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EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
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VITECH AMERICA, INC.
0000 Xxxxxxxxx 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
UNDERWRITING AGREEMENT
________, 2000
Xxxxxx Xxxxxxx & Associates, Inc.
As Representative of the Several Underwriters
Named in Schedule I hereto
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
VITECH AMERICA, INC., a Florida corporation (the "Company"), proposes
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") pursuant to this Underwriting Agreement (the "Agreement"), an
aggregate of _______ shares of Common Stock, no par value per share (the "Common
Stock"). In addition, the Company proposes to grant to the Underwriters the
option referred to in Section 2(b) to purchase all or any part of an aggregate
of _________ additional shares of Common Stock. The aggregate of ________ shares
of Common Stock, together with all or any part of the ________ shares of Common
Stock which the Underwriters have the option to purchase are herein called the
"Shares." The Shares and the Representative's Warrant (as that term is defined
in Section 12 herein) and the shares of Common Stock issuable pursuant to the
exercise of the Representative's Warrant are herein collectively called the
"Securities."
You have advised the Company that you desire to purchase the Shares,
and that you have been authorized to execute this Agreement as representative of
the Underwriters (the "Representative"). The Company confirms the agreements
made by it with respect to the purchase of the Shares by you, as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to, and agrees with, each
Underwriter that:
(a) A registration statement (File No. 333-36018) on Form S-1
relating to the public offering of the Shares, including a preliminary form of
prospectus, copies of which have heretofore been delivered to you, 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 under the Act. "Preliminary
Prospectus" shall mean each prospectus filed pursuant to Rule 430 of the Rules
and Regulations. The registration statement (including all financial schedules
and exhibits) as amended at the time it becomes effective and the final
prospectus included therein are respectively referred to as the "Registration
Statement" and the "Prospectus," except that (i) if the prospectus first filed
by the Company pursuant to Rule 424(b) or Rule 430A of the Rules and Regulations
or otherwise
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utilized and not required to be so filed shall differ from said prospectus as
then amended, the term "Prospectus" shall mean the prospectus first filed
pursuant to Rule 424(b) or Rule 430A or so utilized from and after the date on
which it shall have been filed or utilized, and (ii) if such registration
statement or prospectus is amended or such prospectus is supplemented, after the
effective date of such registration statement (the "Effective Date")and prior to
the Option Closing Date (as defined in Section 2(b)), the term "Registration
Statement" shall include such registration statement as so amended, and the term
"Prospectus" shall include the prospectus as so amended or supplemented, or
both, as the case may be.
(b) At the time the Registration Statement becomes effective
and at all times subsequent thereto up to the Option Closing Date (hereinafter
defined), (i) the Registration Statement and Prospectus will in all material
respects conform to the requirements of the Act and the Rules and Regulations;
and (ii) neither the Registration Statement nor the Prospectus 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
in light of the circumstances under which they were made; provided, however,
that the Company does not make representations, warranties or agreements as to
information contained in or omitted from the Registration Statement or
Prospectus in reliance upon, and in conformity with, written information
furnished to the Company by you or on behalf of any Underwriter through you
specifically for use in the preparation thereof. It is understood that the
statements set forth in the Prospectus with respect to the selling commission
set forth on the cover page of the Prospectus, the material set forth under the
heading "Underwriting" and the identity of counsel to the Underwriters under the
heading "Legal Matters" constitute the only information furnished in writing by
you, or by any Underwriter through you, for inclusion in the Registration
Statement and Prospectus, as the case may be.
(c) Each of the Company and each of its subsidiaries has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the State of Florida, with full power and authority (corporate
and other) to own its properties and conduct its business as described in the
Prospectus and is duly qualified to do business as a foreign corporation and is
in good standing in all other jurisdictions in which the nature of its business
or the character or location of its properties requires such qualification,
except where failure to so qualify is not reasonably likely to materially
adversely affect the Company's and its subsidiaries' business, properties or
financial condition.
(d) The authorized capital stock of the Company as of the
Effective Date was as set forth under "Capitalization" in the Prospectus. The
shares of issued and outstanding capital stock of the Company set forth
thereunder have been duly authorized, validly issued and are fully paid and
non-assessable, have been issued in compliance with all federal and state
securities laws and were not issued in violation of any preemptive rights or
other rights to subscribe for or purchase securities; except as set forth in the
Prospectus, no options, warrants or other rights to purchase, agreements or
other obligations to issue, or agreements or other rights to convert any
obligation into, any shares of capital stock of the Company have been granted or
entered into by the Company. The Securities conform in all material respects to
all statements relating thereto contained in the Registration Statement and
Prospectus.
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(e) All the issued and outstanding capital stock of each of
the Company's subsidiaries has been duly authorized and validly issued and is
fully paid and nonassessable, and was not issued in violation of or subject to
any preemptive right, or other rights to subscribe for or 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, and is owned of record and beneficially,
as of the date hereof, and will be owned of record and beneficially at or prior
to the closing of the issuance of the Shares, by the Company free and clear of
any pledge, lien, security interest, encumbrance, claim or equitable interest;
and no preemptive right, co-sale right, registration right, right of first
refusal or other similar right of stockholders exists with respect to any shares
of the Company's subsidiaries. There are no outstanding rights, warrants or
options to acquire, or instruments convertible into or exchangeable for, any
shares of capital stock or other equity interest in any of the Company's
subsidiaries. Except as described in the Registration Statement and the
Prospectus or as may be restricted by the terms and provisions of any credit or
loan facility to which the Company or any of its subsidiaries is a party and
which is described in the Registration Statement and the Prospectus, or by
relevant state law with respect to the need for sufficient surplus, none of the
Company's subsidiaries is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on its
capital stock, or from transferring any of the property or assets of any such
subsidiary to the Company.
(f) The Shares are duly authorized and, when issued, delivered
and paid for pursuant to this Agreement, will be duly authorized, validly
issued, fully paid and nonassessable and free of preemptive rights of any
security holder of the Company. The certificates evidencing the Shares are in
valid and proper legal form. The Representative's Warrant will be exercisable
for shares of Common Stock of the Company in accordance with the terms of the
Representative's Warrant and at the price therein provided for. The shares of
Common Stock have been duly authorized and reserved for issuance upon such
exercise, and such shares, when issued upon such exercise in accordance with the
terms of the Representative's Warrant and when the exercise price is paid, shall
be fully paid and non-assessable. Neither the filing of the Registration
Statement nor the offering or sale of the Securities as contemplated in this
Agreement gives rise to any rights, other than those which have been waived or
satisfied, for or relating to the registration of any securities of the Company,
except as described in the Registration Statement.
(g) This Agreement and the Representative's Warrant have been
duly and validly authorized, executed and delivered by the Company, as
applicable, and assuming due execution by the other party or parties hereto and
thereto, constitute valid and binding obligations of the Company enforceable
against the Company in accordance with their respective terms, except as rights
to indemnity and contribution hereunder may be limited by applicable law and
except as enforceability may be limited by bankruptcy, insolvency or other laws
affecting the rights of creditors generally or by general equitable principles.
The Company has full power and lawful authority to authorize, issue and sell the
Securities to be sold by it hereunder on the terms and conditions set forth
herein, and no consent, approval, authorization or other order of any
governmental authority is required in connection with such authorization,
execution and
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delivery or with the authorization, issue and sale of the Securities, except
such as may be required under the Act or state securities laws.
(h) Except as described in the Prospectus, neither the Company
nor any of its subsidiaries is in material violation, breach or default of or
under, and consummation of the transactions herein contemplated and the
fulfillment of the terms of this Agreement and the Representative's Warrant will
not conflict with, or result in a breach of, any of the terms or provisions of,
or constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance pursuant to the terms of, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which either
the Company or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries may be bound or to which any of the property or assets of
the Company or any of its subsidiaries are subject, which would result in a
material change in the condition (financial or otherwise), business prospects,
net worth or properties of the Company or any of its subsidiaries, nor will such
action result in any violation of the provisions of the certificate of
incorporation or the by-laws of the Company or any of its subsidiaries, or any
statute or any order, rule or regulation applicable to the Company or any of its
subsidiaries of any court or of any regulatory authority or other governmental
body having jurisdiction over the Company or any of its subsidiaries, which
would have a material adverse effect on the condition (financial or otherwise),
business prospects, net worth or properties of the Company or any of its
subsidiaries.
