule 430A Information. The term "Prospectus" as used in
this Agreement shall mean the prospectus relating to the Shares in the form in
which it is first filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations or, if no filing pursuant to Rule 424(b) of the Rules and
Regulations is required, shall mean the form of final prospectus included in
the Registration Statement at the time such registration statement becomes
effective. The term "Rule 430A Information" means information with respect to
the Shares and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A of the
Rules and Regulations. The term "Offering Memorandum" as used in this Agreement
shall mean the Offering Memorandum consisting of the Prospectus and a Canadian
wrap-around used in connection with the offering of the Shares in Canada.
(B) The Commission has not issued any stop order suspending
the effectiveness of the Registration Statement or any order preventing or
suspending the use of any Preliminary Prospectus, or instituted proceedings for
that purpose, and each Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act and the Rules
and Regulations and, as of its date, did not include 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. When the Registration Statement became or becomes, as the
case may be, effective (the "Effective Date") and at all times subsequent
thereto up to and at the Closing Date, any later date on which Option Shares
are to be purchased (the "Option Closing Date") and when any post-effective
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amendment to the Registration Statement becomes effective or any amendment or
supplement to the Prospectus is filed with the Commission, (i) the Registration
Statement and Prospectus, and any amendments or supplements thereto, contained
and will contain all material information required to be included therein by,
and will comply with the requirements of, the Act and the Rules and
Regulations, and (ii) neither the Registration Statement nor the Prospectus,
nor any amendment or supplement thereto, will include 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. The foregoing
representations and warranties in this section 1(b) do not apply to any
statements or omissions made in reliance on and in conformity with the
information contained in the [FIRST, THIRD, FIFTH, SEVENTH, EIGHTH OR NINTH]
paragraphs of the section of the Prospectus entitled "Underwriting" and the
information in the last paragraph on the front cover page of the Prospectus.
The Company has not distributed any offering material in connection with the
offering or sale of the Shares other than the Registration Statement, the
Preliminary Prospectus, the Prospectus, the Offering Memorandum or any other
materials, if any, permitted by the Act and applicable Canadian securities
laws.
(C) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the Commonwealth
of Pennsylvania, with full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement. The Company is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its business requires
such qualification, except where the failure to so qualify would not have a
material adverse effect on the business, business prospects, properties,
financial condition or results of operations of the Company (a "Material
Adverse Effect"). The Company has no subsidiaries (as defined in the Rules and
Regulations) and, except as set forth in the Registration Statement, does not
own, 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. Complete and
correct copies of the certificate of incorporation and of the bylaws of the
Company and all amendments thereto have been delivered to the Representatives,
and except as set forth in the exhibits to the Registration Statement, no
changes therein will be made subsequent to the date hereof and prior to the
Closing Date or, if later, the Option Closing Date.
(D) The Company has full power and authority (corporate and
otherwise) to enter into this Agreement and to perform the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement on the part of
the Company, enforceable against the Company in accordance with its terms,
except as rights to indemnity and contribution hereunder may be limited by
applicable laws or equitable principles and except as enforcement hereof may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles. The performance of this Agreement by the Company and the
consummation by the Company of the transactions herein contemplated will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, (i) any indenture, mortgage, deed of trust, loan
agreement, bond, debenture, note agreement or other evidence of indebtedness,
or any lease, contract or other agreement or instrument to which the Company is
a party or by which its properties are bound, or (ii) the certificate of
incorporation or bylaws of the Company or (iii) any law, order, rule,
regulation, writ, injunction,
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judgment or decree of any court or governmental agency or body to which the
Company is subject. The Company is not required to obtain or make (as the case
may be) any consent, approval, authorization, order, designation or declaration
of or filing by or with any court or regulatory, administrative or other
governmental agency or body as a requirement for the consummation by the
Company of the transactions herein contemplated, except such as may be required
under the Act, the Securities Exchange Act of 1934, as amended (the "Exchange
Act") or under state securities or blue sky ("Blue Sky") laws or under the
rules and regulations of the National Association of Securities Dealers, Inc.
(the "NASD") or under applicable Canadian securities law.
(E) The Company is not (i) in violation of its certificate of
incorporation or bylaws, or (ii) in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any bond,
debenture, note or other evidence of indebtedness, which default would have a
Material Adverse Effect, or (iii) in default in the performance or observance
of any contract, indenture, mortgage, loan agreement, joint venture or other
agreement or instrument to which it is a party or by which it or any of its
properties are bound, which default would have a Material Adverse Effect, or
(iv) in violation of any law, order, rule, regulation, writ, injunction,
judgment or decree of any court or governmental agency or body to which the
Company is subject.
(F) Except as disclosed in the Prospectus, there is not
pending or, to the best of the Company's knowledge, threatened, any action,
suit, claim, proceeding or investigation against the Company or any of its
officers or any of its properties, assets or rights before any court or
governmental agency or body or otherwise which might result in a Material
Adverse Effect or prevent consummation of the transactions contemplated hereby.
There are no statutes, rules, regulations, agreements, contracts, leases or
documents that are required to be described in the Prospectus, or to be filed
as exhibits to the Registration Statement by the Act or by the Rules and
Regulations that have not been accurately described in all material respects in
the Prospectus or filed as exhibits to the Registration Statement.
(G) All outstanding shares of capital stock of the Company
(including the Selling Shareholder Shares and the Option Shares) 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 or subject to any preemptive right, resale right, right
of first refusal or similar right. The authorized and outstanding capital stock
of the Company conforms in all material respects to the description thereof
contained in the Registration Statement, the Offering Memorandum and the
Prospectus (and such description correctly states the substance of the
provisions of the instruments defining the capital stock of the Company). The
Company Shares have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered by the
Company against payment therefor in accordance with the terms of this
Agreement, will be duly and validly issued and fully paid and nonassessable and
will be sold free and clear of any pledge, lien, security interest, charge,
encumbrance, claim, equitable interest, or restriction. Except as set forth in
the Prospectus, no preemptive right, co-sale right, registration right, right
of first refusal or other similar rights of securityholders exists with respect
to any of the Shares or the issue and sale thereof other than those that have
been expressly waived prior to the date hereof. No holder of securities of the
Company has the right to cause the Company to include such holder's securities
in the Registration Statement. No further approval or authorization of any
securityholder, the Board of Directors or any duly appointed
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committee thereof or others is required for the issuance and sale or transfer
of the Shares, except as may be required under the Act, the Exchange Act, Blue
Sky laws or under applicable Canadian securities laws. Except as disclosed in
or contemplated by the Prospectus, the Offering Memorandum and the financial
statements of the Company, and the related notes thereto, included in the
Prospectus and the Offering Memorandum, the Company does not have outstanding
any options or warrants to purchase, or any preemptive rights or other rights
to subscribe for or to purchase, any securities or obligations convertible
into, or any contracts or commitments to issue or sell, shares of its capital
stock or any such options, rights, convertible securities or obligations. The
description of the Company's stock option and other plans or arrangements, and
the options or other rights granted and exercised thereunder, set forth in the
Prospectus and the Offering Memorandum accurately and fairly presents, in all
material respects, the information required to be shown with respect to such
plans, arrangements, options and rights.
(H) BDO Xxxxxxx, LLP, independent public accountants (the
"Accountants"), who have examined the financial statements of the Company,
together with the related schedules and notes, of the Company filed with the
Commission as a part of the Registration Statement, which are included in the
Prospectus, are independent public accountants within the meaning of the Act
and the Rules and Regulations. The financial statements of the Company,
together with the related schedules and notes, forming part of the Registration
Statement, the Offering Memorandum and the Prospectus, fairly present the
financial position and the results of operations of the Company at the
respective dates and for the respective periods to which they apply. All
financial statements, together with the related schedules and notes, filed with
the Commission as part of the Registration Statement have been prepared in
accordance with generally accepted accounting principles as in effect in the
United States consistently applied throughout the periods involved ("GAAP")
except as may be otherwise stated in the Registration Statement. The selected
and summary financial data included in the Registration Statement, the Offering
Memorandum and the Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with the financial statements
presented therein. No other financial statements or schedules are required by
the Act or the Rules and Regulations to be included in the Registration
Statement. The statistical data included in the Registration Statement and the
Offering Memorandum is accurate in all material respects and presents fairly
the information shown therein.
(I) Subsequent to the respective dates as of which
information is given in the Registration Statement, the Offering Memorandum and
the Prospectus, there has not been (i) any material adverse change in the
business, properties or assets described or referred to in the Registration
Statement, or the results of operations, condition (financial or otherwise),
business or operations of the Company, or any development which is likely to
cause a Material Adverse Effect, (ii) any transaction which is material to the
Company, except transactions in the ordinary course of business, (iii) any
obligation, direct or contingent, which is material to the Company, incurred by
the Company, except obligations incurred in the ordinary course of business,
(iv) any change in the capital stock or outstanding indebtedness of the Company
or (v) any dividend or distribution of any kind declared, paid or made on the
capital stock of the Company. The Company has no material contingent obligation
which is not disclosed in the Registration Statement. Except as set forth in
the Registration Statement, the Offering Memorandum and Prospectus, the Company
owns or leases all such properties as are necessary to its operations as now
conducted or as proposed to be conducted in the foreseeable future.
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(J) Except as set forth in the Prospectus and the Offering
Memorandum, (i) the Company has good and marketable title to all material
properties and assets described in the Prospectus and the Offering Memorandum
as owned by it, free and clear of any pledge, lien, security interest, charge,
encumbrance, claim, equitable interest, or restriction, (ii) the agreements to
which the Company is a party are valid agreements, enforceable by and against
the Company in accordance with their terms, except as enforcement may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally or by
general equitable principles, 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 agreements and (iii) the Company has valid and
enforceable leases for the properties described in the Prospectus and the
Offering Memorandum as leased by it, and such leases conform in all material
respects to the description thereof, if any, set forth in the Registration
Statement.
(K) The Company now holds and at the Closing Date and any
later Option Closing Date, as the case may be, will hold, all licenses,
consents, certificates, orders, approvals and permits from all state, United
States, foreign and other regulatory authorities, that are material to the
conduct of the business of the Company (as such business is currently
conducted), all of which 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 license, consent, certificate, order, approval or
permit to be withdrawn, cancelled, suspended or not renewed).
(L) The Company has filed on a timely basis all necessary
federal, state and foreign income, franchise and other tax returns and has paid
all taxes shown thereon as due, and the Company has no knowledge of any tax
deficiency which has been or might be asserted against the Company which might
have a Material Adverse Effect. All tax liabilities are adequately provided for
within the financial statements of the Company.
(M) The Company maintains insurance with insurers of
recognized financial responsibility of the types and in the amounts adequate
for its business and consistent with insurance coverage maintained by similar
companies in similar businesses, including, but not limited to, insurance
covering product liability and real and personal property owned or leased
against theft, damage, destruction, acts of vandalism and all other risks
customarily insured against, all of which insurance is in full force and effect.
