EXHIBIT 1.1
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6,900,000 Shares
U.S. HOME & GARDEN INC.
Common Stock
UNDERWRITING AGREEMENT
November __, 1997
EVEREN Securities, Inc.
&
Xxxxxxxxxx Xxxx & Xxxx Incorporated
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6,900,000 Shares
U.S. HOME & GARDEN INC.
Common Stock
UNDERWRITING AGREEMENT
November __, 1997
EVEREN Securities, Inc.
Xxxxxxxxxx Xxxx & Xxxx Incorporated
As Representatives of
the Several Underwriters
c/o EVEREN Securities, Inc.
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
U.S. Home & Garden Inc., a Delaware corporation (the "Company"), and
the stockholders of the Company set forth on Schedule I hereto (collectively
referred to as the "Selling Stockholders"), confirm their agreement with each
other and the several underwriters listed in Schedule II hereto (the
"Underwriters"), for whom EVEREN Securities, Inc. and Xxxxxxxxxx Xxxx & Xxxx
Incorporated (collectively, the "Representatives") have been duly authorized to
act as representatives, as follows:
1. The Shares. Subject to the terms and conditions set forth in this
agreement (the "Agreement"), the Company proposes to issue and sell Five Million
(5,000,000) shares of its authorized but unissued Common Stock, $.001 par value
(the "Common Stock"), to the several Underwriters, and the Selling Stockholders
propose to sell an aggregate of One Million (1,000,000) shares of issued and
outstanding Common Stock to the several Underwriters in the
amounts set forth on Schedule I. Such Six Million (6,000,000) shares of Common
Stock proposed to be sold by the Company and the Selling Stockholders are
hereinafter referred to as the "Firm Shares." The Company also proposes to grant
to the Underwriters an option to purchase up to Nine Hundred Thousand (900,000)
additional shares of Common Stock (the "Additional Shares") if requested by the
Underwriters as provided in Section 3 hereof. The Firm Shares and the Additional
Shares are herein collectively called the "Shares."
The Company and each of the Selling Stockholders hereby
confirm their respective agreements with the Underwriters as follows:
2. Registration Statement and Prospectus. The Company has prepared and
duly filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 (File No. 333-___) including a
prospectus, relating to the Shares. To the extent the registration statement has
been amended, each such amendment has been prepared and duly filed with the
Commission. The registration statement, as amended, at the time when it became
or becomes effective, including all financial schedules and exhibits thereto and
all of the information (if any) deemed to be part of the registration statement
at the time of its effectiveness pursuant to Rule 430A under the Act ("Rule
430A"), is hereinafter referred to as the "Registration Statement"; the
prospectus in the form first provided to the Underwriters by the Company in
connection with the offering and sale of the Shares (whether or not required to
be filed pursuant to Rule 424(b) under the Act ("Rule 424(b)")) is hereinafter
referred to as the "Prospectus," except that if any revised prospectus shall be
provided to the Underwriters by the Company for use in connection with the
offering of the Shares that differs from the Prospectus (whether or not any such
revised prospectus is required to be filed by the Company pursuant to Rule
424(b) under the Act), the term "Prospectus" shall refer to the revised
prospectus from and after the time it is first provided to the Underwriters for
such use. Each preliminary prospectus included in the Registration Statement
prior to the time it became or becomes effective is herein referred to as a
"Preliminary Prospectus."
3. Agreements to Sell and Purchase. On the basis of the representations
and warranties contained in this Agreement, and subject to the terms and
conditions hereof: (i) the Company agrees to issue and sell to the Underwriters,
at a price of $_____ per Share (the "Purchase Price"), Five Million (5,000,000)
newly issued Firm Shares; (ii) each Selling Stockholder agrees to sell to the
Underwriters, at the Purchase Price, the number of Firm Shares set forth next to
such Selling Stockholder's name on Schedule I; and (iii) each Underwriter
agrees, severally and not jointly, to purchase from the Company and the Selling
Stockholders, at the Purchase Price, the aggregate number of Firm Shares set
forth opposite the name of such Underwriter in Schedule II hereto. The number of
Firm Shares to be purchased by each Underwriter from the Company and each
Selling Stockholder shall be as nearly as practicable in the same proportion as
the number of Firm Shares being sold by the Company and each Selling Stockholder
bears to the total number of Firm Shares to be sold hereunder.