(i) The Company and each of its subsidiaries has good and
marketable title in fee simple to all real property and has good and marketable
title to all personal properties and assets described in the Prospectus as owned
by them, free and clear of all liens, charges, encumbrances or restrictions,
except such as are not materially significant or important in relation to its
business; all of the leases and subleases under which the Company or any of its
subsidiaries is the lessor or sublessor of properties or assets or under which
the Company or any of its subsidiaries holds properties or assets as lessee or
sublessee as described in the Prospectus are in full force and effect, and,
except as described in the Prospectus, neither the Company nor any of its
subsidiaries is in default in any respect with respect to any of the terms or
provisions of any of such leases or subleases which would have a material
adverse effect on the condition (financial or otherwise), business prospects,
net worth or properties of the Company or any of its subsidiaries, and no claim
has been asserted by anyone adverse to rights of the Company or any of its
subsidiaries as lessor, sublessor, lessee or sublessee under any of the leases
or subleases mentioned above, or affecting or questioning the right of the
Company or any of its subsidiaries to continued possession of the leased or
subleased premises or assets under any such lease or sublease except as
described or referred to in the Prospectus, which would have a material adverse
effect on the condition (financial or otherwise), business prospects, net worth
or properties of the Company or any of its subsidiaries; and each of the Company
and its subsidiaries owns or leases all such properties described in the
Prospectus as are necessary to its operations as now conducted and, except as
otherwise stated in the Prospectus, as proposed to be conducted as set forth in
the Prospectus.
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(j) Xxxxxxx Xxxx Xxxxxxx PC, who have given their report on
certain financial statements filed and to be filed with the Commission as a part
of the Registration Statement, which are included in the Prospectus, are
independent public accountants as required by the Act and the Rules and
Regulations.
(k) The financial statements and schedules, together with
related notes, set forth in the Prospectus or the Registration Statement present
fairly the financial position and results of operations and changes in financial
position of the Company and its subsidiaries on the basis stated in the
Registration Statement, at the respective dates and for the respective periods
to which they apply. Said statements and schedules and related notes have been
prepared in accordance with generally accepted accounting principles applied on
a basis which is consistent during the periods involved.
(l) Subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus, neither the Company nor
any of its subsidiaries has incurred any liabilities or obligations, direct or
contingent, not in the ordinary course of business, or entered into any
transaction not in the ordinary course of business, which is material to the
business of the Company and its subsidiaries, and there has not been any change
in the capital stock of, or any incurrence of long-term debt by, the Company and
any of its subsidiaries or any issuance of options, warrants or other rights to
purchase the capital stock of the Company and any of its subsidiaries or any
adverse change or any development involving, so far as the Company and any of
its subsidiaries can now reasonably foresee, a prospective adverse change in the
condition (financial or otherwise), net worth, results of operations, business,
key personnel or properties of it which would be material to the business or
financial condition of the Company and any of its subsidiaries, and neither the
Company nor any of its subsidiaries has become party to, and neither the
business nor the property of the Company and any of its subsidiaries has become
the subject of, any material litigation whether or not in the ordinary course of
business.
(m) Except as set forth in the Prospectus, there is not now
pending nor, to the knowledge of the Company, threatened, any action, suit or
proceeding (including those related to environmental matters or discrimination
on the basis of age, sex, religion or race) to which the Company or any of its
subsidiaries is a party before or by any court or governmental agency or body,
which, if adversely determined, would have a material adverse effect on the
condition (financial or otherwise), business prospects, net worth or properties
of the Company and its subsidiaries; and, except as set forth in the Prospectus,
no labor disputes involving the employees of the Company or any of its
subsidiaries exist which, if adversely determined, would have a material adverse
effect on the condition (financial or otherwise), business prospects, net worth
or property of the Company and its subsidiaries.
(n) Except as disclosed in the Prospectus, each of the Company
and its subsidiaries has filed all necessary federal, state and foreign income
and franchise tax returns and has paid all taxes shown as due thereon; and there
is no tax deficiency which has been or to the knowledge of the Company might be
asserted against the Company or any of its subsidiaries which has not been
adequately reserved for on the Company's consolidated balance sheet.
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(o) Each of the Company and its subsidiaries has sufficient
licenses, permits and other governmental authorizations currently required for
the conduct of its business or the ownership of its property as described in the
Prospectus and is in all material respects complying therewith and owns or
possesses adequate rights to use all material patents, patent applications,
trademarks, xxxx registrations, copyrights and licenses necessary for the
conduct of such business and has not received any notice of conflict with the
asserted rights of others in respect thereof. To the best knowledge of the
Company, none of the activities or business of the Company or any of its
subsidiaries is in violation of, or causes the Company or any of its
subsidiaries to violate, any law, rule, regulation or order of the United
States, any state, county or locality, or of any agency or locality, the
violation of which would have a material adverse effect on the condition
(financial or otherwise), business prospects, net worth or properties of the
Company and its subsidiaries.
(p) Neither the Company nor any of its subsidiaries has
directly or indirectly, at any time (i) made any contributions to any candidate
for foreign political office, or if made, failed to disclose fully any such
contribution made in violation of law, or (ii) made any payment to any state,
federal or foreign governmental officer or official, or other person charged
with similar public or quasi-public duties, other than payments or contributions
required or allowed by applicable law. The Company's and its subsidiaries'
internal accounting controls and procedures are sufficient to cause the Company
and its subsidiaries to comply in all material respects with the Foreign Corrupt
Practices Act of 1977, as amended.
(q) On the Closing Dates (as defined in Section 2(c)), all
transfer or other taxes (including franchise, capital stock or other tax, other
than income taxes imposed by any jurisdiction), if any, which are required to be
paid in connection with the sale and transfer of the Shares to the Underwriters
hereunder will have been fully paid or provided for by the Company, and all laws
imposing such taxes will have been fully complied with.
(r) All contracts and other documents of the Company and its
subsidiaries which are, under the Rules and Regulations, required to be filed as
exhibits to the Registration Statement have been so filed.
(s) Neither the Company nor any of its subsidiaries has taken
or will take, directly or indirectly, any action designed to cause or result in,
or which has constituted or which might reasonably be expected to constitute,
the stabilization or manipulation of the price of the Shares or to facilitate
the sale or resale of the Shares.
(t) (Except for this Agreement and other agreements with the
Representative, the Company has not entered into any agreement pursuant to which
any person is entitled either directly or indirectly to compensation from the
Company for services as a finder in connection with the proposed public
offering.
(u) The Shares have been approved for quotation on the Nasdaq
National Market.
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(v) Except for such rights which have been waived or
satisfied, no holder of securities of the Company has any rights to the
registration of securities of the Company because of the filing of the
Registration Statement or otherwise in connection with the sale of the Shares
contemplated hereby.
(w) The Company is not, and upon consummation of the
transactions contemplated hereby will not be, subject to registration as an
"investment company" under the Investment Company Act of 1940.
(x) Each of the Company and its subsidiaries (i) is in
compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous 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 respective business and (iii) is in compliance with all terms and conditions
of any such permit, license or approval, except where such noncompliance,
failure to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or approvals will
not in the aggregate have a material adverse effect on the condition (financial
or otherwise), business prospects, net worth or properties of the Company and
its subsidiaries.
(y) Each employee benefit plan, within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), that is maintained, administered or contributed to by the Company or
any of its subsidiaries for employees or former employees of the Company or any
of its subsidiaries has been maintained in compliance with its respective terms
and the requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Internal Revenue Code of 1986, as
amended (the "Code"). No prohibited transaction, within the meaning of Section
406 of ERISA or Section 4975 of the Code, has occurred with respect to any such
plan, excluding transactions effected pursuant to a statutory or administrative
exemption. For each such plan that is subject to the funding rules of Section
412 of the Code or Section 302 of ERISA, no "accumulated funding deficiency," as
defined in Section 412 of the Code, has been incurred, whether or not waived,
and the fair market value of the assets of each such plan (excluding for these
purposes accrued but unpaid contributions) exceeded the present value of all
benefits accrued under such plan determined using reasonable actuarial
assumptions.