(N) The Company is not involved in any labor dispute or
disturbance nor, to the best knowledge of the Company, is any such dispute or
disturbance threatened. No collective bargaining agreement exists with any of
the Company's employees and, to the best knowledge of the Company, no such
agreement is imminent.
(O) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific
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authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(P) Except as set forth in the Prospectus and the Offering
Memorandum, (i) the Company owns or possesses valid and enforceable licenses or
other rights to use all inventions, patents, patent applications, patent
rights, trademarks (registered or unregistered), trademark applications,
tradenames, service marks, service xxxx applications, copyrights, manufacturing
processes, formulae, trade secrets, know-how, franchises and other intangible
property and assets (collectively, "Intellectual Property") necessary to the
conduct of its business as currently conducted or proposed to be conducted as
described in the Prospectus and the Offering Memorandum; (ii) the Company has
no knowledge that it lacks or will be unable to obtain or retain any rights or
licenses to use any of the Intellectual Property necessary to conduct the
business now conducted or proposed to be conducted by it as described in the
Prospectus and the Offering Memorandum; (iii) the Company has no knowledge of
any third parties who have or will be able to establish rights to any of the
Intellectual Property, except for the ownership rights of the owners of the
Intellectual Property which is licensed to the Company; (iv) to the Company's
knowledge, there is no infringement by third parties of any of the Intellectual
Property; (v) there is no pending or, to the Company's knowledge, threatened
action, suit, proceeding or claim by others challenging the Company's rights of
title or other interest in or to any Intellectual Property, and the Company is
unaware of any facts which would form a reasonable basis for any such claim;
(vi) there is no pending or, to the Company's knowledge, threatened action,
suit, proceeding or claim by others challenging the validity or scope of any
Intellectual Property, and the Company is unaware of any facts which would form
a reasonable basis for any such claim; (vii) there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by others
that the Company or its products or processes infringe or otherwise violate any
patent, trademark, copyright, trade secret or other proprietary right of
others, and the Company is unaware of any facts which would form a reasonable
basis for any such claim; and (viii) there is no pending or, to the Company's
knowledge, threatened action, suit, proceeding or claim by any current or
former employee, consultant or agent of the Company seeking either ownership
rights to any invention or compensation from the Company for any invention made
by such employee, consultant or agent in the course of his/her employment with
the Company, nor, to the Company's knowledge, can any such action, suit,
proceeding or claim, if instituted, be sustained. The Prospectus and the
Offering Memorandum fairly and accurately describe the Company's rights with
respect to the Intellectual Property.
(Q) The Company is conducting its business in compliance with
all of the laws, rules and regulations of the jurisdictions in which it is
conducting business, including, but not limited to, any laws, rules and
regulations applicable to the import and export of the Company's products.
(R) The Company is not, and, upon the issuance and sale of
the Shares and application of the net proceeds from such issuance and sale as
described in the Prospectus under the caption "Use of Proceeds" will not be, an
"investment company," or a "promoter" or "principal underwriter" for a
registered investment company, as such terms are defined in the Investment
Company Act of 1940, as amended.
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(S) 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 underwriting discounts and commissions contemplated hereby.
(T) The Company is (i) in compliance with any and all
applicable United States, foreign, state and local environmental laws, rules,
regulations, treaties, statutes and codes promulgated by any and all
governmental authorities relating to the protection of human health and safety,
the environment or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) has received all permits, licenses or other
approvals required of it under applicable Environmental Laws to conduct its
business as currently conducted, and (iii) is in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permit
licenses or other approvals would not, individually or in the aggregate, have a
Material Adverse Effect. No action, proceeding, revocation proceeding, writ,
injunction or claim is pending or threatened relating to the Environmental Laws
or to the Company's activities involving Hazardous Materials. "Hazardous
Materials" means any material or substance (i) that is prohibited or regulated
by any environmental law, rule, regulation, order, treaty, statute or code
promulgated by any governmental authority, or any amendment or modification
thereto, or (ii) that has been designated or regulated by any governmental
authority as radioactive, toxic, hazardous or otherwise a danger to health,
reproduction or the environment. The Company has not engaged in the generation,
use, manufacture, transportation or storage of any Hazardous Materials on any
of the Company's properties or former properties, except where such use,
manufacture, transportation or storage is in compliance with Environmental
Laws. No Hazardous Materials have been treated or disposed of on any of the
Company's properties or on properties formerly owned or leased by the Company
during the time of such ownership or lease, except in compliance with
Environmental Laws. No spills, discharges, releases, deposits, emplacements,
leaks or disposal of any Hazardous Materials have occurred on or under or have
emanated from any of the Company's properties or former properties during the
time of the Company's ownership or lease thereof and the Company is not aware
of any spills, discharges, releases, deposits, emplacements, leaks or disposal
of any Hazardous Materials that have occurred on or under or have emanated from
any of the Company's properties or former properties prior to the Company's
ownership or lease thereof.
(U) The Company has not engaged in the generation, use,
manufacture, transportation or storage of any Hazardous Materials on any of the
Company's properties or former properties, except where such use, manufacture,
transportation or storage has been in compliance with Environmental Laws.
(V) The Company has not at any time during the last five
years (i) made any unlawful contribution to any candidate for foreign office,
or failed to disclose fully any contribution in violation of law, or (ii) made
any payment to any foreign, United States or state governmental officer or
official, or other person charged with similar public of quasi-public duties,
other than payments required or permitted by the laws of the United States.
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(W) The Company has obtained agreements from each beneficial
owner of the Company's Common Stock listed on Schedule C to this Agreement
providing that such person will not, for a period of 90 days after the date of
the Prospectus, without the prior written consent of UBS Securities LLC,
directly or indirectly, offer, sell, solicit an offer to buy, make any short
sale, pledge, contract to sell, grant any option to purchase, or otherwise
dispose of or transfer, any shares of Common Stock beneficially owned as of the
date such lockup agreement is executed (including, without limitation, shares
of Common Stock which may be deemed to be beneficially owned in accordance with
the Rules and Regulations and shares of Common Stock which may be issued upon
exercise of a stock option or warrant) or any securities convertible into or
exercisable or exchangeable for, or any rights to purchase or acquire, shares
of Common Stock now owned or hereafter acquired directly by such beneficial
owner or with respect to which such beneficial owner has or acquired the power
of disposition, otherwise than by (a) as a distribution to partners or
shareholders of such beneficial owner, provided that the distributees thereof
agree in writing to be bound by the terms of this restriction or (b) pursuant
to a bona fide gift to any person or other entity which agrees in writing to be
bound by the terms of this restriction. Furthermore, such person or entity has
also agreed and consented to the entry of stop transfer instructions with the
Company's transfer agent against the transfer of shares of Common Stock held by
such person or entity, except in compliance with the foregoing restriction. 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 has provided to counsel for
the Underwriters true, accurate and complete copies of all of the agreements
pursuant to which its officers, directors and shareholders have agreed to such
or similar restrictions (the "Lock-up Agreements") presently in effect or
effected hereby. The Company hereby represents and warrants that it will not
release any of its officers, directors or other shareholders from any Lock-up
Agreements currently existing or hereafter effected without the prior written
consent of UBS Securities LLC.
(X) The Common Stock is registered pursuant to Section 12(g)
of the Exchange Act. The Shares have been duly authorized for quotation on The
Nasdaq Stock Market, Inc. Automated Quotation National Market System (the
"Nasdaq National Market"). The Company has taken no action designed to, or
likely to have the effect of, terminating the registration of the Common Stock
under the Exchange Act or delisting the Common Stock from the Nasdaq National
Market, nor has the Company received any notification that the Commission or
the Nasdaq National Market is contemplating terminating such registration or
listing.
(Y) Neither the Company nor, to its best knowledge, any of
its officers, directors or affiliates has taken, and at the Closing Date and at
any later Option Closing Date, neither the Company nor, to its best knowledge,
any of its officers, directors or affiliates will have taken, directly or
indirectly, any action which has constituted, or might reasonably be expected
to constitute, the stabilization or manipulation of the price of sale or resale
of the Shares.
(Z) The Company has timely and properly filed with the
Commission all reports and other documents required to have been filed by it
with the Commission pursuant to the Act, the Exchange Act and the Rules and
Regulations. True and complete copies of all such reports and other documents
have been delivered to you.
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(AA) The Company is in compliance with all provisions of
Florida Statutes Section 517.075 and the regulations thereunder, relating to
issuers doing business with Cuba.
(BB) 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 to or for the benefit of any of the
officers or directors of the Company or any of the members of the families of
any of them that are required to be disclosed in the Registration Statement,
the Offering Memorandum and the Prospectus that are not so disclosed. Except as
disclosed in Prospectus, there are no business relationships or related party
transactions required to be disclosed therein by Item 404 of Regulation S-K of
the Commission.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDERS. Each
Selling Shareholder, severally and not jointly, represents and warrants to and
agrees with each Underwriter and the Company that:
(A) Such Selling Shareholder now has and on the Closing Date
and the Option Closing Date, if applicable, will have valid marketable title to
the Shares to be sold by such Selling Shareholder, free and clear of any
pledge, lien, security interest, encumbrance, claim or equitable interest other
than pursuant to this Agreement; and upon delivery of such Shares hereunder and
payment of the purchase price as herein contemplated, each of the Underwriters
will obtain valid marketable title to the Shares purchased by it from such
Selling Shareholder, free and clear of any pledge, lien, security interest,
encumbrance, claim or equitable interest pertaining to such Selling Shareholder
or such Selling Shareholder's property, including any liability for estate or
inheritance taxes, or any liability to or claims of any creditor, devisee,
legatee or beneficiary of such Selling Shareholder.
(B) Such Selling Shareholder has duly authorized (if
applicable), executed and delivered, in the form heretofore furnished to the
Representatives, through Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, counsel for the
several Underwriters (the "Underwriters' Counsel"), an Irrevocable Power of
Attorney (the "Power of Attorney") appointing [ ] AND [ ] as
attorneys-in-fact with full power of substitution (collectively, the "Attorneys"
and individually, an "Attorney") and a Letter of Transmittal and Custody
Agreement (the "Custody Agreement") with [ ], as custodian (the
"Custodian"); each of the Power of Attorney and the Custody Agreement
constitutes a valid and binding agreement on the part of such Selling
Shareholder, enforceable in accordance with its terms, except as rights to
indemnification thereunder may be limited by applicable laws, equitable
principles or public policy and except as enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles; and each of such Selling Shareholder's Attorneys, acting
alone, is authorized to execute and deliver this Agreement and any certificates
deliverable on behalf of such Selling Shareholder pursuant to the terms of this
Agreement, to determine the purchase price to be paid by the several
Underwriters to such Selling Shareholder as provided in Section [ ] hereof, to
authorize the delivery of the Selling Shareholder Shares and any Option Shares
to be sold by such Selling Shareholder pursuant to the terms of this Agreement
and to duly endorse (in blank or otherwise) the certificate or certificates
representing such Shares or a stock power or powers with respect thereto, to
accept payment therefor, and otherwise to act on behalf of
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such Selling Shareholder in connection with the consummation of the
transactions contemplated by this Agreement.