On the basis of the representations and warranties contained
in this Agreement, and subject to the terms and conditions hereof, (i) the
Company agrees to sell to the
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Underwriters, at the Purchase Price, up to Nine Hundred Thousand (900,000)
Additional Shares; and (ii) the Underwriters shall have the right to purchase,
severally and not jointly, from time to time (subject to the last sentence of
Section 4(b)), up to an aggregate of Nine Hundred Thousand (900,000) Additional
Shares at the Purchase Price. Additional Shares may be purchased as provided in
Section 4 hereof solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Shares. If any Additional Shares are to
be purchased, each Underwriter, severally and not jointly, agrees to purchase
the number of Additional Shares (subject to such adjustments to eliminate
fractional shares as the Representatives may determine) that bears the same
proportion to the total number of Additional Shares to be purchased as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule II bears to the total number of Firm Shares.
The Company covenants and agrees that it will not (other than
in connection with the transactions expressly contemplated by this Agreement),
directly or indirectly, (1) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise issue any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock, (2) enter into any swap or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of any shares of
Common Stock, whether any such transaction described in clauses (1) or (2) above
is to be settled by delivery of shares of Common Stock or other securities, in
cash or otherwise, or (3) file any registration statement relating to any of the
foregoing on behalf of itself or any other person, for a period of 180 days
after the date of the Prospectus, without the prior written consent of EVEREN
Securities, Inc. on behalf of the Underwriters. The restrictions set forth in
the immediately preceding sentence shall not apply to: (i) grants of options
pursuant to the Company's Non-Employee Director Stock Option Plan, as in effect
on the date of the Prospectus (the "Director Plan"); (ii) the filing of any
registration statement on Form S-8 relating to shares of Common Stock issuable
upon exercise of options outstanding on the date hereof and described as such in
the Prospectus under the Company's 1991, 1995, 1997 Stock Option Plans and the
Director Plan (collectively, the "Stock Option Plans"); (iii) the filing of any
registration statement on Form S-3 relating to the potential sale of 100,000
shares of Common Stock issuable upon exercise of options and warrants granted
outside of the Stock Option Plans that expire during such 180-day period; and
(iv) the issuance of shares of Common Stock or options, warrants or rights to
purchase shares of Common Stock solely in connection with the acquisition by the
Company of lawn and garden companies or product lines; provided, however, that
no registration statement on Form S-4 or any other registration statement
relating to such issuance may be filed during such 180-day period without the
prior written consent of EVEREN Securities, Inc. on behalf of the Underwriters,
such consent not to be unreasonably withheld.
Each Selling Stockholder covenants and agrees that it will not
(other than in connection with the transactions expressly contemplated by this
Agreement or in connection with transfers of Common Stock to partnerships,
limited liability companies or trusts organized for the exclusive benefit of
family members of such Selling Stockholders, which partnerships, limited
liability companies or trust shall have first expressly agreed in writing to be
bound by the terms of this paragraph), directly or indirectly, (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
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purchase, or otherwise transfer or dispose of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, or
(2) enter into any swap or other agreement that transfers, in whole or in part,
any of the economic consequences of ownership of any shares of Common Stock,
whether any such transaction described in clauses (1) or (2) above is to be
settled by delivery of shares of Common Stock or other securities, in cash or
otherwise, for a period of 180 days after the date of the Prospectus, without
the prior written consent of EVEREN Securities, Inc. on behalf of the
Underwriters. The restrictions set forth in the immediately preceding sentence
shall not apply to: (i) the estate of the Selling Stockholder in the event such
Selling Stockholder dies during such 180-day period; or (ii) the exercise by the
Selling Stockholder of options to purchase shares of Common Stock; provided,
however, that any shares of Common Stock purchased by such Selling Stockholder
upon exercise of such options shall be subject to the restrictions set forth in
the immediately preceding sentence.
4. Agreements of the Company as to Delivery and Payment. The Company
and Selling Stockholders agree with each Underwriter that:
(a) Delivery to the Underwriters of and payment for the Firm
Shares shall be made at 10:00 A.M., New York City time, on the third
full business day (such time and date being referred to as the "Closing
Date") following the date of the initial public offering of the Firm
Shares as advised to you by the Company, at such place as you shall
designate.