(z) Each of the Company and its subsidiaries maintains a
system of internal accounting controls that, taken as a whole, are sufficient to
provide reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
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(aa) Each of the Company and its subsidiaries maintains
insurance of the types and in the amounts generally deemed adequate for its
respective business, including, without limitation, insurance covering real and
personal property owned or leased by it against theft, damage, destruction, acts
of vandalism and all other material risks customarily insured against, all of
which insurance is in full force and effect. Neither the Company nor any of its
subsidiaries has reason to believe that it will not be able to renew existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its respective
business.
(bb) Each of the Company and its subsidiaries has, owns or
possesses exclusive rights to use all material patents, patent applications,
trademarks, xxxx registrations, copyrights and licenses necessary for the
conduct of its business and has not received any notice of conflict with the
asserted rights of others in respect thereof.
(cc) To the Company's knowledge, there are no affiliations or
associations between any member of the National Association of Securities
Dealers, Inc. ("NASD") and any of the Company's officers, directors or
securityholders, except as set forth in the Registration Statement.
2. PURCHASE, DELIVERY AND SALE OF THE SHARES.
(a) Subject to the terms and conditions of this Agreement, and
upon the basis of the representations, warranties and agreements herein
contained, the Company agrees to issue and sell to the Underwriters, and the
Underwriters agree, severally and not jointly, to buy from the Company at $_____
per Share at the place and time hereinafter specified, the number of Shares set
forth opposite each Underwriter's name in Schedule I hereto (the "Firm Shares").
Delivery of the Firm Shares against payment therefor shall
take place at the offices of Xxxxxx Xxxxxxx & Associates, Inc., 0000 Xxxxx
Xxxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 (or at such other place as
may be designated by agreement between you and the Company) at 10:00 a.m. New
York time on __________________, 2000, or at such other time and date, not later
than five business days thereafter, as you may designate, such time and date of
payment and delivery for the Firm Shares being herein called the "First Closing
Date." Time shall be of the essence and delivery at the time and place specified
in this subsection (a) is a further condition to the obligations of the
Underwriters hereunder.
(b) In addition, subject to the terms and conditions of this
Agreement, and upon the basis of the representations, warranties and agreements
herein contained, the Company hereby grants the Underwriters an option to
purchase all or any part of an aggregate of ________ additional Shares at the
same price per Share as the Underwriters pay for the Firm Shares being sold
pursuant to the provisions of subsection (a) of this Section 2 (such additional
Shares being referred to herein as the "Option Shares"). This option may be
exercised on one occasion within 45 days after the Effective Date upon notice by
you to the Company advising the Company as to the amount of Option Shares as to
which the option is being exercised, the names and
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denominations in which the certificates for such Option Shares are to be
registered and the time and date when such certificates are to be delivered.
Such time and date shall be determined by you but shall not be earlier than four
and not later than five full business days after the exercise of said option,
nor in any event prior to the First Closing Date, and such time and date is
referred to herein as the "Option Closing Date." Delivery of the Option Shares
against payment therefor shall take place at the offices of Xxxxxx Xxxxxxx &
Associates, Inc., 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx
00000. Time shall be of the essence and delivery at the time and place specified
in this subsection (b) is a further condition to the obligations of the
Underwriters hereunder.
The Option granted hereunder may be exercised only to cover
over-allotments in the sale by the Underwriters of Firm Shares referred to in
subsection (a) above.
(c) The Company will make the certificates for the Shares to
be purchased by the Underwriters hereunder available to you for checking at
least two full business days prior to the First Closing Date or the Option
Closing Date (which are collectively referred to herein as the "Closing Dates"
and individually as a "Closing Date"), as the case may be. The certificates
shall be in such names and denominations as you may request, at least two full
business days prior to the relevant Closing Dates. Time shall be of the essence
and the availability of the certificates at the time and place specified in this
Agreement is a further condition to the obligations of the Underwriters.
Definitive certificates in negotiable form for the Shares to
be purchased by the Underwriters hereunder will be delivered by the Company to
you for the several accounts of the Underwriters against payment of the purchase
price by you, at your option, by certified or bank cashier's checks in New York
Clearing House funds or by wire transfer, payable to the order of the Company.
In addition, in the event the Underwriters exercise the option
to purchase from the Company all or any portion of the Option Shares pursuant to
the provisions of subsection (b) above, payment for such Option Shares shall be
made to or upon the order of the Company by you, for the several accounts of the
Underwriters at your option, by certified or bank cashier's checks payable in
New York Clearing House funds or by wire transfer, at the offices of Xxxxxx
Xxxxxxx & Associates, Inc. at the time and date of delivery of such Option
Shares as required by the provisions of subsection (b) above, against receipt of
the certificates for such Option Shares by you, for the several accounts of the
Underwriters registered in such names and in such denominations as you may
request.
It is understood that the Underwriters propose to offer the
Shares to be purchased hereunder to the public upon the terms and conditions set
forth in the Registration Statement, after the Registration Statement becomes
effective.
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3. COVENANTS OF THE COMPANY.
The Company covenants and agrees with the Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement to become effective and, upon notification from the Commission that
the Registration Statement has become effective, will so advise you and will not
at any time, whether before or after the Effective Date, file any amendment to
the Registration Statement or supplement to the Prospectus of which you shall
not previously have been advised and furnished with a copy or to which you or
your counsel shall have reasonably objected in writing or which is not in
compliance with the Act and the Rules and Regulations. At any time prior to the
later of (A) the completion by you of the distribution of the Shares
contemplated hereby (but in no event more than nine months after the Effective
Date) and (B) 25 days after the Effective Date, the Company will prepare and
file with the Commission, promptly upon your request, any amendments or
supplements to the Registration Statement or Prospectus which, in your
reasonable opinion, may be necessary or advisable in connection with the
distribution of the Shares.
Promptly after either you or the Company is advised thereof, you will
advise the Company or the Company will advise you, as the case may be, and
confirm the advice in writing, of the receipt of any comments of the Commission,
of the effectiveness of any post-effective amendment to the Registration
Statement, of the filing of any supplement to the Prospectus or any amended
Prospectus, of any request made by the Commission for amendment of the
Registration Statement or for supplementing of the Prospectus or for additional
information with respect thereto, of the issuance by the Commission or any state
or regulatory body of any stop orders or other order suspending the
effectiveness of the Registration Statement or any order preventing or
suspending the use of any preliminary prospectus or the Prospectus, or of the
suspension of the qualification of the Shares for offering in any jurisdiction,
or the institution of any proceedings for any of such purposes, and will use its
best efforts to prevent the issuance of any such order and, if issued, to obtain
as soon as possible the lifting thereof.
The Company has caused to be delivered to you copies of each
Preliminary Prospectus, and the Company has consented and hereby consents to the
use of such copies for the purposes permitted by the Act. The Company authorizes
the Underwriters and selected dealers to use the Prospectus in connection with
the sale of the Shares for such period not to exceed nine months from the
Effective Date as in the reasonable opinion of counsel for you the use thereof
is required to comply with the applicable provisions of the Act and the Rules
and Regulations. In case of the happening, at any time within such period as a
Prospectus is required under the Act to be delivered in connection with sales by
an underwriter or dealer, of any event of which the Company has knowledge and
which materially affects the Company or the Securities, or which in the opinion
of counsel for the Company or counsel for the Underwriters should be set forth
in an amendment to the Registration Statement or a supplement to the Prospectus
in order to make the statements therein not then misleading, in light of the
circumstances existing at the time the Prospectus is required to be delivered to
a purchaser of the Shares, or in case it shall be necessary to amend or
supplement the Prospectus to comply with the Act or with the Rules and
Regulations, the Company will notify you promptly and forthwith prepare and
furnish to you
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copies of such amended Prospectus or of such supplement to be attached to the
Prospectus, in such quantities as you may reasonably request, in order that the
Prospectus, as so amended or supplemented, will not contain any untrue statement
of a material fact or omit to state any material facts necessary in order to
make the statements in the Prospectus, in the light of the circumstances under
which they are made, not misleading. The preparation and furnishing of any such
amendment or supplement to the Registration Statement or amended Prospectus or
supplement to be attached to the Prospectus shall be without expense to the
Underwriters, except that in case the Underwriters are required, in connection
with the sale of the Shares, to deliver a Prospectus nine months or more after
the Effective Date, the Company will upon request of and at your expense, amend
or supplement the Registration Statement and Prospectus and furnish the
Underwriters with reasonable quantities of prospectuses complying with Section
10(a)(3) of the Act.