(C) All consents, approvals, authorizations and orders
required for the execution and delivery by such Selling Shareholder of the
Power of Attorney and the Custody Agreement, the execution and delivery by or
on behalf of such Selling Shareholder of this Agreement and the sale and
delivery of the Selling Shareholder Shares and any Option Shares to be sold by
such Selling Shareholder under this Agreement (other than, at the time of the
execution hereof (if the Registration Statement has not yet been declared
effective by the Commission), the issuance of the order of the Commission
declaring the Registration Statement effective and such consents, approvals,
authorizations or orders as may be necessary under state or other securities or
Blue Sky laws) have been obtained and are in full force and effect; such
Selling Shareholder, if other than a natural person, has been duly organized
and is validly existing in good standing under the laws of the jurisdiction of
its organization as the type of entity that it purports to be; and such Selling
Shareholder has full legal right, power and authority to enter into and perform
its obligations under this Agreement and such Power of Attorney and Custody
Agreement, and to sell, assign, transfer and deliver the Shares to be sold by
such Selling Shareholder under this Agreement.
(D) Such Selling Shareholder will not, during the Lock-up
Period, effect the Disposition of any Common Stock now owned or hereafter
acquired by such Selling Shareholder or with respect to which such Selling
Shareholder has or hereafter acquires the power of disposition, otherwise than
(a) by operation of law, (b) pursuant to a bona fide gift to any person or
other entity which agrees in writing to be bound by this restriction, or (c)
with the prior written consent of UBS Securities LLC. The foregoing restriction
is expressly agreed to preclude the holder of the Common Stock from engaging in
any hedging, equity swap or other transaction which is designed to or
reasonably expected to lead to or result in a Disposition during the Lock-up
Period, even if such Common Stock would be disposed of by someone other than
the Selling Shareholder. Such prohibited hedging, equity swap, or other
transactions would including, without limitation, any short sale (whether or
not against the box), or any purchase, sale or grant of any right (including,
without limitation, any put or call option) with respect to any Common Stock or
with respect to any security (other than a broad-based market basket or index)
that includes, relates to or derives any significant part of its value from the
Common Stock. Such Selling Shareholder also agrees and consents to the entry
of stop transfer instructions with the Company's transfer agent against the
transfer of the securities held by such Selling Shareholder except in
compliance with this restriction.
(E) Certificates in negotiable form for all Shares to be sold
by such Selling Shareholder under this Agreement, together with a stock power
or powers duly endorsed in blank by such Selling Shareholder, have been placed
in custody with the Custodian for the purpose of effecting delivery hereunder.
(F) Each of this Agreement, the Power of Attorney and the
Custody Agreement has been duly authorized by each Selling Shareholder that is
not a natural person and has been duly executed and delivered by or on behalf
of each Selling Shareholder and is a valid and binding agreement of such
Selling Shareholder, enforceable against such Selling Shareholder in accordance
with its terms, except as
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rights to indemnification hereunder or thereunder may be limited by applicable
laws, equitable principles or public policy and except as the enforcement
hereof or thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles; and the
performance of each of this Agreement, the Power of Attorney and Custody
Agreement and the consummation of the transactions herein and therein
contemplated will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (i) the certificate of
incorporation or bylaws (or similar organizational documents) of such Selling
Shareholder (if not a natural person), or (ii) any indenture, mortgage, deed of
trust, loan agreement, bond, debenture, note agreement or other evidence of
indebtedness, or any lease, contract or other agreement or instrument to which
such Selling Shareholder is a party or by which the Selling Shareholder's
properties are bound, or (iii) any law, order, rule, regulation, writ,
injunction, judgment or decree of any court or governmental agency or body to
which such Selling Shareholder is subject.
(G) Such Selling Shareholder has not taken, and at the
Closing Date and at any later Option Closing Date, will not have taken,
directly or indirectly, any action that has constituted, or might reasonably be
expected to constitute, the stabilization or manipulation of the price of sale
or resale of the Shares.
(H) Such Selling Shareholder has not distributed and will not
distribute offering material in connection with the offering and sale of the
Shares.
(I) All information furnished by or on behalf of such Selling
Shareholder relating to such Selling Shareholder and the Shares to be sold by
the Selling Shareholder that is contained in the representations and warranties
of such Selling Shareholder in such Selling Shareholder's Power of Attorney or
set forth in the Registration Statement or the Prospectus is, and at the time
the Registration Statement became or becomes, as the case may be, 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, was or will be, true, correct
and complete, and does not, and at the time the Registration Statement became
or becomes, as the case may be, 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, will not, contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make such information not misleading.
(J) Such Selling Shareholder will review the Prospectus and
will comply with all agreements and satisfy all conditions on its part to be
complied with or satisfied pursuant to this Agreement on or prior to the
Closing Date, or any later date on which Option Shares are to be purchased, as
the case may be, and will advise one of its Attorneys and UBS Securities LLC
prior to the Closing Date or such later date on which Option Shares are to be
purchased, as the case may be, if any statement to be made on behalf of such
Selling Shareholder in the certificate contemplated by Section 8(h) would be
inaccurate if made as of the Closing Date or such later date on which Option
Shares are to be purchased, as the case may be.
(K) Such Selling Shareholder does not have, or has waived
prior to the date hereof, any preemptive right, co-sale right or right of first
refusal or other similar right to purchase any of the
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Shares that are to be sold by the Company or any of the other Selling
Shareholders to the Underwriters pursuant to this Agreement; such Selling
Shareholder does not have, or has waived prior to the date hereof, any
registration right or other similar right to participate in the offering made
by the Prospectus, other than such rights of participation as have been
satisfied by the participation of such Selling Shareholder in the transactions
to which this Agreement relates in accordance with the terms of this Agreement;
and such Selling Shareholder does not own any warrants, options or similar
rights to acquire, and does not have any right or arrangement to acquire, any
capital stock, rights, warrants, options or other securities from the Company,
other than those described in the Registration Statement and the Prospectus.
(L) Such Selling Shareholder is not aware that any of the
representations and warranties of the Company set forth in Section 1 above is
untrue or inaccurate in any material respect.
3. PURCHASE OF THE SHARES BY THE UNDERWRITERS.
(A) On the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Company shall issue
and sell the Company Shares to the several Underwriters, each Selling
Shareholder shall sell to the several Underwriters the number of Selling
Shareholder Shares set forth in Schedule B opposite the name of such Selling
Shareholder, and each of the Underwriters shall purchase from the Company and
Selling Shareholders the respective aggregate number of Firm Shares set forth
opposite its name on Schedule A, plus such additional number of Firm Shares
which such Underwriter may become obligated to purchase pursuant to Section
3(b) hereof. The price at which such Firm Shares shall be sold by the Company
and purchased by the several Underwriters shall be $_____ per share. The
obligation of each Underwriter to the Company and each of the Selling
Shareholders shall be to purchase from the Company and the Selling Shareholders
that number of the Firm Shares which represents the same proportion of the
total number of Firm Shares to be sold by each of the Company and the Selling
Shareholders pursuant to this Agreement as the number of the Firm Shares set
forth opposite the name of such Underwriter in Schedule A hereto represents of
the total number of the Firm Shares to be purchased by all Underwriters
pursuant to this Agreement, as adjusted by you in such manner as you deem
advisable to avoid fractional shares. In making this Agreement, each
Underwriter is contracting severally and not jointly; except as provided in
paragraphs (b) and (c) of this Section 3, the agreement of each Underwriter is
to purchase only the respective number of Firm Shares specified on Schedule A.
The certificates in negotiable form for the Shares to be sold
by the Selling Shareholders have been placed in custody (for delivery under
this Agreement) under the Custody Agreement. Each Selling Shareholder agrees
that the certificates for the Shares of such Selling Shareholder so held in
custody are subject to the interests of the Underwriters hereunder, that the
arrangements made by such Selling Shareholder for such custody, including the
Power of Attorney is to that extent irrevocable and that the obligations of
such Selling Shareholder hereunder shall not be terminated by the act of such
Selling Shareholder or by operation of law, whether by the death or incapacity
of such Selling Shareholder or the occurrence of any other event, except as
specifically provided herein or in the Custody Agreement. If any Selling
Shareholder should die or be incapacitated, or if any other such event should
occur, before the delivery of the certificates for the Shares to be sold by
such Selling Shareholder hereunder, the Shares
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to be sold by such Selling Shareholder shall, except as specifically provided
herein or in the Custody Agreement, be delivered by the Custodian in accordance
with the terms and conditions of this Agreement as if such death, incapacity or
other event had not occurred, regardless of whether the Custodian shall have
received notice of such death or other event.
(B) If for any reason one or more of the Underwriters shall
fail or refuse (otherwise than for a reason sufficient to justify the
termination of this Agreement under the provisions of Section 10 hereof) to
purchase and pay for the number of Shares agreed to be purchased by such
Underwriter or Underwriters, the non-defaulting Underwriters shall have the
right within twenty-four (24) hours after such default to purchase, or procure
one or more other Underwriters to purchase, in such proportions as may be
agreed upon between you and such purchasing Underwriter or Underwriters and
upon the terms herein set forth, all or any part of the Shares which such
defaulting Underwriter or Underwriters agreed to purchase. If the
non-defaulting Underwriters fail so to make such arrangements with respect to
all such Shares and portion, the number of Shares which each non-defaulting
Underwriter is otherwise obligated to purchase under this Agreement shall be
automatically increased on a pro rata basis (as adjusted by you in such manner
as you deem advisable to avoid fractional shares) to absorb the remaining
shares and portion which the defaulting Underwriter or Underwriters agreed to
purchase; provided, however, that the non-defaulting Underwriters shall not be
obligated to purchase the Shares and portion which the defaulting Underwriter
or Underwriters agreed to purchase if the aggregate number of such Shares
exceeds 10% of the total number of Shares which all Underwriters agreed to
purchase hereunder. If the total number of Shares which the defaulting
Underwriter or Underwriters agreed to purchase shall not be purchased or
absorbed in accordance with the two preceding sentences, the Company, on behalf
of itself and the Selling Shareholders, shall have the right, within
twenty-four (24) hours next succeeding the twenty-four (24) hour period
referred to above, to make arrangements with other underwriters or purchasers
reasonably satisfactory to you for purchase of such Shares and portion on the
terms herein set forth. In any such case, either you or the Company, on behalf
of itself and the Selling Shareholders, shall have the right to postpone the
Closing Date determined as provided in Section 4 hereof for not more than seven
business days after the date originally fixed as the Closing Date pursuant to
said Section 4 in order that any necessary changes in the Registration
Statement, the Offering Memorandum, the Prospectus or any other documents or
arrangements may be made. If the aggregate number of Shares which the
defaulting Underwriter or Underwriters agreed to purchase exceeds 10% of the
total number of Shares which all Underwriters agreed to purchase hereunder, and
if neither the non-defaulting Underwriters nor the Company, on behalf of itself
and the Selling Shareholders, shall make arrangements within the twenty-four
(24) hour periods stated above for the purchase of all the Shares which the
defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall be terminated without further act or deed and without any
liability on the part of the Company or the Selling Shareholders to any
non-defaulting Underwriter and without any liability on the part of any
non-defaulting Underwriter to the Company. Nothing in this paragraph (b), and
no action taken hereunder, shall relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
(C) On the basis of the representations, warranties and
covenants herein contained, and subject to the terms and conditions herein set
forth, the Selling Shareholders grant an option to the several Underwriters to
purchase all or any portion of the Option Shares from the Selling Shareholders
at the same price per share as the Underwriters shall pay for the Firm Shares.