(b) Delivery to the Underwriters of and payment for any
Additional Shares to be purchased by the Underwriters shall be made at
such place as the Representatives shall designate, at 10:00 A.M., New
York City time, on such date or dates (individually, an "Option Closing
Date" and collectively, the "Option Closing Dates"), which may be the
same as the Closing Date but shall in no event be earlier than the
Closing Date, as shall be specified in a written notice from the
Representatives to the Company of the Underwriters' determination to
purchase a number, specified in said notice, of Additional Shares. Any
such notice may be given at any time prior to the thirty-first (31st)
day after the date of this Agreement.
(c) Certificates for the Shares shall be registered in such
names and issued in such denominations as you shall request in writing
not later than two business days prior to the Closing Date or the
applicable Option Closing Date, as the case may be, and shall be made
available for inspection not later than 9:30 A.M., New York City time,
on the business day next preceding the Closing Date or the applicable
Option Closing Date, as the case may be, with any transfer taxes
payable upon initial issuance or the transfer thereof duly paid by the
Company for the respective accounts of the Underwriters against payment
of the Purchase Price therefor by certified or official bank check or
checks payable in New York Clearing House or similar next-day funds to
the order of the Company and the Selling Stockholders.
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5. Further Agreements of the Company. The Company also agrees with each
Underwriter that:
(a) it will, if the Registration Statement has not heretofore
become effective under the Act, file an amendment to the Registration
Statement or, if necessary pursuant to Rule 430A under the Act, a
post-effective amendment to the Registration Statement, as soon as
practicable after the execution and delivery of this Agreement, and
will use its best efforts to cause the Registration Statement or such
post-effective amendment to become effective at the earliest possible
time; and the Company will comply fully and in a timely manner with the
applicable provisions of Rule 424(b), Rule 430A and the other rules
under the Act;
(b) it will advise you promptly and, if requested by you,
confirm such advice in writing, (i) when the Registration Statement has
become effective, if and when the Prospectus is sent for filing
pursuant to Rule 424 under the Act and when any post-effective
amendment to the Registration Statement becomes effective, (ii) of the
receipt of any comments from the Commission that relate to the
Registration Statement or requests by the Commission for amendments to
the Registration Statement or amendments or supplements to the
Prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, or of the suspension of qualification of the
Shares for offering or sale in any jurisdiction, or the initiation or,
to the best knowledge of the Company, threat of any proceedings for
such purpose by the Commission or any state securities commission or
other regulatory authority, and (iv) of the happening of any event or
information becoming known during the period referred to in paragraph
(e) below that makes any statement of a material fact made in the
Registration Statement untrue or that requires the making of any
additions to or changes in the Registration Statement (as amended or
supplemented from time to time) in order to make the statements therein
not misleading or that makes any statement of a material fact made in
the Prospectus (as amended or supplemented from time to time) untrue or
that requires the making of any additions to or changes in the
Prospectus (as amended or supplemented from time to time) in order to
make the statements therein, not misleading; if at any time the
Commission shall issue or institute proceedings (or threaten to
institute any such proceedings) to issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue or institute
proceedings (or threaten to institute proceedings) to issue an order
suspending the qualification or exemption of the Shares under any state
securities or Blue Sky laws, the Company shall use its best efforts to
obtain the withdrawal or lifting of such order at the earliest possible
time;
(c) it will furnish to you without charge three signed copies
of the Registration Statement as first filed with the Commission and of
each amendment to it, including all exhibits filed therewith, and will
furnish to you and each Underwriter designated by you such number of
conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits, as you may reasonably request;
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(d) it will not file any amendment or supplement to the
Registration Statement, whether before or after the time when it
becomes effective, or make any amendment or supplement to the
Prospectus of which you shall not previously have been advised and
provided a copy a reasonable period of time prior to the filing thereof
or to which you or your counsel shall reasonably object; and it will
prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement or supplement to