(b) The Company will comply with the Act, the Rules and Regulations and
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and the
rules and regulations thereunder in connection with the offering and issuance of
the Shares.
The Company will use its best efforts to qualify or register the
Securities for sale under the securities or "blue sky" laws of such
jurisdictions as you may have designated in writing prior to the execution
hereof and will make such applications and furnish such information to counsel
for the Underwriters as may be required for that purpose and to comply with such
laws, provided that the Company shall not be required to qualify as a foreign
corporation or a dealer in securities or to execute a general consent to service
of process in any jurisdiction. The Company will, from time to time, prepare and
file such statements and reports as are or may be required to continue such
qualification in effect for so long a period as you may reasonably request.
Legal fees for such qualifications shall be itemized based on the time expended
and costs incurred, shall be reasonable and shall not in any event exceed
$30,000.00, exclusive of filing fees.
(c) The Company will instruct its transfer agent to provide you with
copies of the Depository Trust Company ("DTC") stock transfer sheets on a weekly
basis for a period of six months from the First Closing Date and on a monthly
basis thereafter for six additional months.
(d) The Company will use its best efforts to cause a Registration
Statement under the Exchange Act to be declared effective on the Effective Date.
(e) For so long as the Company is a reporting company under either
Section 12(g), 13 or 15(d) of the Exchange Act, the Company, at its expense,
will furnish to its stockholders an annual report (including financial
statements audited by independent public accountants), in reasonable detail and
at its expense, will furnish to you during the period ending five years from the
date hereof, (i) as soon as practicable after the end of each fiscal year, a
balance sheet of the Company and any subsidiaries as at the end of such fiscal
year, together with statements of income, stockholders' equity and cash flows of
the Company and any subsidiaries as at the end of such fiscal year, all in
reasonable detail and accompanied by a copy of the certificate or report thereon
of independent accountants; (ii) as soon as they are available, a copy of all
reports (financial or other) mailed to security holders; (iii) as soon as they
are available, a copy of all
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non-confidential reports and financial statements furnished to or filed with the
Commission; and (iv) such other information of a public nature as you may from
time to time reasonably request.
(f) In the event the Company has an active subsidiary or subsidiaries,
such financial statements referred to in subsection (e) above will be on a
consolidated basis to the extent the accounts of the Company and its subsidiary
or subsidiaries are consolidated in reports furnished to its stockholders
generally.
(g) The Company will deliver to you at or before the First Closing Date
one signed copy of the Registration Statement including all financial statements
and exhibits filed therewith, and of all amendments thereto. The Company will
deliver to or upon your order, from time to time until the Effective Date as
many copies of any Preliminary Prospectus filed with the Commission prior to the
Effective Date as the Underwriters may reasonably request. The Company will
deliver to you on the Effective Date and thereafter for so long as a Prospectus
is required to be delivered under the Act, from time to time, as many copies of
the Prospectus, in final form, or as thereafter amended or supplemented, as the
Underwriters may from time to time reasonably request.
(h) The Company will make generally available to its security holders
and deliver to you as soon as it is practicable to do so, but in no event later
than 90 days after the end of 12 months after its current fiscal quarter, an
earnings statement (which need not be audited) covering a period of at least 12
consecutive months beginning after the Effective Date which shall satisfy the
requirements of Section 11(a) of the Act.
(i) The Company will apply the net proceeds from the sale of the Shares
substantially for the purposes set forth under "Use of Proceeds" in the
Prospectus, and will file such reports with the Commission with respect to the
sale of the Shares and the application of the proceeds therefrom as may be
required pursuant to Rule 463 of the Rules and Regulations.
(j) The Company will, promptly upon your request, prepare and file with
the Commission any amendments or supplements to the Registration Statement,
preliminary Prospectus or Prospectus and take any other action, which in the
opinion of Xxxxxxxxxxx & Xxxxxxxx LLP, counsel to you, may be reasonably
necessary or advisable in connection with the distribution of the Shares and
will use its best efforts to cause the same to become effective as promptly as
possible.
(k) Prior to the Effective Date, the Company will cause the Company's
stockholders, option holders, convertible security holders, warrant holders,
directors, executive officers and persons beneficially owning at least 7,945,934
shares of Common Stock to enter into a written agreement with the
Representative, which, among other things, shall provide that for a period of
one hundred eighty (180) days following the Effective Date such persons will not
sell, assign, hypothecate or pledge any of the shares of Common Stock of the
Company owned by them on the Effective Date, or subsequently acquired by the
exercise of any options or warrants or conversion of any convertible security of
the Company held by them on the Effective Date directly or indirectly, except
for intra-family transfers or transfers for estate planning purposes,
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without your prior written consent, which consent may be withheld in your sole
discretion and such stockholders will permit all certificates evidencing those
shares to be stamped with an appropriate restrictive legend, and will cause the
transfer agent for the Company to note such restrictions on the transfer books
and records of the Company.
(l) The Company shall, upon the initial filing of the Registration
Statement, make all filings required to obtain approval for the inclusion of the
Shares for quotation on the Nasdaq National Market and will use its best efforts
to effect concurrently with the effectiveness of the Registration Statement and
maintain the aforesaid approval for at least five (5) years from the date of
this Agreement. Within ten (10) days after the Effective Date, the Company shall
cause the Company to be listed in the Xxxxx'x OTC Industrial Manual and cause
such listing to be maintained for five years from the date of this Agreement.
(m) The Company represents that it has not taken, and agrees that it
will not take, directly or indirectly, any action designed to or which has
constituted or which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of the Shares or to facilitate the
sale or resale of the Securities.
(n) Except in connection with acquisitions or pursuant to the
conversion of convertible securities outstanding prior to the Closing Date or
pursuant to the exercise of warrants and options outstanding prior to the
Closing Date, during the period of the offering, and for a period of 12 months
from the Effective Date, the Company will not (i) sell or otherwise dispose of
any securities of the Company (except for shares reserved for issuance under the
Company's 1996 Stock Option Plan) or (2) purchase any shares of capital stock of
the Company, without your prior written consent, which consent may be withheld
in your sole discretion. For a period of twelve (12) months from the Effective
Date, the Company will not issue, sell or otherwise dispose of any securities of
the Company pursuant to Regulation S under the Act without your prior written
consent.
(o) The Company shall retain a public relations firm acceptable to you,
and shall continue to retain such firm, or any alternate firm acceptable to you,
for a minimum period of twelve (12) months.
(p) The Company will reserve and keep available that maximum number of
its authorized but unissued securities which are issuable upon exercise of the
Representative's Warrant outstanding from time to time.
(q) The Company shall deliver to you, at the Company's expense, three
(3) bound volumes in form and content acceptable to you, containing the
Registration Statement and all exhibits filed therewith, and all amendments
thereto, and all other material correspondence, filings, certificates and other
documents filed and/or delivered in connection with this offering. The Company
shall use its best efforts to deliver such volumes with six (6) months of the
First Closing Date.
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4. CONDITIONS OF OBLIGATIONS OF XXXXXX XXXXXXX & ASSOCIATES, INC.
The obligations of the Underwriters to purchase and pay for the Shares
which they have agreed to purchase hereunder are subject to the accuracy (as of
the date hereof, and as of the Closing Dates) of and compliance with the
representations and warranties of the Company herein, to the performance by the
Company of its obligations hereunder, and to the following conditions:
(a) The Registration Statement shall have become effective and
you shall have received notice thereof not later than 5:00 p.m., New York time,
on the date of this Agreement, or at such later time or on such later date as to
which you may agree in writing; on the Closing Dates, no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceedings for that or any similar purpose shall have been instituted or shall
be pending or, to the knowledge of any Underwriter or to the knowledge of the
Company, shall be contemplated by the Commission; any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of Xxxxxxxxxxx & Xxxxxxxx LLP, counsel to you; and no
stop order shall be in effect denying or suspending effectiveness of the
Registration Statement nor shall any stop order proceedings with respect thereto
be instituted or pending or threatened under the Act.