Said option may be exercised
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only to cover over-allotments in the sale of the Firm Shares by the
Underwriters and may be exercised in whole or in part at any time (but not more
than once) on or before the 30th day after the date of this Agreement upon
written or telecopied notice by you to the Company and/or the Attorneys setting
forth the aggregate number of shares of the Option Shares as to which the
several Underwriters are exercising the option. Delivery of certificates for
the shares of Option Shares, and payment therefor, shall be made as provided in
Section 5 hereof. Each Underwriter will purchase such percentage of the Option
Shares as is equal to the percentage of Firm Shares that such Underwriter is
purchasing, the exact number of shares to be adjusted by you in such manner as
you deem advisable to avoid fractional shares.
4. OFFERING BY UNDERWRITERS.
(A) The terms of the public offering of the Shares in the
United States by the Underwriters shall be as set forth in the Prospectus. The
terms of the private placement of the Shares in Canada by the Underwriters
shall be as set forth in the Offering Memorandum. The Underwriters may from
time to time change the public offering and private placement prices after the
closing of the initial public offering and the private placement in Canada,
respectively, and increase or decrease the concessions and discounts to dealers
as they may determine.
(B) You, on behalf of the Underwriters, represent and warrant
that (i) the information set forth in the last paragraph on the front cover
page and the information contained in the [FIRST, THIRD, FIFTH, SEVENTH, EIGHTH
OR NINTH] paragraphs of the section entitled "Underwriting" contained in the
Registration Statement, the Offering Memorandum, any Preliminary Prospectus and
the Prospectus relating to the Shares (insofar as such information relates to
the Underwriters) constitutes the only information furnished by the
Underwriters to the Company for inclusion in the Registration Statement, the
Offering Memorandum, any Preliminary Prospectus, and the Prospectus, and that
the statements made therein are correct and do not omit to state any material
fact required to be stated therein or necessary to make the statements made
therein in light of the circumstances under which they were made not
misleading, and (ii) the Underwriters have not distributed and will not
distribute prior to the Closing Date or on any Option Closing Date, as the case
may be, any of offering material in connection with the offering and sale of
the shares other than the Preliminary Prospectus, the Prospectus, the
Registration Statement, the Offering Memorandum and other materials permitted
by the Act, the Rules and Regulations and applicable Canadian securities law.
5. DELIVERY OF AND PAYMENT FOR THE SHARES.
(A) Delivery of certificates for the Firm Shares and the
Option Shares (if the option granted pursuant to Section 3(c) hereof shall have
been exercised not later than 1:00 p.m., New York time, on the date at least
two business days preceding the Closing Date), and payment therefor, shall be
made at the office of Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (or at a location otherwise agreed to by the parties) at 10:00
a.m., New York time, on the third or fourth business day after the date of this
Agreement, or at such time on such other day, not later than seven full
business days after such fourth business day, as shall be agreed upon in
writing by the Company and you (the "Closing Date").
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(B) If the option granted pursuant to Section 3(c) hereof
shall be exercised after 1:00 p.m., New York time, on the date two business
days preceding the Closing Date, and on or before the 30th day after the date
of this Agreement, delivery of certificates for the Option Shares, and payment
therefor, shall be made at the office of Xxxxxxx, Phleger & Xxxxxxxx LLP, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or at a location otherwise agreed to be the
parties) at 10:00 a.m., New York time, on the third business day after the
exercise of such option.
(C) Payment for the Shares purchased from the Company shall
be made to the Company or its order, and payment for the Shares purchased from
the selling Shareholders shall be made to the [CUSTODIAN], for the account of
the Selling Shareholders, in each case by wire transfer of federal funds to the
account specified by the Company or by one or more certified or official bank
check or checks in same day funds. Such payment shall be made upon delivery of
certificates for the Shares to you for the respective accounts of the several
Underwriters against receipt therefor signed by you. Certificates for the
Shares to be delivered to you shall be registered in such name or names and
shall be in such denominations as you may request at least three business days
before the Closing Date, in the case of Firm Shares, and at least two business
days prior to the Option Closing Date, in the case of the Option Shares. Such
certificates will be made available to the Underwriters for inspection,
checking and packaging at a location in New York, New York, designated by the
Underwriters not less than one full business day prior to the Closing Date or,
in the case of the Option Shares, by 3:00 p.m., New York time, on the business
day preceding the Option Closing Date.
It is understood that you, individually and not on behalf of the
Underwriters, may (but shall not be obligated to) make payment to the Company
or to the [CUSTODIAN] for the account of the Selling Shareholders for shares to
be purchased by any Underwriter whose check shall not have been received by you
on the Closing Date or any later Option Closing Date. Any such payment by you
shall not relieve such Underwriter from any of its obligations hereunder.
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6. FURTHER AGREEMENTS OF THE COMPANY AND THE SELLING SHAREHOLDERS.
Each of the Company and the Selling Shareholders covenants and agrees as
follows:
(A) The Company will use its best efforts to cause the
Registration Statement and any amendment thereof, if not effective at the time
and date that this Agreement is executed and delivered by the parties hereto,
to become effective as promptly as possible; it will notify you, promptly after
it shall receive notice thereof, of the time when the Registration Statement or
any subsequent amendment to the Registration Statement has become effective or
any supplement to the Prospectus has been filed. If the Company omitted
information from the Registration Statement at the time it was originally
declared effective in reliance upon Rule 430A(a) of the Rules and Regulations,
the Company will provide evidence satisfactory to you that the Prospectus
contains such information and has been filed, within the time period
prescribed, with the Commission pursuant to subparagraph (1) or (4) of Rule
424(b) of the Rules and Regulations or as part of a post-effective amendment to
such Registration Statement as originally declared effective which is declared
effective by the Commission. If for any reason the filing of the final form of
Prospectus is required under Rule 424(b)(3) of the Rules and Regulations, it
will provide evidence satisfactory to you that the Prospectus contains such
information and has been filed with the Commission within the time period
prescribed. The Company will notify you promptly of any request by the
Commission for the amending or supplementing of the Registration Statement or
the Prospectus or for additional information. Promptly upon your request, it
will prepare and file with the Commission any amendments or supplements to the
Registration Statement or Prospectus which, in the reasonable opinion of
counsel to the several Underwriters (the "Underwriters' Counsel"), may be
necessary or advisable in connection with the distribution of the Shares by the
Underwriters. The Company will promptly prepare and file with the Commission,
and promptly notify you of the filing of, any amendments or supplements to the
Registration Statement or Prospectus which may be necessary to correct any
statements or omissions, if, at any time when a prospectus relating to the
Shares is required to be delivered under the Act, any event shall have occurred
as a result of which the Prospectus or any other prospectus relating to the
Shares as then in effect would include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. In case
any Underwriter is required to deliver a prospectus within the nine-month
period referred to in Section 10(a)(3) of the Act in connection with the sale
of the Shares, the Company will prepare promptly upon request, but at the
expense of such Underwriter, such amendment or amendments to the Registration
Statement and such prospectus or prospectuses as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Act. The Company
will file no amendment or supplement to the Registration Statement or
Prospectus that shall not previously have been submitted to you a reasonable
time prior to the proposed filing thereof or to which you shall reasonably
object in writing or which is not in compliance with the Act and Rules and
Regulations or the provisions of this Agreement.
(B) The Company will advise you, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance of any stop order
by the Commission suspending the effectiveness of the Registration Statement or
the use of the Prospectus or of the initiation or threat of any proceeding for
that purpose; and it will promptly use its best efforts to prevent the issuance
of any such stop order or to obtain its withdrawal at the earliest possible
moment if such stop order should be issued.
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(C) The Company will cooperate with you in endeavoring to
qualify the Shares for offering and sale under the securities laws of such
jurisdictions as you may designate and to continue such qualifications in
effect for so long as may be required for purposes of the distribution of the
Shares, except that the Company shall not be required in connection therewith
or as a condition thereof to qualify as a foreign corporation, or to execute a
general consent to service of process in any jurisdiction, or to make any
undertaking with respect to the conduct of its business. In each jurisdiction
in which the Shares shall have been qualified, the Company will make and file
such statements, reports and other documents in each year as are or may be
reasonably required by the laws of such jurisdictions so as to continue such
qualifications in effect for so long a period as you may reasonably request for
distribution of the Shares, or as otherwise may be required by law.
(D) The Company will furnish to you, as soon as available,
copies of the Registration Statement (three of which will be signed and which
will include all exhibits), each Preliminary Prospectus, the Prospectus, the
Offering Memorandum and any amendments or supplements to such documents,
including any prospectus prepared to permit compliance with Section 10(a)(3) of
the Act, all in such quantities as you may from time to time reasonably
request.
(E) The Company will make generally available to its
shareholders as soon as practicable, but in any event not later than the
forty-fifth (45th) day following the end of the fiscal quarter first occurring
after the first anniversary of the effective date of the Registration
Statement, an earnings statement (which will be in reasonable detail but need
not be audited) complying with the provisions of Section 11(a) of the Act and
Rule 158 of the Rules and Regulations and covering a twelve (12) month period
beginning after the effective date of the Registration Statement, and will
advise you in writing when such statement has been made available.
(F) During a period of five years after the date hereof, the
Company, as soon as practicable after the end of each respective period, will
furnish to its shareholders annual reports (including financial statements
audited by independent certified public accountants) and will furnish to its
shareholders unaudited quarterly reports of operations for each of the first
three quarters of the fiscal year, and will furnish to you and the other
several Underwriters hereunder (i) concurrently with making such reports
available to its shareholders, statements of operations of the Company for each
of the first three quarters in the form made available to the Company's
shareholders; (ii) concurrently with the furnishing thereof to its
shareholders, a balance sheet of the Company as of the end of such fiscal year,
together with statements of operations, of shareholders' equity and of cash
flow of the Company for such fiscal year, accompanied by a copy of the
certificate or report thereon of nationally recognized independent certified
public accountants; (iii) concurrently with the furnishing of such reports to
its shareholders, copies of all reports (financial or other) mailed to
shareholders; (iv) as soon as they are available, copies of all reports and
financial statements furnished to or filed with the Commission, any securities
exchange or the Nasdaq National Market by the Company (except for documents for
which confidential treatment is requested); and (v) every material press
release and every material news item or article in respect of the Company or
its affairs which was generally released to shareholders or prepared for
general release by the Company. During such five-year period, if the Company
shall have any active subsidiaries, the foregoing financial statements shall be
on a consolidated basis to the extent that the
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accounts of the Company are consolidated with any subsidiaries, and shall be
accompanied by similar financial statements for any significant subsidiary that
is not so consolidated.