the Prospectus that may be necessary or advisable in connection with
the distribution of the Shares by you in your or your counsel's
opinion, and will use its best efforts to cause the same to become
effective as promptly as possible;
(e) promptly after the Registration Statement becomes
effective, and from time to time thereafter for such period as a
prospectus is required by the Act to be delivered in connection with
the sales by an underwriter or a dealer (in the opinion of your
counsel), it will furnish to each Underwriter and dealer without charge
as many copies of the Prospectus (and any amendment or supplement of
the Prospectus) as such Underwriter or dealer may reasonably request
for the purposes contemplated by the Act; the Company consents to the
use of the Prospectus and any amendment or supplement thereto by any
Underwriter or any dealer, both in connection with the offering or sale
of the Shares and for such period of time thereafter as the Prospectus
is required by the Act to be delivered in connection therewith;
(f) if during the period specified in paragraph (e) any event
shall occur or information become known as a result of which in the
opinion of your counsel it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in light of the
circumstances existing as of the date the Prospectus is delivered to a
purchaser, not misleading, or it is necessary to amend or supplement
the Prospectus to comply with any law, forthwith to prepare and,
subject to paragraph 5(d) above, it will file with the Commission at
the sole expense of the Company an appropriate amendment or supplement
to the Prospectus so that the statements of any material facts in the
Prospectus, as so amended and supplemented, will not in light of the
circumstances when it is so delivered, be misleading, or so that the
Prospectus will comply with law and it will furnish to the Underwriters
and to such dealers as the Underwriters shall specify, at the sole
expense of the Company, such number of copies thereof as such
Underwriters or dealers may reasonably request;
(g) prior to any public offering of the Shares, it will
cooperate with you and counsel for the Underwriters in connection with
the registration or qualification of the Shares for offer and sale by
the several Underwriters and by dealers under the state securities or
Blue Sky laws of such jurisdictions as you may request (provided, that
the Company shall not be obligated to qualify as a foreign corporation
in any jurisdiction in which it is not so qualified or to take any
action which would subject it to general consent to service of process
in any jurisdiction in which it is not now so subject); the Company
will continue such qualification in effect so long as required by law
for the distribution of the Shares and will file such consents to
service of process or other documents as may be necessary in order to
effect such registration or qualification (provided, that the Company
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shall not be obligated to take any action that would subject it to
general consent to service of process in any jurisdiction in which it
is not now so subject);
(h) it will not, prior to the exercise in full or termination
or expiration of the option to purchase the Additional Shares, incur
any liability or obligation, direct or contingent, or enter into any
material transaction, other than in the ordinary course of business,
except as contemplated by the Prospectus;
(i) it will not acquire any capital stock of the Company prior
to the exercise in full or termination or expiration of the option to
purchase the Additional Shares nor will the Company declare or pay any
dividend or make any other distribution upon the Common Stock payable
to stockholders of record on a date prior to the exercise in full or
termination or expiration of the option to purchase the Additional
Shares;
(j) it will mail and make generally available to its security
holders and furnish to the Underwriters as soon as reasonably
practicable a consolidated earnings statement covering a period of at
least 12 months beginning after the "effective date" (as defined in
Rule 158 under the Act) of the Registration Statement (but in no event
commencing later than 90 days after such date) that will satisfy the
provisions of Section 11(a) of the Act and Rule 158 thereunder and to
advise you in writing when such statement has been made so available;
(k) during the period of five years after the date of this
Agreement, it will furnish to you a copy (i) as soon as practicable
after the filing thereof, of each report filed by the Company with the
Commission, any securities exchange or the National Association of
Securities Dealers, Inc. ("NASD"); (ii) as soon as practicable after
the release thereof, of each press release relating to the Company;
(iii) as soon as available, of each report of the Company mailed to
stockholders; and (iv) as soon as available, such other publicly
available information concerning the Company as you may reasonably
request;
(1) whether or not the transactions contemplated hereby are
consummated or this Agreement becomes effective as to all of its