(b) At the First Closing Date, you shall have received the
opinion, dated as of the First Closing Date, of Atlas, Xxxxxxxx, P.A., counsel
for the Company, in form and substance reasonably satisfactory to counsel for
you, to the effect that:
(i) each of the Company and its subsidiaries has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation or organization and is
duly qualified or licensed to do business as a foreign corporation in good
standing in each other jurisdiction in which the ownership or leasing of its
properties or the conduct of its business requires such qualification, except
where failure to so qualify will not have a material adverse effect on the
condition (financial or otherwise), business prospects, net worth or properties
of the Company and its subsidiaries. The Company has the corporate power to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this Agreement,
and the Representative's Warrant; each of the Company's subsidiaries has the
corporate power to own, lease and operate its properties and to conduct its
business as described in the Prospectus; and the Company does not own or
control, directly or indirectly, any corporation, association or other entity
other than __________.
(ii) the authorized capitalization of the Company as
of the date of the Prospectus was as set forth in the Prospectus; all of the
shares of the Company's outstanding stock requiring authorization for issuance
by the Company's Board of Directors have been duly authorized and validly
issued, are fully paid and non-assessable and conform to the description thereof
contained in the Prospectus; the outstanding shares of Common Stock of the
Company have not been issued in violation of the preemptive rights of any
stockholder and the
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stockholders of the Company do not have any preemptive rights or other rights to
subscribe for or to purchase; there are no restrictions upon the voting or
transfer of, any of the Shares; the Common Stock, and the Representative's
Warrant conform in all material respects to the respective descriptions thereof
contained in the Prospectus; the Shares to be issued as contemplated in the
Registration Statement and this Agreement have been duly authorized and, when
paid, will be validly issued, fully paid and non-assessable and free of
preemptive rights contained in the Company's certificate of incorporation or
by-laws, or any other document, instrument or agreement known to counsel; a
sufficient number of shares of Common Stock has been reserved for issuance upon
exercise of the Representative's Warrant; neither the filing of the Registration
Statement nor the offering or sale of the Securities as contemplated by this
Agreement gives rise to any registration rights or other rights, other than
those contemplated by the Representative's Warrant or which have been waived or
satisfied, for or relating to the registration of the Securities; all the issued
and outstanding shares of capital stock of each of the Company's subsidiaries
are owned of record and beneficially by the Company, free and clear of any
security interests, liens, encumbrances, equities or other claims and there are
no outstanding rights, warrants or options to acquire, or instruments
convertible into or exchangeable for, any shares of capital stock or other
equity interest in any of the Company's subsidiaries.
(iii) this Agreement and the Representative's Warrant
have been duly and validly authorized, executed and delivered by the Company,
and assuming due execution and delivery by you of this Agreement and the
Representative's Warrant, all of such agreements are, or when duly executed will
be, the valid and legally binding obligations of the Company except as
enforceability may be limited by bankruptcy, insolvency, moratorium or other
laws affecting the rights of creditors, or by general equitable principles;
provided that no opinion need be expressed as to the enforceability of the
indemnity provisions contained in Section 6 or the contribution provisions
contained in Section 7 of this Agreement;
(iv) the certificates evidencing the Shares are in
valid and proper legal form; the Representative's Warrant will be exercisable
for shares of Common Stock of the Company in accordance with the terms of the
Representative's Warrant and at the price therein provided for; the shares of
Common Stock of the Company issuable upon exercise of the Representative's
Warrant have been duly authorized and reserved for issuance upon such exercise,
and such shares, when issued upon such exercise in accordance with the terms of
the Representative's Warrant and when the price is paid shall be fully paid and
non-assessable;
(v) Such counsel knows of no pending or threatened
legal or governmental proceedings to which the Company or any of its
subsidiaries is a party which are required to be described or referred to in the
Registration Statement which are not so described or referred to;
(vi) The execution and delivery of this Agreement and
the Representative's Warrant and the incurrence of the obligations herein and
therein set forth and the consummation of the transactions herein or therein
contemplated will not result in a violation of, or constitute a default under,
the certificate of incorporation or by-laws of the Company or any of its
subsidiaries, or in a violation of or default under any obligation, agreement,
covenant
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or condition contained in any bond, debenture, note or other evidence of
indebtedness or in any of the contracts, indentures, mortgages, loan agreements,
leases, joint ventures or other agreements or instruments to which the Company
or any of its subsidiaries is a party that are filed as Exhibits to the
Registration Statement or otherwise known to counsel;
(vii) The Registration Statement has become effective
under the Act, and to such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement is in effect, no proceedings for
that purpose have been instituted or are pending before, or threatened by, the
Commission and the Registration Statement and the Prospectus (except, in the
case of both the Registration Statement and any Amendment thereto, and the
Prospectus and any supplement thereto for the financial statements and notes and
schedules thereto, and other financial information or statistical data contained
therein, or omitted therefrom, as to which such counsel need express no opinion)
comply as to form in all material respects with the applicable requirements of
the Act and the Rules and Regulations;
(viii) All descriptions in the Registration Statement
and the Prospectus, and any amendment or supplement thereto, of contracts,
plans, options and other documents are accurate and fairly present the
information required to be shown, and such counsel is familiar with all
contracts and other documents referred to in the Registration Statement and the
Prospectus and any such amendment or supplement, or filed as exhibits to the
Registration Statement, and such counsel does not know of any contracts or
documents of a character required to be summarized or described therein or to be
filed as exhibits thereto which are not so summarized, described or filed;
(ix) No authorization, approval, consent or license
of any governmental or regulatory authority or agency is necessary in connection
with the authorization, issuance, transfer, sale or delivery of the Securities
by the Company, in connection with the execution, delivery and performance of
this Agreement or the Representative's Warrant by the Company or in connection
with the taking of any action contemplated herein or therein, or the issuance of
the Representative's Warrant or the shares of Common Stock underlying the
Representative's Warrant, other than registration or qualification of the
Securities under applicable state or foreign securities or blue sky laws (as to
which such counsel need express no opinion) and registration under the Act; and
(x) The statements in the Registration Statement
under the captions "Stock Option Plans" and "Description of Securities," to the
extent that such statements constitute a matter of law or legal conclusion have
been reviewed by such counsel and are correct in all material respects; and
(xi) To such counsel's knowledge, neither the Company
nor any of its subsidiaries is presently in violation of its respective charter
or by-laws, or in breach or default under any lease, instrument, license, permit
or any other agreement to which the Company or any of its subsidiaries is bound
or to which any property or assets of the Company or any of its subsidiaries is
the subject, where the consequences of such violation, breach or default would
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have a material adverse effect on the condition (financial or otherwise),
business prospects, net worth or properties of the Company and its subsidiaries;
(xii) The Common Stock has been approved for listing
on the Nasdaq National Market.
(xiii) Neither the Company nor any of its
subsidiaries is, nor will they be after
receipt of payment for the Shares be an "investment company" within the meaning
of Investment Company Act.
(xiv) Except as disclosed in the Prospectus under the
caption "Shares Eligible for Future Sale," to the best knowledge of such
counsel, there are no persons with registration or other similar rights to have
any equity or debt securities registered for sale under the Registration
Statement or included in the offering contemplated by this Agreement.
(xv) To the best knowledge of such counsel, neither
the Company nor any of its subsidiaries is not in violation of its charter or
by-laws or any law, administrative regulation or administrative or court decree
applicable to the Company or any of its subsidiaries or is in default in the
performance and observance of any obligation, agreement, covenant or condition
contained in any material existing instrument, except in each such case for such
violations or defaults as would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise), business
prospects, net worth or properties of the Company and its subsidiaries.