(G) The Company shall not, during the 90 days following the
effective date of the Registration Statement, except with the prior written
consent of UBS Securities LLC, file a registration statement covering any of
its shares of capital stock, except that one or more registration statements on
Form S-8 may be filed at any time following the effective date of the
Registration Statement.
(H) The Company shall not, during the 90 days following the
effective date of the Registration Statement, except with the prior written
consent of UBS Securities LLC, issue, sell, offer or agree to sell, grant,
distribute or otherwise dispose of, directly or indirectly, any shares of
Common Stock, or any options, rights or warrants with respect to shares of
Common Stock, or any securities convertible into or exchangeable for Common
Stock, other than (i) the sale of Shares hereunder, (ii) the grant of options
or the issuance of shares of Common Stock under the Company's stock option
plans or stock purchase plan, as the case may be, existing on the date hereof,
and (iii) the issuance of shares of Common Stock upon exercise of the currently
outstanding options or warrants described in the Registration Statement.
(I) The Company will apply the net proceeds from the sale of
the Shares being sold by it in the manner set forth under the caption "Use of
Proceeds" in the Prospectus.
(J) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a registrar
(which may be the same entity as the transfer agent) for its Common Stock.
(K) The Company will use its best efforts to maintain listing
of its shares of Common Stock on the Nasdaq National Market.
(L) The Company is familiar with the Investment Company Act
of 1940, as amended, and the rules and regulations thereunder, and has in the
past conducted its affairs, and will in the future conduct its affairs, in such
a manner so as to ensure that the Company was not and will not be an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, and the rules and regulations thereunder.
(M) If at any time during the 180-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 your
reasonable opinion the market price of the Common Stock has been or is likely
to be materially affected (regardless of whether such rumor, publication or
event necessitates a supplement to or amendment of the Prospectus), the Company
will, after written notice from you advising the Company to the effect set
forth above consult with you in good faith regarding the necessity of
disseminating a press release or other public statement responding to or
commenting on such rumor, publication or event and, if the Company in its
reasonable judgment determines that such a press release or other public
statement is appropriate, the substance of any press release or other public
statement.
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(N) All material transactions (or similar transactions which,
collectively, are material) to be entered into by the Company with ERA Software
Systems Private Limited shall be at arm's length and shall be approved by an
independent committee of the Board of Directors of the Company.
7. EXPENSES. The Company and the Selling Shareholders agrees with each
Underwriter that:
(A) The Company will pay and bear all costs, fees and
expenses in connection with the preparation, printing and filing of the
Registration Statement (including financial statements, schedules and
exhibits), the Offering Memorandum (including fees relating to the filing of
reports in Canada), Preliminary Prospectuses and the Prospectus and any
amendments or supplements thereto; the reproduction of this Agreement, the
Agreement Among Underwriters, the Selected Dealer Agreement, the Preliminary
Blue Sky Memoranda and any Supplemental Blue Sky Memoranda and any instruments
related to any of the foregoing; the issuance and delivery of the Shares
hereunder to the several Underwriters, including transfer taxes, if any; the
cost of all stock certificates representing the Shares and transfer agents' and
registrars' fees; the fees and disbursements of corporate, patent and
regulatory counsel for the Company; all fees and other charges of the Company's
independent public accountants; the cost of furnishing to the several
Underwriters copies of the Registration Statement (including appropriate
exhibits), the Offering Memorandum, Preliminary Prospectuses and the
Prospectus, and any amendments or supplements to any of the foregoing; NASD
filing fees and expenses incident to securing any required review and the cost
of qualifying the Shares under the laws of such jurisdictions within the United
States as you may designate (including filing fees and fees and disbursements
of Underwriters' Counsel in connection with such NASD filings and Blue Sky
qualifications); listing application fees of the Nasdaq National Market; and
all other expenses directly incurred by the Company or the Selling Shareholders
in connection with the performance of their obligations hereunder. Any
additional expenses incurred as a result of the sale of the Shares by the
Selling Shareholders will be borne collectively by the Company and the Selling
Shareholders. The provisions of this section are intended to relieve the
Underwriters from the payment of the expenses and costs which the Selling
Shareholders and the Company hereby agree to pay, but shall not affect any
agreement which the Selling Shareholders and the Company may make, or may have
made, for the sharing of such expenses and costs. Such agreements shall not
impair the obligations of the Company and the Selling Shareholders hereunder to
the several Underwriters.
(B) If the transactions contemplated hereby are not
consummated by reason of any failure, refusal or inability on the part of the
Company or the Selling Shareholders to perform any agreement on its part to be
performed hereunder or to fulfill any condition of the Underwriters'
obligations hereunder, the Company and the Selling Shareholders will, in
addition to paying the expenses described in clause (a) above, reimburse the
several Underwriters for all out-of-pocket expenses (including reasonable fees
and disbursements of Underwriters' Counsel) incurred by the Underwriters in
reviewing the Registration Statement and the Prospectus and in preparing the
Offering Memorandum and in otherwise investigating, preparing to market or
marketing the Shares. Neither the Company nor the Selling Shareholders will in
no event be liable to any of the several Underwriters for any loss of
anticipated profits from the sale by them of the Shares.
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8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
several Underwriters to purchase and pay for the Shares, as provided herein,
shall be subject to the accuracy, as of the date hereof and the Closing Date
and any later Option Closing Date, as the case may be, of the representations
and warranties of the Company herein, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(A) The Registration Statement shall have become effective
not later than 9:00 a.m., New York time, on the date following the date of this
Agreement, or such later time or date as shall be consented to in writing by
you. If the filing of the Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b) and Rule 430A of the Rules and Regulations, the
Prospectus shall have been filed in the manner and within the time period
required by Rule 424(b) and Rule 430A of the Rules and Regulations. No stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceeding for that purpose shall have been initiated or, to
the knowledge of the Company, the Selling Shareholders or any Underwriter,
threatened by the Commission, and any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to the satisfaction of Underwriters'
Counsel.
(B) All corporate proceedings and other legal matters in
connection with this Agreement, the form of Registration Statement, the
Offering Memorandum and the Prospectus, and the registration, authorization,
issue, sale and delivery of the Shares shall have been reasonably satisfactory
to Underwriters' Counsel, and such counsel shall have been furnished with such
documents and information as they may reasonably have requested to enable them
to pass upon the matters referred to in this subsection.
(C) You shall have received, at no cost to you, on the
Closing Date and on any later Option Closing Date, as the case may be, the
opinions of Xxxxx & Xxxxxxx, P.C., counsel to the Company, dated the Closing
Date or such later Option Closing Date, in the form attached hereto as Appendix
A, addressed to the Underwriters and with reproduced copies of signed
counterparts thereof for each of the Representatives.
(D) You shall have received, at no cost to you, on the
Closing Date and on any later Option Closing Date, as the case may be, the
opinion of [ ], counsel to the Selling Shareholders, dated the Closing Date or
such later Option Closing Date, in the form attached hereto as Appendix B
addressed to the Underwriters and with reproduced copies of signed counterparts
thereof for each of the Representatives.
(E) You shall have received from Xxxxxxx, Phleger & Xxxxxxxx
LLP, Underwriters' Counsel, an opinion or opinions, dated the Closing Date or
on any later Option Closing Date, as the case may be, in form and substance
reasonably satisfactory to you, with respect to the sufficiency of all
corporate proceedings undertaken by the Company and other legal matters
relating to this Agreement and the transactions contemplated hereby as you may
reasonably require, and the Company shall have furnished to such counsel such
documents as it may have reasonably requested for the purpose of enabling it to
pass upon such matters.
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(F) You shall have received on the Closing Date and on any
later Option Closing Date, as the case may be, a letter from the Accountants
addressed to the Company and the Underwriters, dated the Closing Date or such
later Option Closing Date, as the case may be, confirming that they are
independent certified public accountants with respect to the Company within the
meaning of the Act and the Rules and Regulations thereunder and based upon the
procedures described in its letter delivered to you concurrently with the
execution of this Agreement (herein called the "Original Letter"), but carried
out to a date not more than three days prior to the Closing Date or any such
later Option Closing Date, as the case may be, (i) confirming that the
statements and conclusions set forth in the Original Letter are accurate as of
the Closing Date or such later Option Closing Date, as the case may be; and
(ii) setting forth any revisions and additions to the statements and
conclusions set forth in the Original Letter that are necessary to reflect any
changes in the facts described in the Original Letter since the date of such
letter, or to reflect the availability of more recent financial statements,
data or information. The letter shall not disclose any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company which, in your reasonable judgment, makes it
impracticable or inadvisable to proceed with the public offering of the Shares
as contemplated by the Prospectus. In addition, you shall have received from
the Accountants a letter addressed to the Company and made available to you for
the use of the Underwriters stating that its review of the Company's system of
internal accounting controls, to the extent it deemed necessary in establishing
the scope of its latest examination of the Company's financial statements, did
not disclose any weaknesses in internal controls that it considered to be
material weaknesses. All such letters shall be in a form reasonably
satisfactory to the Representatives and their counsel.
(G) You shall have received on the Closing Date and on any
later Option Closing Date, as the case may be, a certificate of the President
and the Chief Financial Officer of the Company, dated the Closing Date or such
later date, to the effect that as of such date (and you shall be satisfied that
as of such date):
(i) The representations and warranties of the Company
in this Agreement are true and correct, as if made on and as
of the Closing Date or any later Option Closing Date, as the
case may be; and the Company has complied with all of the
agreements and satisfied all of the conditions on its part to
be performed or satisfied at or prior to the Closing Date or
any later Option Closing Date, as the case may be;
(ii) The Registration Statement has become effective
under the Act and no stop order suspending the effectiveness
of the Registration Statement or preventing or suspending the
use of the Prospectus has been issued, and no proceedings for
that purpose have been instituted or are pending or, to the
best of their knowledge, threatened under the Act;
(iii) They have carefully reviewed the Registration
Statement, the Offering Memorandum and the Prospectus; and,
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
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contained all statements and information required to be
included therein or necessary to make the statements therein
not misleading; and when the Registration Statement became
effective, and at all times subsequent thereto up to the
delivery of such certificate, none of the Registration
Statement, the Prospectus or the Offering Memorandum or any
amendment or supplement thereto included any 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; 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 or Offering Memorandum that has not been so set
forth; and
(iv) Subsequent to the respective dates as of which
information is given in the Registration Statement, the
Offering Memorandum and the Prospectus, there has not been
(A) any material adverse change in the properties or assets
described or referred to in the Registration Statement, the
Offering Memorandum and the Prospectus or in the condition
(financial or otherwise), operations, business or prospects
of the Company, (B) any transaction which is material to the
Company, except transactions entered into in the ordinary
course of business, (C) any obligation, direct or contingent,
incurred by the Company, which is material to the Company,
(D) any change in the capital stock or outstanding
indebtedness of the Company which is material to the Company,
(E) any dividend or distribution of any kind declared, paid
or made on the capital stock of the Company, or (F) any loss
or damage (whether or not insured) to the property of the
Company which has been sustained or will have been sustained
which has a Material Adverse Effect.