provisions or is terminated, to pay all costs, fees, expenses and taxes
incident to the performance by the Company of its obligations
hereunder, including (i) the preparation, printing, filing and
distribution under the Act of the Registration Statement (including
financial statements and exhibits), each Preliminary Prospectus, the
Prospectus and all amendments and supplements to any of them prior to
or during the period specified in paragraph (e) above of this Section
5, (ii) the word processing, reproduction and distribution of this
Agreement, the Blue Sky Survey and any other agreements, memoranda,
correspondence and other documents prepared and delivered by the
Underwriters or their counsel in connection with the offering of the
Shares (including in each case any disbursements of counsel for the
Underwriters relating to such preparation and delivery), (iii) the
registration or qualification of the Shares for offer and sale under
the securities or Blue Sky laws of the several states, including in
each case the fees and disbursements of counsel for the Underwriters,
relating to such registration or qualification and memoranda relating
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thereto, (iv) filings and clearance with the NASD in connection with
the offering and sale of the Shares, (v) the approval for quotation of
the Shares on the Nasdaq SmallCap Market or Nasdaq National Market,
(vi) furnishing such copies of the Registration Statement, each
Preliminary Prospectus, the Prospectus and all amendments and
supplements thereto as may be requested for use in connection with the
offering or sale of the Shares by the Underwriters or by dealers to
whom the Shares may be sold, (vii) obtaining the opinions to be
provided pursuant to Section 8(g) of this Agreement and (viii) the
performance by the Company of all of its other obligations under this
Agreement; if the sale of the Shares provided for herein is not
consummated because the Underwriters exercise their right to terminate
this Agreement pursuant to Section 9 hereof and any of the following
have occurred during the term of this Agreement: (a) there has been any
material adverse change in the condition (financial or otherwise),
earnings, affairs, business or prospects of the Company, or (b) the
Company or any of the Selling Stockholders shall refuse or be unable to
comply with any provision hereof (except as the result of a breach of
this Agreement by the Underwriters), the Company will promptly
reimburse the Underwriters upon demand for all reasonable out-of-pocket
expenses (including the fees and disbursements of counsel for the
Underwriters) that shall have been incurred by the Underwriters in
connection with the proposed purchase and sale of Shares;
(m) it intends to use the net proceeds received by it from the
sale of the Shares being sold by it in the manner specified in the
Prospectus and it will file such reports with the Commission with
respect to the application of the proceeds therefrom as may be required
in accordance with Rule 463 under the Act and will furnish you copies
of any such reports as soon as practicable after the filing thereof;
(n) if, at the time of effectiveness of the Registration
Statement, any information shall have been omitted therefrom in
reliance upon Rule 430A, then immediately following the execution and
delivery of this Agreement, it will prepare, and file or transmit for
filing with the Commission in accordance with such Rule 430A and Rule
424(b), copies of an amended prospectus, or, if required by such Rule
430A, a post-effective amendment to the Registration Statement
(including an amended prospectus), containing all information so
omitted;
(o) it will cause the Shares to be approved for quotation,
subject to notice of issuance or sale, on the Nasdaq SmallCap Market or
Nasdaq National Market; it will comply with all registration, filing
and reporting requirements of the Securities Exchange Act of 1934, as
amended, (the "Exchange Act") and the Nasdaq SmallCap Market or Nasdaq
National Market; and
(p) it will use its best efforts to do and perform all things
required to be done and performed under this Agreement by it prior to
or after the Closing Date or any Option Closing Date, as the case may
be, and to satisfy all conditions precedent to the delivery of the
Shares; and
(q) in furtherance and not in limitation of the restrictions
set forth in Section 3 of this Agreement, it will not grant any option,
right or warrant to purchase, or otherwise
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issue any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, or make any other award
based on the performance of the Common Stock, including, without
limitation, any issuance of shares of Common Stock, pursuant to the
Stock Option Plans or otherwise (except as may be required pursuant to
the Director Plan, as in effect on the date hereof): (i) during the
fiscal year ending June 30, 1998; or (ii) other than grants of
options, warrants or other rights to purchase no more than 750,000
shares of Common Stock under the Stock Option Plans or otherwise,
during the fiscal year ending June 30, 1999.