Such counsel has participated in the preparation of
the Registration Statement and the Prospectus and although such counsel has not
reviewed the accuracy or completeness of the statements contained in the
Registration Statement or Prospectus nothing has come to the attention of such
counsel that caused such counsel to believe that the Registration Statement or
any amendment thereto at the time it became effective contained 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 or
that the Prospectus or any supplement thereto contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make
statements therein in light of the circumstances under which they were made not
misleading (except, in the case of both the Registration Statement and any
amendment thereto and the Prospectus and any supplement thereto, for the
financial statements, notes and schedules thereto and other financial
information and statistical data contained therein, as to which such counsel
need express no opinion);
In rendering such opinion, such counsel may rely upon certificates of
any officer of the Company or public officials as to matters of fact; and in
rendering such opinion may rely as to all matters of law other than the law of
the United States or of the State of Florida upon opinions of counsel
satisfactory to you, in which case the opinion shall state that they have no
reason to believe that you and they are not entitled to so rely.
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(c) All corporate proceedings and other legal matters relating
to this Agreement, the Registration Statement, the Prospectus, and other related
matters shall be reasonably satisfactory to or approved by Xxxxxxxxxxx &
Xxxxxxxx LLP, counsel to the Underwriters, and you shall have received from such
counsel a signed opinion, dated as of the First Closing Date, with respect to
the validity of the issuance of the Shares, the form of the Registration
Statement and Prospectus (other than the financial statements and other
financial data contained therein), the execution of this Agreement and other
related matters as you may reasonably require. The Company shall have furnished
to counsel for the Underwriters such documents as they may reasonably request
for the purpose of enabling them to render such opinion.
(d) You shall have received a letter on and as of the
Effective Date and again on and as of the First Closing Date, in each instance
describing procedures carried out to a date within five (5) days of the date of
the letter, from Xxxxxxx Xxxx Xxxxxxx PC, independent public accountants for the
Company, substantially in the form approved by you.
(e) At each of the Closing Dates, (i) the representations and
warranties of the Company contained in this Agreement shall be true and correct
with the same effect as if made on and as of such Closing Date, and the Company
shall have performed all of its obligations hereunder and satisfied all the
conditions on its part to be satisfied at or prior to such Closing Date; (ii)
the Registration Statement and the Prospectus and any amendments or supplements
thereto shall contain all statements which are required to be stated therein in
accordance with the Act and the Rules and Regulations, and shall in all material
respects conform to the requirements thereof, and neither the Registration
Statement nor the Prospectus nor any amendment or supplement thereto shall
contain any untrue statements 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 in light of the circumstances under which they were made; (iii)
there shall have been, since the respective dates as of which information is
given, no material adverse change in the business, properties, condition
(financial or otherwise), results of operations, capital stock, long-term or
short-term debt or general affairs of the Company from that set forth in the
Registration Statement and the Prospectus, except changes which the Registration
Statement and Prospectus indicate might occur after the Effective Date and the
Company shall not have incurred any material liabilities nor entered into any
agreement not in the ordinary course of business other than as referred to in
the Registration Statement and Prospectus; and (iv) except as set forth in the
Prospectus, no action, suit or proceeding at law shall be pending or threatened
against the Company which would be required to be disclosed in the Registration
Statement, and no proceedings shall be pending or threatened against the Company
before or by any commission, board or administrative agency in the United States
or elsewhere, wherein an unfavorable decision, ruling or finding would
materially and adversely affect the business, property, condition (financial or
otherwise), results of operations or general affairs of the Company. In
addition, you shall have received, at the First Closing Date, a certificate
signed by the President and the principal financial or accounting officer of the
Company, dated as of the First Closing Date, evidencing compliance with the
provisions of this subsection (e).
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(f) Upon exercise of the option provided for in Section 2(b)
hereof, the obligations of the several Underwriters to purchase and pay for the
Option Shares referred to therein will be subject (as of the date hereof and as
of the Option Closing Date) to the following additional conditions:
(i) The Registration Statement shall remain effective
at the Option Closing Date, no stop order suspending the effectiveness thereof
shall have been issued, and no proceedings for that purpose shall have been
instituted or shall be pending, or, to your knowledge or the knowledge of the
Company, shall be contemplated by the Commission, and any reasonable request on
the part of the Commission for additional information shall have been complied
with to the reasonable satisfaction of Xxxxxxxxxxx & Xxxxxxxx LLP, counsel to
the Underwriters.
(ii) At the Option Closing Date there shall have been
delivered to you the signed opinion of Atlas, Xxxxxxxx, P.A., counsel for the
Company dated as of the Option Closing Date, in form and substance reasonably
satisfactory to Xxxxxxxxxxx & Xxxxxxxx, LLP, counsel to the Underwriters, which
opinion shall be substantially the same in scope and substance as the opinion
furnished to you at the First Closing Date pursuant to Section 4(b) hereof,
except that such opinion, where appropriate, shall cover the Option Shares
rather than the Firm Shares. If the First Closing Date is the same as the Option
Closing Date, such opinions may be combined.
(iii) At the Option Closing Date, there shall have
been delivered to you a certificate of the President and the principal financial
or accounting officer of the Company dated the Option Closing Date, in form and
substance reasonably satisfactory to Xxxxxxxxxxx & Xxxxxxxx LLP, counsel to the
Underwriters, substantially the same in scope and substance as the certificates
furnished to you at the First Closing Date pursuant to Section 4(f) hereof.
(iv) At the Option Closing Date, there shall have
been delivered to you a letter in form and substance satisfactory to you from
Xxxxxxx Xxxx Xxxxxxx PC, dated the Option Closing Date and addressed to you,
confirming the information in their letter referred to in Section 4(d) hereof as
of the date thereof and stating that, without any additional investigation
required, nothing has come to their attention during the period from the ending
date of their review referred to in said letter to a date not more than five (5)
days prior to the Option Closing Date which would require any change in said
letter if it were required to be dated the Option Closing Date.
(v) All proceedings taken at or prior to the Option
Closing Date in connection with the sale and issuance of the Option Shares shall
be reasonably satisfactory in form and substance to you, and you and Xxxxxxxxxxx
& Xxxxxxxx LLP, counsel to the Underwriters, shall have been furnished with all
such documents and certificates as you may request in connection with this
transaction in order to evidence the accuracy and completeness of any of the
representations, warranties or statements of the Company and its compliance with
any of the covenants or conditions contained therein.
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(g) If any of the conditions herein provided for in this
Section shall not have been completely fulfilled as of the date indicated, this
Agreement and all obligations of the Underwriters under this Agreement may be
canceled at, or at any time prior to, each Closing Date by your notifying the
Company of such cancellation in writing or by telegram at or prior to the
applicable Closing Date. Any such cancellation shall be without liability of any
Underwriter to the Company except as otherwise provided herein.
5. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligation of the Company to sell and deliver the Shares is subject
to the following conditions:
(a) The Registration Statement shall have become effective not
later than 5:00 p.m. New York time, on the date of this Agreement, or on such
later date or time as you and the Company may agree in writing.
(b) On the Closing Dates, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the Act
or any proceedings therefor initiated or threatened by the Commission.
If the conditions to the obligations of the Company, provided for in
this Section have been fulfilled on the First Closing Date but are not fulfilled
after the First Closing Date and prior to the Option Closing Date, then only the
obligation of the Company to sell and deliver the Option Shares on exercise of
the option provided for in Section 2(b) hereof shall be affected.
6. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE UNDERWRITERS. The Company agrees to
indemnify and hold harmless each Underwriter, its officers and employees, and
each person, if any, who controls any Underwriter within the meaning of the
Securities Act and the Exchange Act against any loss, claim, damage, liability
or expense, as incurred, to which such Underwriter or such controlling person
may become subject, under the Securities Act, the Exchange Act or other federal
or state statutory law or regulation, or at common law or otherwise (including
in settlement of any litigation, if such settlement is effected with the written
consent of the Company), insofar as such loss, claim, damage, liability or
expense (or actions in respect thereof as contemplated below) arises out of or
is based (i) upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or any amendment thereto,
including any information deemed to be a part thereof pursuant to Rule 430A or
Rule 434 under the Securities Act, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading; or (ii) upon any untrue statements or alleged
untrue statement of a material fact contained in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; or (iii) in whole or in part upon any inaccuracy in the
representations and warranties of the Company contained herein, or (iv) in
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whole or in part upon any failure of the Company to perform its obligations
hereunder or under law, or (v) any act or failure to act or any alleged act or
failure to act by any Underwriter in connection with, or relating in any manner
to, the Shares or the offering contemplated hereby, and which is included as
part of or referred to in any loss, claim, damage, liability or action arising
out of or based upon any matter covered by clause (i) or (ii) above, PROVIDED
that the Company shall not be liable under this clause (v) to the extent that a
court of competent jurisdiction shall have determined by a final judgment that
such loss, claim, damage, liability or action resulted directly from any such
acts or failures to act undertaken or omitted to be taken by such Underwriter
through its bad faith or willful misconduct; and to reimburse each Underwriter
and each such controlling person for any and all expenses (including the fees
and disbursements of counsel chosen by Xxxxxx Xxxxxxx & Associates, Inc.) as
such expenses are reasonably incurred by such Underwriter or such controlling
person in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action; PROVIDED,
HOWEVER, that the foregoing indemnity agreement shall not apply to any loss,
claim, damage, liability or expense to the extent, but only to the extent,
arising out of or based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in reliance upon and in conformity with
written information furnished to the Company by the Representative expressly for
use in the Registration Statement, any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto); AND PROVIDED, FURTHER, that with
respect to any preliminary prospectus, the foregoing indemnity agreement shall
not inure to the benefit of any Underwriter from whom the person asserting any
loss, claim, damage, liability or expense purchased Shares, or any person
controlling such Underwriter, if copies of the Prospectus were timely delivered
to the Underwriter pursuant to the provision hereunder and a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Shares to such
person, and if the Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such loss, claim, damage, liability or expense. The
indemnity agreement set forth in this Section 6(a) shall be in addition to any
liabilities that the Company may otherwise have.
(b) INDEMNIFICATION OF THE COMPANY AND ITS DIRECTORS AND
OFFICERS. Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act, against
any loss, claim, damage, liability or expense, as incurred to which the Company
or any such director, officer or controlling person may become subject, under
the Securities Act, the Exchange Act, or other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such
Underwriter), insofar as such loss, claim, damage, liability or expense (or
actions in respect thereof as contemplated below) arises out of or is based upon
any untrue or alleged untrue statement of a material fact contained in the
Registration Statement, any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto, or arises out of or is based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but
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only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, any
preliminary prospectus, the Prospectus (or any amendment or supplement thereto),
in reliance upon and in conformity with written information furnished to the
Company by the Representative expressly for use therein; and to reimburse the
Company, or any such director, officer or controlling person for any legal and
other expense reasonably incurred by the Company, or any such director, officer
or controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action. The Company hereby acknowledges that the only information that the
Underwriters have furnished to the Company expressly for use in the Registration
Statement, any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) are the statements set forth with respect to the selling
commission set forth on the cover page of this Prospectus, the material set
forth under the heading "Underwriting" in the Prospectus and the identity of
counsel to the Underwriters under the heading "Legal Matters"; and the
Underwriters confirm that such statements are correct. The indemnity agreement
set forth in this Section 6(b) shall be in addition to any liabilities that each
Underwriter may otherwise have.
(c) NOTIFICATIONS AND OTHER INDEMNIFICATION PROCEDURES.
Promptly after receipt by an indemnified party under this Section 6 of notice of
the commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party under this Section
6, notify the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party for contribution or
otherwise than under the indemnity agreement contained in this Section 6 or to
the extent it is not prejudiced as a proximate result of such failure. In case
any such action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the
indemnifying party will be entitled to participate in, and, to the extent that
it shall elect, jointly with all other indemnifying parties similarly notified,
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party; PROVIDED,
HOWEVER, if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that a conflict may arise between the positions of the indemnifying
party and the indemnified party in conducting the defense of any such action or
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of such indemnifying party's election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 6 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the provisions to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel (together with local
counsel),
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approved by the indemnifying party (Xxxxxx Xxxxxxx & Associates, Inc., in the
case of Section 6(b) and Section 7), representing the indemnified parties who
are parties to such action) or (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action, in each of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying party.
(d) SETTLEMENTS. The indemnifying party under this Section 6
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party against any loss, claim, damage, liability or expense by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by Section 6(c) hereof, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or
consent includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action, suit or
proceeding.
7. CONTRIBUTION.
If the indemnification provided for in Section 6 is for any reason held
to be unavailable to or otherwise insufficient to hold harmless an indemnified
party of any losses, claims, damages, liabilities or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
paid or payable by such indemnified party, as incurred, as a result of any
losses, claims, damages, liabilities or expenses referred to therein (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriters, on the other hand, from the
offering of the Shares pursuant to this Agreement or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company, on the one
hand, and the Underwriters, on the other hand, in connection with the statements
or omissions or inaccuracies in the representations and warranties herein which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received by
the Company, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Shares pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of the Shares pursuant to this Agreement (before deducting
expenses) received by the Company, and the total underwriting discount received
by
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the Underwriters, in each case as set forth on the front cover page of the
Prospectus bear to the aggregate initial public offering price of the Shares as
set forth on such cover. The relative fault of the Company, on the one hand, and
the Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact or any such
inaccurate or alleged inaccurate representation or warranty relates to
information supplied by the Company, on the one hand, or the Underwriters, on
the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 6(c), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in
Section 6(c) with respect to notice of commencement of any action shall apply if
a claim for contribution is to be made under this Section 7; PROVIDED, HOWEVER,
that no additional notice shall be required with respect to any action for which
notice has been given under Section 6(c) for purposes of indemnification.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 7.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the underwriting commissions
received by such Underwriter in connection with the Shares underwritten by it
and distributed to the public. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 9 are several, and not joint, in proportion to their respective
underwriting commitments as set forth opposite their names in Schedule I. For
purposes of this Section 7, each officer and employee of an Underwriter and each
person, if any, who controls an Underwriter within the meaning of the Securities
Act and the Exchange Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company with the meaning of the Securities Act and the Exchange Act shall have
the same rights to contribution as the Company.
8. COSTS AND EXPENSES.
(a) Whether or not this Agreement becomes effective or the
sale of the Shares to the Underwriters is consummated, the Company will pay all
costs and expenses incident to the performance of this Agreement by the Company,
including but not limited to the fees and expenses of counsel to the Company and
of the Company's accountants; the costs and expenses incident to the
preparation, printing, filing and distribution under the Act of the Registration
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Statement (including the financial statements therein and all amendments and
exhibits thereto), each Preliminary Prospectus and the Prospectus, as amended or
supplemented, the fee of the NASD in connection with the filing required by the
NASD relating to the offering of the Shares contemplated hereby; all expenses,
including reasonable fees (but not in excess of the amount set forth in Section
3(b)) and disbursements of counsel to the Underwriters, in connection with the
qualification of the Shares under the State Securities or Blue Sky Laws which
you shall designate; the cost of printing and furnishing to you copies of the
Registration Statement, each Preliminary Prospectus, the Prospectus, this
Agreement, and the Blue Sky Memorandum; the cost of printing the certificates
representing the Securities, costs of any luncheons, functions, special expenses
and all road show costs and expenses, the expenses of Company due diligence
meetings and presentations, (but not of any Underwriter or Underwriter's counsel
in connection therewith); DTC Trading Service; and the cost of preparing bound
volumes as set forth in Section 3(q) hereof; the expense of placing one or more
"tombstone" advertisements in the national edition of the Wall Street Journal as
directed by you and such other expenses for advertising undertaken at the
Company's request, including graphic slide costs. In addition, the Company shall
also pay for a background search of its officers and management, and if so
requested by you, the expense of the preparation of an Internet-based road show.
The Company shall pay any and all taxes (including any transfer, franchise,
capital stock or other tax imposed by any jurisdiction) on sales to the
Underwriters hereunder. The Company will also pay all costs and expenses
incident to the furnishing of any amended Prospectus or of any supplement to be
attached to the Prospectus as called for in Section 3(a) of this Agreement
except as otherwise set forth in said Section.