(H) You shall have received on the Closing Date and on any
later Option Closing Date, as the case may be, a certificate dated as of the
date of delivery, signed by the Attorneys for the Selling Shareholders to the
effect that, as of the Closing Date, or any later Option Closing Date, as the
case may be, they have not been informed that:
(I) The representations and warranties made by the
Selling Shareholders herein are not true and correct in any
material respect on the Closing Date or the Option Closing
Date, as the case may be; and
(II) The Selling Shareholders have not complied with
any obligation or satisfied any condition which is required
to be satisfied on the part of such Selling Shareholder at or
prior to the Closing Date or the Option Closing Date, as the
case may be.
(I) The Company and the Selling Shareholders shall have
furnished to you such further certificates and documents as you shall
reasonably request (including certificates of officers of the Company, the
Selling Shareholders or officers of the Selling Shareholders in those instances
where the Selling Shareholder is not a natural person), as to the accuracy of
the representations and warranties of the Company and the Selling Shareholders
herein, as to the performance by the Company and the Selling Shareholders of
their respective obligations hereunder and as to the other conditions
concurrent and precedent to the obligations of the Underwriters hereunder.
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(J) The Company shall have timely filed with the Nasdaq
National Market a notification form for listing of additional shares on the
Nasdaq National Market with respect to the Firm Shares and the Option Shares,
if any; and the Firm Shares and the Option shares, if any, shall have been
approved for designation upon notice of issuance on the Nasdaq National Market.
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
to Underwriters' Counsel. The Company or the Selling Shareholders, as the case
may be, will furnish you with such number of conformed copies of such opinions,
certificates, letters and documents as you shall reasonably request.
9. INDEMNIFICATION AND CONTRIBUTION.
(A) Subject to the provisions of paragraph (f) below, the
Company and the Selling Shareholders jointly and severally agree to indemnify
and hold harmless each Underwriter and each person (including each partner or
officer thereof) who controls any Underwriter within the meaning of Section 15
of the Act from and against any and all losses, claims, damages or liabilities,
joint or several, to which such indemnified parties or any of them may become
subject under the Act, the Exchange Act, or the common law or otherwise, and
the Company and the Selling Shareholders jointly and severally agree to
reimburse each such Underwriter and controlling person for any legal or other
out-of-pocket expenses (including, except as otherwise hereinafter provided,
reasonable fees and disbursements of counsel) incurred by the respective
indemnified parties in connection with defending against any such losses,
claims, damages or liabilities or in connection with any investigation or
inquiry of, or other proceeding which may be brought against, the respective
indemnified parties, in each case arising out of or based upon (i) any breach
of any representation, warranty, agreement or covenant of the Company or any
Selling Shareholders contained in this Agreement, (ii) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (including the Prospectus as part thereof and any 462(b) registration
statement) or in the Offering Memorandum or any post-effective amendment
thereto (including any 462(b) registration statement), 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 (iii) any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Prospectus (as amended or as supplemented if the
Company shall have filed with the Commission any amendment thereof or
supplement thereto) or in the Offering Memorandum or the omission or alleged
omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that (1) the indemnity agreements of
the Company and the Selling Shareholders contained in this paragraph (a) shall
not apply to any such losses, claims, damages, liabilities or expenses if such
statement or omission is contained in the section of the Prospectus entitled
"Underwriting" (except for the sixth paragraph thereof) or the last paragraph
of text on the cover page of the Prospectus or in the section of the Offering
Memorandum entitled "Representation by Purchasers", (2) the indemnity agreement
contained in this paragraph (a) with respect to any Preliminary Prospectus or
Offering Memorandum shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, claims, damages, liabilities or expenses
purchased the Shares which is the subject thereof (or to the benefit of any
person controlling such Underwriter) if at or prior to the written confirmation
of the sale of such Shares a
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copy of the Prospectus (or the Prospectus as amended or supplemented or, in the
case of purchasers resident in Ontario, Canada, the revised Offering
Memorandum) was not sent or delivered to such person (excluding any documents
incorporated therein by reference) and the untrue statement or omission of a
material fact contained in such Preliminary Prospectus was corrected in the
Prospectus (or the Prospectus as amended or supplemented or, in the case of
purchasers resident in Ontario, Canada, the revised Offering Memorandum) unless
the failure is the result of noncompliance by the Company with paragraph (a) of
Section 5 hereof, and (3) each Selling Shareholder (other than a Principal
Selling Shareholder) shall only be liable under this section with respect to
(A) information pertaining to such Selling Shareholder furnished by or on
behalf of such Selling Shareholder expressly for use in any Preliminary
Prospectus or the Registration Statement or the Prospectus or any such
amendment thereof or supplement thereto or (B) facts that would constitute a
breach of any representation or warranty of such Selling Shareholder set forth
in Section 2 hereof. The indemnity agreements of the Company contained in this
paragraph (a) and the representations and warranties of the Company contained
in Section 1 hereof shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any indemnified party
and shall survive the delivery of and payment for the Shares.
(B) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its executive officers, each
of its directors, each other Underwriter and each person (including each
partner or officer thereof) who controls the Company or any such other
Underwriter within the meaning of Section 15 of the Act, and the Selling
Shareholders from and against any and all losses, claims, damages or
liabilities, joint or several, to which such indemnified parties or any of them
may become subject under the Act, the Exchange Act, or the common law or
otherwise and to reimburse each of them for any legal or other expenses
including, except as otherwise hereinafter provided, reasonable fees and
disbursements of counsel) incurred by the respective indemnified parties in
connection with defending against any such losses, claims, damages or
liabilities or in connection with any investigation or inquiry of, or other
proceeding which may be brought against, the respective indemnified parties, in
each case arising out of or based upon (i) any breach of any representation,
warranty, agreement or covenant of such Underwriter contained in this
Agreement, (ii) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (including the Prospectus as part
thereof and any Rule 462(b) registration statement) or in the Offering
Memorandum or any post-effective amendment thereto (including any 462(b)
registration statement) 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 (iii) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus or the
Prospectus (as amended or as supplemented if the Company shall have filed with
the Commission any amendment thereof or supplement thereto) or in the Offering
Memorandum or the omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that in the cases of clauses (i) and (ii) above, such statement or omission is
contained in the Section of the Prospectus entitled "Underwriting" (except for
the [ ] paragraph thereof) or the last paragraph on the cover page of the
Prospectus or in the section of the Offering Memorandum entitled
"Representations by Purchasers." The indemnity agreement of each Underwriter
contained in this paragraph (b) shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any indemnified
party and shall survive the delivery of and payment for the Shares.
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(C) Each party indemnified under the provision of paragraphs
(a) and (b) of this Section 9 agrees that, upon the service of a summons or
other initial legal process upon it in any action or suit instituted against it
or upon its receipt of written notification of the commencement of any
investigation or inquiry of, or proceeding against it, in respect of which
indemnity may be sought on account of any indemnity agreement contained in such
paragraphs, it will promptly give written notice (a "Notice") of such service
or notification to the party or parties from whom indemnification may be sought
hereunder. No indemnification provided for in such paragraphs shall be
available to any party who shall fail so to give the Notice if the party to
whom such Notice was not given was unaware of the action, suit, investigation,
inquiry or proceeding to which the Notice would have related and was prejudiced
by the failure to give the Notice, but the omission so to notify such
indemnifying party or parties of any such service or notification shall not
relieve such indemnifying party or parties from any liability which it or they
may have to the indemnified party for contribution or otherwise than on account
of such indemnity agreement. Any indemnifying party shall be entitled at its
own expense to participate in the defense of any action, suit or proceeding
against, or investigation or inquiry of, an indemnified party. Any indemnifying
party shall be entitled, if it so elects within a reasonable time after receipt
of the Notice by giving written notice (the "Notice of Defense") to the
indemnified party, to assume (alone or in conjunction with any other
indemnifying party or parties) the entire defense of such action, suit,
investigation, inquiry or proceeding, in which event such defense shall be
conducted, at the expense of the indemnifying party or parties, by counsel
chosen by such indemnifying party or parties and reasonably satisfactory to the
indemnified party or parties; provided, however, that (i) if the indemnified
party or parties reasonably determine that there may be a conflict between the
positions of the indemnifying party or parties and of the indemnified party or
parties in conducting the defense of such action, suit, investigation, inquiry
or proceeding or that there may be legal defenses available to such indemnified
party or parties different from or in addition to those available to the
indemnifying party or parties, then counsel for the indemnified party or
parties shall be entitled to conduct the defense to the extent reasonably
determined by such counsel to be necessary to protect the interests of the
indemnified party or parties and (ii) in any event, the indemnified party or
parties shall be entitled, at its or their own expense to have counsel chosen
by such indemnified party or parties participate in, but not conduct, the
defense. It is understood that the indemnifying parties shall not, in respect
of the legal defenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for (a)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all of the Underwriters and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act, and (b) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
the Company, its directors, its officers who sign the Registration Statement
and each person, if any, who controls the Company within the meaning of Section
15 of the Act. If, within a reasonable time after receipt of the Notice, an
indemnifying party gives a Notice of Defense and the counsel chosen by the
indemnifying party or parties is reasonably satisfactory to the indemnified
party or parties, the indemnifying party or parties will not be liable under
paragraphs (a) through (c) of this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party or parties in connection with
the defense of the action, suit, investigation, inquiry or proceeding, except
that (A) the indemnifying party or parties shall bear the legal and other
expenses incurred in connection with the conduct of the defense as referred to
in clause (i) of the proviso to the preceding sentence and (B) the indemnifying
party or parties shall bear such other expenses as it or they have authorized
to be incurred by the indemnified party or
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parties. If, within a reasonable time after receipt of the Notice, no Notice of
Defense has been given, the indemnifying party or parties shall be responsible
for any legal or other expenses incurred by the indemnified party or parties in
connection with the defense of the action, suit, investigation, inquiry or
proceeding. The indemnifying party or parties shall not be liable for any
settlement of any proceeding effected without its or their written consent,
provided such consent has not been unreasonably withheld.
(D) If the indemnification provided for in this Section 9 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) of this Section 9, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in paragraph (a) or (b) of this Section 9 (i) in such
proportion as is appropriate to reflect the relative benefits received by each
indemnifying party from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of each indemnifying party
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, or actions in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Selling Shareholders, on the one hand, and the Underwriters, on
the other, shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of the Shares received by the Company and
the Selling Shareholders and the total underwriting discount received by the
Underwriters, as set forth in the table on the cover page of the Prospectus,
bear to the aggregate public offering price of the Shares. Relative fault 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 each indemnifying
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The parties agree that it would not be just and equitable if
contributions pursuant to this paragraph (d) were to be 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 into account
the equitable considerations referred to in the first sentence of this
paragraph (d). The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities, or actions in respect thereof, referred
to in the first sentence of this paragraph (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigation, preparation to defend or defense against any
action or claim which is the subject of this paragraph (d). Notwithstanding the
provisions of this paragraph (d), no Underwriter shall be required to
contribute any amount in excess of the underwriting discount applicable to the
Shares purchased by such Underwriter. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this paragraph (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
Each party entitled to contribution agrees that upon the
service of a summons or other initial legal process upon it in any action
instituted against it in respect of which contribution may be sought, it will
promptly give written notice of such service to the party or parties from whom
contribution
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may be sought, but the omission so to notify such party or parties of any such
service shall not relieve the party from whom contribution may be sought from
any obligation it may have hereunder or otherwise (except as specifically
provided in paragraph (c) of this Section 9).
(E) The Company will not, without the prior written consent
of each Underwriter, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not such
Underwriter or any person who controls such Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act is a party to such
claim, action, suit or proceeding) unless such settlement, compromise or
consent includes an unconditional release of such Underwriter and each such
controlling person from all liability arising out of such claim, action, suit
or proceeding.
(F) 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 9 and are fully informed regarding said
provisions. They further acknowledge that the provisions of this Section 9
fairly allocate the risks in light of the ability of the parties to investigate
the Company and its business in order to assure that adequate disclosure is
made in the Registration Statement and Prospectus as required by the Act and
the Exchange Act or in the Offering Memorandum as required by Canadian
securities law.
(G) The liability of each Selling Shareholder under such
Selling Shareholder's representations and warranties contained in Section 2
hereof, and in the case of each Principal Selling Shareholder, under such
Principal Selling Shareholder's representations and warranties contained in
Section 1 hereof, and under the indemnity and reimbursement agreements
contained in the provisions of this Section 9 and Section 11 hereof shall be
limited to an amount equal to the public offering price of the Shares sold by
such Selling Shareholder to the Underwriters. The Company and the Selling
Shareholders may agree, as among themselves and without limiting the rights of
the Underwriters under this Agreement, as to the respective amounts of such
liability for which they each shall be responsible.
10. TERMINATION. This Agreement may be terminated by you at any time
on or prior to the Closing Date or on or prior to any later Option Closing
Date, as the case may be, (i) if the Company shall have failed, refused or been
unable, at or prior to the Closing Date, or on or prior to any later Option
Closing Date, as the case may be, to perform any agreement on its part to be
performed, or because any other condition of the Underwriters' obligations
hereunder required to be fulfilled by the Company or the Selling Shareholders
is not fulfilled, including, without limitation, any material adverse change in
the financial condition, earnings, operations, business or business prospects
of the Company from that set forth in the Registration Statement or Prospectus,
whether or not arising in the ordinary course of business, or (ii) if trading
on the New York Stock Exchange, the American Stock Exchange or the Nasdaq
National Market shall have been suspended, or minimum or maximum prices for
trading shall have been fixed, or maximum ranges for prices for securities
shall have been required on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market, by such trading exchanges or by order
of the Commission or any other governmental authority having jurisdiction, or
if a banking moratorium shall have been declared by federal or New York
authorities, or (iii) if the Company shall have sustained a loss by strike,
fire, flood, accident or other calamity of such character as to have a
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Material Adverse Effect regardless of whether or not such loss shall have been
insured, or (iv) if there shall have been a material adverse change in the
general political or economic conditions or financial markets in the United
States as in the sole judgment of the Representatives makes it inadvisable or
impracticable to proceed with the offering, sale and delivery of the Shares, or
(v) if there shall have occurred an outbreak or escalation of hostilities
between the United States and any foreign power or of any other insurrection or
armed conflict involving the United States or other national or international
calamity, hostilities or crisis or the declaration by the United States of a
national emergency which, in the judgment of the Representatives, adversely
affects the marketability of the Shares, or (vi) if since the respective dates
as of which information is given in the Registration Statement, the Offering
Memorandum and the Prospectus, there shall have occurred any material adverse
change or any development involving a prospective material adverse change in or
affecting the condition, financial or otherwise, of the Company or the business
affairs, management, or business prospects of the Company, whether or not
arising in the ordinary course of business, or (vii) if any foreign, federal or
state statute, regulation, rule or order of any court or other governmental
authority shall have been enacted, published, decreed or otherwise promulgated
which in the judgment of the Representatives materially and adversely affects
or will materially and adversely affect the business or operations of the
Company, or trading in the Common Stock shall have been suspended, or (viii)
there shall have occurred a material adverse decline in the value of securities
generally on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market or (ix) action shall be taken by any foreign, federal,
state or local government or agency in respect of its monetary or fiscal
affairs which, in the judgment of the Representatives, has a material adverse
effect on the securities markets in the United States. If this Agreement shall
be terminated in accordance with this Section 10, there shall be no liability
of the Company or the Selling Shareholders to the Underwriters and no liability
of the Underwriters to the Company or the Selling Shareholders; provided,
however, that in the event of any such termination the Company and the Selling
Shareholders agree to indemnify and hold harmless the Underwriters from all
costs or expenses incident to the performance of the obligations of the Company
and the Selling Shareholders under this Agreement, including all costs and
expenses referred to in Section 6.
If you elect to terminate this Agreement as provided in this
Section 10, the Company shall be notified promptly by you by telephone,
telecopy or telegram, confirmed by letter.
11. REIMBURSEMENT OF CERTAIN EXPENSES.
(A) In addition to their other obligations under Section 9 of
this Agreement, the Company and the Selling Shareholders hereby jointly and
severally agree to reimburse on a quarterly basis the Underwriters for all
reasonable legal and other expenses incurred in connection with investigating
or defending any claim, action, investigation, inquiry or other proceeding
arising out of or based upon any statement or omission, or any alleged
statement or omission, described in paragraph (a) of Section 9 of this
Agreement, notwithstanding the absence of a judicial determination as to the
propriety and enforceability of the obligations under this Section 11 and the
possibility that such payments might later be held to be improper; provided,
however, that (i) to the extent any such payment is ultimately held to be
improper, the persons receiving such payments shall promptly refund them and
(ii) such persons shall provide to the Company, upon request, reasonable
assurances of their ability to effect any refund, when and if due.
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(B) In addition to their other obligations under Section 8 of
this Agreement, the Underwriters hereby agree to reimburse on a quarterly basis
the Company and the Selling Shareholders for all reasonable legal and other
expenses incurred in connection with investigating or defending any claim,
action, investigation, inquiry or other proceeding arising out of or based upon
any statement or omission, or any alleged statement or omission, described in
paragraph (b) of Section 9 of this Agreement, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the
obligations under this Section 11 and the possibility that such payments might
later be held to be improper; provided, however, that (i) to the extent any
such payment is ultimately held to be improper, the Company and the Selling
Shareholders shall promptly refund it and (ii) the Company and the Selling
Shareholders shall provide to the Underwriter, upon request, reasonable
assurances of its ability to effect any refund, when and if due.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of the Company, the Selling Shareholders and the several
Underwriters and, with respect to the provisions of Section 9 hereof, the
several parties (in addition to the Company, the selling Shareholders and the
several Underwriters) indemnified under the provisions of said Section 9, and
their respective personal representatives, successors and assigns. Nothing in
this Agreement is intended or shall be construed to give to any other person,
firm or corporation any legal or equitable remedy or claim under or in respect
of this Agreement or any provision herein contained. The term "successors and
assigns" as herein used shall not include any purchaser, as such purchaser, of
any of the Shares from any of the several Underwriters.
13. NOTICES. Except as otherwise provided herein, all communications
hereunder shall be in writing or by telecopy and, if to the Underwriters, shall
be mailed, telecopied or delivered to UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx
Xxxx, XX 00000, Attention: Mr. Xxx Xxxxx, with a copy to Xxxxxxx, Phleger &
Xxxxxxxx LLP, 0000 Xxxxxxxx, 00xx Xxxxx, 00000, Xxxxxxxxx: Xxxxxxxxx X. Xxxxx;
if to the Company, shall be mailed, telecopied or delivered to it at its
office, SEEC, Inc., 0000 Xxxx Xxxxxxxxx, Xxxxxxxxxx, XX 00000, Attention:
Xxxxxxxx Xxxx, with a copy to Xxxxx & Xxxxxxx, P.C., 2900 CNG Tower, 000
Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, Attention Xxxxxx Xxxxxxx; and if to the
Selling Shareholders, shall be mailed, telecopied or delivered to [ ], with a
copy to [ ]. All notices given by telecopy shall be promptly confirmed by
letter.
14. MISCELLANEOUS. The reimbursement, indemnification and contribution
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(i) any investigation made by or on behalf of any Underwriter or controlling
person thereof, or by or on behalf of the Selling Shareholders, the Company or
the Company's respective directors of officers, and (ii) delivery of and
payment for the Shares under this Agreement.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
You will act as Representatives of the several Underwriters
in all dealings with the Company under this Agreement, and any action under or
in respect of this Agreement taken by you jointly or by UBS Securities LLC, as
Representatives, will be binding upon all of the Underwriters.
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This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
[INTENTIONALLY LEFT BLANK]
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Please sign and return to the Company the enclosed duplicates of this
letter, whereupon this letter will become a binding agreement among the Company
and the several Underwriters in accordance with its terms.
Very truly yours,
SEEC, INC.
By:____________________________
__________________________
__________________________
SELLING SHAREHOLDERS
By: __________________________
__________________________
Attorney-in-fact
By: __________________________
__________________________
Attorney-in-fact
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
UBS SECURITIES LLC
X.X. XXXXXXXXXX & CO., INC.
CRUTTENDEN XXXX INCORPORATED
By: UBS SECURITIES LLC
By: __________________________
__________________________
__________________________
Acting on behalf of the several Underwriters,
including themselves, named on Schedule A
hereto.
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SCHEDULE A
UNDERWRITERS
Number of
Shares
to be
Underwriters Purchased
------------ ---------
UBS Securities LLC..............................................
X.X. Xxxxxxxxxx & Co., Inc......................................
Cruttenden Xxxx Incorporated....................................
Total............................