(b) In addition to the foregoing expenses, the Company shall
at the First Closing Date pay to you the balance of a non-accountable expense
allowance 2.0% of the gross proceeds of the offering, of which a portion has
been paid. In the event the over-allotment option is exercised in part or in
full, the Company shall pay to you at the Option Closing Date an additional
amount equal to 2.0% of the gross proceeds received upon exercise of the over
allotment option. In the event the transactions contemplated hereby are not
consummated for any reason, the Company shall be liable for your actual
accountable out-of-pocket expenses (with credit given to the amount heretofore
paid), including legal fees. If the contemplated transactions are not
consummated by reason of breach by the Company of this Agreement or of any
representation, warranty, covenant or condition contained herein, the Company
shall be liable for your accountable out-of-pocket expenses.
(c) No person is entitled either directly or indirectly to
compensation from the Company, from any Underwriter or from any other person for
services as a finder in connection with the proposed offering, and the Company
agrees to indemnify and hold harmless each Underwriter, and the Underwriters
agree to indemnify and hold harmless, severally and not jointly, the Company
from and against any losses, claims, damages or liabilities, joint or several
(which shall, for all purposes of this Agreement, include, but not be limited
to, all reasonable costs of defense and investigation and all reasonable
attorneys' fees), to which the indemnified party may become subject insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon the claim of any person (other than an employee
of the party claiming indemnity) or entity that he or it is entitled to a
finder's fee in connection with
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the proposed offering by reason of such person's or entity's influence or prior
contact with the indemnifying party.
9. DEFAULT OF ONE OR MORE OF THE SEVERAL UNDERWRITERS.
If, on the First Closing Date or the Option Closing Date, as the case
may be, any one or more of the several Underwriters fail or refuse to purchase
Shares that it or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriters agreed but failed
or refused to purchase does not exceed 10% of the aggregate number of the Shares
to be purchased on such date, the other Underwriters shall be obligated,
severally, in the proportions that the number of Firm Shares set forth opposite
their respective names on Schedule I bears to the aggregate number of Firm
Shares set forth opposite the names of all such non-defaulting Underwriters, or
in such other proportions as may be specified by the Representatives with the
consent of the non-defaulting Underwriters, to purchase the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date. If, on the First Closing Date or the Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase Shares and the aggregate number of Shares with respect to which such
default occurs exceeds 10% of the aggregate number of Shares to be purchased on
such date, and arrangements satisfactory to the Representative and the Company
for the purchase of such Shares are not made within 48 hours after such default,
this Agreement shall terminate without liability of any party to any other party
except that the provisions of Section 6, Section 7 and Section 8 shall at all
times be effective and shall survive such termination. In any such case either
the Representative or the Company shall have the right to postpone the First
Closing Date or the Option Closing Date, as the case may be, but in no event for
longer than seven days in order that the required changes, if any, to the
Registration Statement and the Prospectus or any other document or arrangements
may be effected.
As used in this Agreement, the term "Underwriter" shall be deemed to
include any person substituted for a defaulting Underwriter under this Section
9. Any action taken under this Section 9 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
10. EFFECTIVE DATE.
The Agreement shall become effective upon its execution, except that
you may, at your option, delay its effectiveness until the earlier to occur of
10:00 A.M., New York time on the first full business day following the Effective
Date as you in your discretion shall first commence the initial public offering
by you of any of the Shares. The time of the initial public offering shall mean
the time of release by you of the first newspaper advertisement with respect to
the Shares, or the time when the Shares are first generally offered by you to
dealers by letter or telecopier, whichever shall first occur. This Agreement may
be terminated by you at any time before it becomes effective as provided above,
except that Sections 6, 7, 8, 13, 14, 15 and 16 shall remain in effect
notwithstanding such termination.
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11. TERMINATION.
(a) This Agreement, except for Sections 6, 7, 8, 13, 14, 15
and 16, may be terminated at any time prior to the First Closing Date, and the
option referred to in Section 2(b), if exercised, may be canceled, at any time
prior to the Option Closing Date, by you if in your judgment it is impracticable
to offer for sale or to enforce contracts made by you for the resale of the
Shares agreed to be purchased hereunder, by reason of (i) the Company having
sustained a material loss, whether or not insured, by reason of fire,
earthquake, flood, accident or other calamity, or from any labor dispute or
court or government action, order or decree, (ii) trading in securities on the
New York Stock Exchange or the American Stock Exchange having been suspended or
limited, (iii) material governmental restrictions having been imposed on trading
in securities generally which are not in force and effect on the date hereof,
(iv) a banking moratorium having been declared by federal of New York State
authorities, (v) an outbreak of major international hostilities or other
national or international calamity having occurred, (vi) the passage by the
Congress of the United States or by any state legislative body of similar
impact, of any act or measure, or the adoption of any orders, rules or
regulations by any governmental body or any authoritative accounting institute
or board, or any governmental executive, which is reasonably believed likely by
you to have a material adverse impact on the business, financial condition or
financial statements of the Company, (vii) any material adverse change in the
financial or securities markets beyond normal fluctuations in the United States
having occurred since the date of this Agreement, or (viii) any material adverse
change having occurred, since the respective dates for which information is
given in the Registration Statement and Prospectus, in the earnings, business,
prospects or general condition of the Company, (financial or otherwise), whether
or not arising in the ordinary course of business.
(b) If you elect to prevent this Agreement from becoming
effective or to terminate this Agreement as provided in this Section 11 or in
Section 9, the Company shall be promptly notified by you, by telephone or
facsimile transmission, confirmed by letter.
12. REPRESENTATIVE'S WARRANT.
On the First Closing Date, the Company will issue to you, for a
consideration of $______ and upon the terms and conditions set forth in the form
of Representative's Warrant (the "Representative's Warrant"), annexed as an
exhibit to the Registration Statement, the Representative's Warrant to purchase
__________ Shares. In the event of conflict in the terms of this Agreement and
the Representative's Warrant, the language of the Representative's Warrant shall
control.
13. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
The respective indemnities, agreements, representations, warranties and
other statements of the Company and you, set forth in or made pursuant to this
Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of the Underwriters, the Company or any of its officers or
directors or any controlling persons and will survive delivery of and payment
for the Shares and the termination of this Agreement.
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14. NOTICE.
All communications hereunder will be in writing and, except as
otherwise expressly provided herein, if sent to any Underwriter, will be mailed,
delivered or telecopied and confirmed to it at Xxxxxx Xxxxxxx & Associates,
Inc., 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000, with a
copy sent to Xxxxxx X. Xxxxxxx, Esq. at Xxxxxxxxxxx & Xxxxxxxx LLP, 0000
Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx Xxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000, of if
sent to the Company, will be mailed, delivered, or facsimiled and confirmed to
Vitech America, Inc., 0000 Xxxxxxxxx 00xx Xxxxx, Xxxxx, Xxxxxxx 00000, with a
copy sent to Xxxx X. Xxxxxxxxx, Esq. at Altas, Pearlman, P.A., 000 Xxxx Xxx Xxxx
Xxxx., Xxxxx 0000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000.
15. PARTIES IN INTEREST.
The Agreement herein set forth is made solely for the benefit of the
Underwriters, the Company and, to the extent expressed, any person controlling
the Company, or any Underwriter, and directors of the Company, nominees for
directors of the Company (if any) named in the Prospectus, the officers of the
Company who have signed the Registration Statement, and their respective
executors, administrators, successors and assigns, and no other person shall
acquire for have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, as such purchaser,
from any Underwriter of the Shares.
16. APPLICABLE LAW.
This Agreement will be governed by, and construed in accordance with,
the laws of the State of Florida applicable to agreements made and to be
entirely performed within Florida.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return this Underwriting Agreement, whereupon it will
become a binding agreement between the Company and the Underwriters in
accordance with its terms.
Very truly yours,
VITECH AMERICA, INC.
Dated: ___________, 2000 By:
--------------------------------
Xxxxxxx X. St. Laurent
President
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The foregoing Underwriting Agreement is hereby confirmed and accepted
as of the date first above written.
XXXXXX XXXXXXX & ASSOCIATES, INC.
Dated: ___________, 2000 By:
--------------------------------
Authorized Officer
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SCHEDULE I
Underwriting Agreement dated ____________, 2000
Number of Firm Shares
Underwriter to be Purchased
----------- ---------------------
Xxxxxx Xxxxxxx & Associates, Inc.
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