===========
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SCHEDULE B
SELLING SHAREHOLDERS
Name of Shareholder Selling Option Shares
------------------- Shareholder -------------
Shares
------
35
SCHEDULE C
Lock-Up Agreements
------------------
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APPENDIX A
OPINION OF COUNSEL TO THE COMPANY
Xxxxx & Xxxxxxx, P.C., counsel to the Company, shall opine to
the effect that:
(A) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the Commonwealth
of Pennsylvania. The Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires such
qualification, except where the failure to so qualify would not have a Material
Adverse Effect;
(B) The Company has full corporate power and authority to
own, lease and operate its properties and conduct its business as described in
the Registration Statement;
(C) The Company has no subsidiaries and does not own,
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;
(D) The Company has full power and authority (corporate and
otherwise) to enter into this Agreement and to perform the transactions
contemplated hereby, including, without limitation, the power and authority to
issue, sell and deliver to the Underwriters the Firm Shares or the Option
Shares, as the case may be;
(E) This Agreement has been duly authorized by all necessary
corporate action on the part of the Company and has been duly executed and
delivered by the Company and is a valid and binding agreement on the part of
the Company, enforceable against the Company in accordance with its terms,
except as rights to indemnity and contribution hereunder may be limited by
applicable laws or equitable principles and except as enforcement hereof may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles;
(F) The authorized capital stock of the Company consists of
[ ] shares of Preferred Stock, of which there are no outstanding shares, and [ ]
shares of Common Stock, $.01 par value per share, of which there are
outstanding [ ] shares (including the Firm Shares plus the number of Option
Shares issued on the date hereof); 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 or subject to any
preemptive right, resale right, right of first refusal or similar right known
to such counsel. The terms and provisions of the capital stock of the Company
conform to the description thereof contained in the Registration Statement and
the Prospectus, and the information in the Prospectus under the caption
"Description of Capital
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Stock," to the extent that it constitutes matters of law or legal conclusions,
has been reviewed by such counsel and is correct, and the form of certificate
evidencing the Common Stock complies with the applicable provisions of
Pennsylvania law;
(G) The Shares to be issued by the Company have been duly
authorized for issuance and sale to the Underwriters pursuant to this Agreement
and, when issued and delivered by the Company against payment therefor in
accordance with the terms of this Agreement, will be duly and validly issued
and fully paid and nonassessable and will be sold free and clear of any pledge,
lien, security interest, charge, encumbrance, claim, equitable interest, or
restriction, and, to the best knowledge of such counsel, not in violation of
any preemptive right, co-sale right, registration right, right of first refusal
or other similar right, which rights have not previously been waived, in
connection with the purchase or sale of any of the Shares;
(H) The statements in the Registration Statement and the
Prospectus summarizing statutes, rules and regulations, including the
Pennsylvania Business Corporation Law, and the description of the certificate
of incorporation and bylaws are accurate and fairly and correctly present the
information required to be presented by the Act or the Rules and Regulations in
all material respects; and such counsel does not know of any statutes, rules or
regulations required to be described in the Registration Statement or the
Prospectus that are not described or referred to therein as required;
(I) To the best of such counsel's knowledge, there are no
agreements, contracts, leases or documents of a character required to be
described in, or filed as an exhibit to, the Registration Statement which are
not described or filed as required by the Act and the applicable Rules and
Regulations;
(J) The Company is not (i) in violation of its certificate of
incorporation or bylaws, or (ii) to the best knowledge of such counsel, in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any bond, debenture, note or other evidence of
indebtedness, which default would have a Material Adverse Effect, or (iii) to
the best knowledge of such counsel, in default in the performance or observance
of any contract, indenture, mortgage, loan agreement, joint venture or other
agreement or instrument to which it is a party or by which it or any of its
properties are bound, which default would have a Material Adverse Effect, or
(iv) in violation of any law, order, rule, regulation, writ, injunction,
judgment or decree of any court or governmental agency or body to which the
Company is subject;
(K) The execution, delivery and performance of this Agreement
will not result in a breach or violation of any of the terms and provisions of,
or constitute a default under, (i) to the best knowledge of such counsel, any
indenture, mortgage, deed of trust, loan agreement, bond, debenture, note
agreement or other evidence of indebtedness, or any lease, contract or other
agreement or instrument to which the Company is a party or by which its
properties are bound, or (ii) the certificate of incorporation or bylaws of the
Company, any agreement or document filed as an exhibit to the Registration
Statement, or any statute, rule or regulation applicable to the Company (except
that no opinion need to be expressed with respect to compliance with state
securities or "Blue Sky" laws), or
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(iii) to the best knowledge of such counsel, any law, order, rule, regulation,
writ, injunction, judgment or decree of any court or governmental agency or
body to which the Company is subject;
(L) The Company has the corporate power and authority to own
or lease all of the assets owned or leased by it and to conduct its business,
in each case as described in the Registration Statement and the Prospectus,
except where failure to have such power and authority would not have a Material
Adverse Effect, and has all licenses, consents, certificates, orders, approvals
and permits from all state, United States, foreign and other regulatory
authorities, that are material to the conduct of the business of the Company as
described in the Registration Statement and the Prospectus, all of which are
valid and in full force and effect (and there is no proceeding pending or, to
the best knowledge of the such counsel, threatened which may cause any such
license, consent, certificate, order, approval or permit to be withdrawn,
cancelled, suspended or not renewed), except where failure to have such
licenses, consents, certificates, orders, approvals and permits would not have
a Material Adverse Effect;
(M) To the best knowledge of such counsel, (i) the Company
has good and marketable title to all material properties and assets described
in the Prospectus and the Offering Memorandum as owned by it, free and clear of
any pledge, lien, security interest, charge, encumbrance, claim, equitable
interest, or restriction, (ii) the agreements to which the Company is a party
are valid agreements, enforceable by and against the Company in accordance with
their terms, except as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles, 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 agreements and
(iii) the Company has valid and enforceable leases for the properties described
in the Prospectus and the Offering Memorandum as leased by it, and such leases
conform in all material respects to the description thereof, if any, set forth
in the Registration Statement;
(N) There is not pending or, to the best of the Company's
knowledge, threatened, any action, suit, claim, proceeding or investigation
against the Company or any of its officers or any of its properties, assets or
rights before any court or governmental agency or body or otherwise which might
result in a Material Adverse Effect or prevent consummation of the transactions
contemplated hereby, or would limit, revoke, cancel, suspend, or cause not to
be renewed any existing license, certificate, registration, approval or permit,
known to such counsel, from any state, federal, or regulatory authority that is
material to the conduct of the business of the Company as presently conducted,
or that is of a character otherwise required to be disclosed in the
Registration Statement or the Prospectus under the Act or the applicable Rules
and Regulations;
(O) To the best of such counsel's knowledge, except as set
forth in the Registration Statement and Prospectus, no holders of shares of
Common Stock or other securities of the Company have registration rights with
respect to securities of the Company and, except as set forth in the
Registration Statement and Prospectus, all holders of securities of the Company
have registration rights with respect to shares of Common Stock or other
securities have, with respect to the offering contemplated hereby,
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waived such rights or such rights have otherwise been waived or such rights
have expired by reason of lapse of time following notification of the Company's
intent to file the Registration Statement.
(P) No transfer taxes are required to be paid in connection
with the sale or delivery to the Underwriters of the Firm Shares or the Option
Shares;
(Q) The Company is not, and, upon the issuance and sale of
the Shares and application of the net proceeds from such issuance and sale as
described in the Prospectus under the caption "Use of Proceeds" will not be, an
"investment company," or a "promoter" or "principal underwriter" for a
registered investment company, as such terms are defined in the Investment
Company Act of 1940, as amended;
In addition, such counsel shall include a statement to the effect that such
counsel has participated in conferences with officials and other
representatives of the Company, the Representatives, Underwriters' Counsel and
the independent public accountants of the Company, at which conferences the
contents of the Registration Statement, the Prospectus and the Offering
Memorandum and related matters were discussed, and although they have not
verified the accuracy or completeness of the statements contained in the
Registration Statement, the Prospectus or the Offering Memorandum, nothing has
come to the attention of such counsel which caused them to believe that, at the
time the Registration Statement became effective the Registration Statement
(except as to financial statements, financial and statistical data and
supporting schedules contained therein, 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 not misleading, or at the Closing Date or any later Option
Closing Date, as the case may be, the Registration Statement, the Prospectus or
the Offering Memorandum (except as aforesaid) 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, in light of the
circumstances under, which they were made, not misleading.
Counsel rendering the foregoing may rely as to questions of
fact upon representations or certificates of officers of the Company and of
governmental officials, as the case may be, in which case its opinion is to
state that it is so doing and that it has no actual knowledge of any material
misstatement or inaccuracy in such opinions, representations or certificates,
and that they believe that they and the Underwriters are justified in relying
on such opinions or certificates. Copies of any opinion, representation or
certificate so relied upon shall be delivered to you, as Representatives of the
Underwriters, and to Underwriters' Counsel.
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APPENDIX B
OPINION OF COUNSEL TO THE SELLING SHAREHOLDERS
[ ], counsel to the Selling Shareholders, shall opine to the
effect that:
(A) This Agreement has been duly authorized, executed and
delivered by or on behalf of each of the Selling Shareholders;
(B) The execution and delivery by each of the Selling
Shareholders of, and the performance by each such Selling Shareholder of its
obligations under, this Agreement, the Custody Agreement and the Power of
Attorney will not result in (i) any violation of the Selling Shareholder's
organizational documents, (ii) the breach or violation of any of the terms and
provisions, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement, bond, debenture, note agreement or other evidence of
indebtedness, or any lease, contract or other agreement or instrument to which
the Selling Stockholder is a party or by which its properties are bound, (iii)
the breach or violation of any federal, or, to the best of our knowledge, local
statute, rule or regulation; provided however, that no opinion need be rendered
concerning state securities or Blue Sky laws, or (d) to the best of such
counsel's knowledge, the breach or violation of any judgment, order, writ or
decree of any government, arbitrator, court, regulatory body or administrative
agency, or other governmental agency or body having jurisdiction over the
Selling Stockholder of any of its properties or operations;
(C) No authorization, approval or consent of any regulatory
body or administrative agency or other governmental agency or body is necessary
in connection with the performance of this Agreement and consummation of the
transactions herein contemplated by the Selling Shareholders, except such as
have been obtained under the Act or such as may be required under state or
other securities or Blue Sky laws in connection with the purchase and the
distribution of the shares by the Underwriters;
(D) Each of the Underwriters who has purchased Seller Shares
(assuming they have purchased such shares in good faith and without notice of
any adverse claim within the meaning of the applicable Uniform Commercial
Code), upon payment for such Seller Shares, has received good and valid title
to such Seller Shares, free and clear of any security interests, claims, liens,
and encumbrances created or imposed by, or in favor of, the Underwriters; and
(E) Each of the Custody Agreement and the Power of Attorney
has been duly authorized, executed and delivered by or on behalf of each
Selling Stockholder and is a valid and binding agreement of each Selling
Stockholder, enforceable in accordance with its terms except as to (i) rights
to indemnity and contribution hereunder which may be limited by applicable law,
(ii) bankruptcy and laws relating to the rights and remedies of creditors
generally, and (iii) the availability of equitable remedies.
Counsel rendering the foregoing opinion may rely as to questions of act upon
representations or certificates of the Selling Shareholders or officers of the
Selling Shareholders in which case its opinion is to state that it is doing so
and that it has no knowledge of any material misstatement or inaccuracy in such
41
opinions, representations or certificate. Copies of any opinion, representation
or certificate so relied upon shall be delivered to you, as Representatives of
the Underwriters, and to the Underwriters' counsel.