6. Representations and Warranties.
(a) The Company represents and warrants, and the Selling
Stockholders, severally and not jointly, represent and warrant, to each
Underwriter as of the date hereof, the Closing Date and each Option
Closing Date that:
(i) the Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus
relating to the proposed offering of the Shares nor instituted
or threatened any proceedings for that purpose. The
Registration Statement, on the date it became or becomes
effective, each Preliminary Prospectus, on the date of the
filing thereof with the Commission, and the Prospectus and any
amendment or supplement thereto, on the date of filing thereof
with the Commission (or if not filed, on the date provided by
the Company to the Underwriters in connection with the
offering and sale of the Shares) and at the Closing Date and
each Option Closing Date conformed or will conform with the
requirements of the Act and the rules and regulations
promulgated thereunder ("Rules and Regulations"); the
Registration Statement, on the date it became or becomes
effective, did not or will not contain an untrue statement of
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; each Preliminary Prospectus, on the date of the
filing thereof with the Commission, and the Prospectus and any
amendment or supplement thereto, on the date of filing thereof
with the Commission (or if not filed, on the date provided by
the Company to the Underwriters in connection with the
offering and sale of the Shares) and at the Closing Date and
each Option Closing Date did not and will not include an
untrue statement of material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading; the foregoing shall not apply
to statements in or omissions from the Registration Statement
and the Prospectus made or omitted in reliance upon, and in
conformity with, information relating to the Underwriters
furnished in writing to the Company by or on behalf of the
Underwriters with your consent expressly for use therein; the
Company and the Selling Stockholders hereby acknowledge for
all purposes under this Agreement that (A) the last paragraph
set forth on the outside front cover page of the Prospectus,
(B) the stabilization and passive market making legends set
forth on the inside of the front cover page of the Prospectus
and (C) the statements set forth under the caption
"Underwriting" in the Prospectus constitute the only written
information furnished to the Company by or
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on behalf of the Underwriters for use in the preparation of
the Registration Statement or the Prospectus or any
amendment or supplement thereto;
(ii) the Company has no subsidiaries other than the
subsidiaries set forth on Exhibit A to this Agreement
(singularly, a "Subsidiary" and collectively, the
"Subsidiaries"); the Company has been duly incorporated and is
a validly existing corporation in good standing under the laws
of Delaware, with full corporate power and authority to own or
lease its properties and assets and to conduct its business as
described in the Registration Statement and the Prospectus and
is duly qualified to do business in each jurisdiction in which
it owns or leases real property or in which the conduct of its
business or the ownership or leasing of property requires such
qualification, except where the failure to be so qualified,
either individually or in the aggregate, would not have a
material adverse effect on the condition (financial or
otherwise), business, assets, prospects, net worth or results
of operations of the Company and its Subsidiaries, taken as a
whole (a "Material Adverse Effect"); each Subsidiary has been
duly incorporated and is a validly existing corporation in
good standing under the laws of the jurisdiction set forth
opposite its name on Exhibit A, with full corporate power and
authority to own or lease its properties and assets and to
conduct its business as described in the Registration
Statement and the Prospectus and is duly qualified to do
business in each jurisdiction in which it owns or leases real
property or in which the conduct of its business or the
ownership or leasing of property requires such qualification,
except where the failure to be so qualified, either
individually or in the aggregate, would not have a Material
Adverse Effect;
(iii) the capitalization of the Company is, and upon
consummation of the transactions contemplated hereby and by
the Prospectus will be, as set forth in the Registration
Statement and the Prospectus under the caption
"Capitalization;" all of the outstanding shares of capital
stock of the Company have been duly authorized and are validly
issued, are fully paid and non-assessable and conform to the
description thereof in the Registration Statement and the
Prospectus and were not issued in violation of any preemptive
rights or other rights to subscribe for or purchase
securities; and, except as set forth in the Registration
Statement and the Prospectus with respect to the Company's
Stock Option Plans and for options, warrants or other rights
to acquire up to ___________ shares of Common Stock granted
outside of the Company's Stock Option Plans, no options,
warrants or other rights to purchase from the Company,
agreements or other obligations of the Company to issue or
other rights to convert any obligation into, or exchange any
securities for, shares of capital stock of or ownership
interests in the Company are outstanding; the description of
the Company's Stock Options Plans and the other options or
rights granted and exercised thereunder, as set forth in the
Registration Statement and the Prospectus, accurately and
fairly presents the information required to be shown under the
Act with respect to such options and rights;
(iv) subsequent to the respective dates as of which
information is given in the Registration Statement and
Prospectus, and except as described therein, (A)
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neither the Company nor any Subsidiary has incurred any
material liabilities or obligations, direct or contingent,
or entered into any material transactions not in the
ordinary course of business, (B) neither the Company nor any
Subsidiary has purchased any of its outstanding capital
stock or declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock or otherwise
and (C) there has not been any material adverse change in
the condition (financial or otherwise), business, affairs,
prospects or results of operations of the Company and its
Subsidiaries, taken as a whole, or any material change in
the Company's or any Subsidiary's capital stock, short-term
debt or long-term debt;
(v) the Shares to be sold by the Company pursuant to
this Agreement have been duly and validly authorized and, when
issued, delivered and paid for pursuant to this Agreement,
will be validly issued, fully paid and nonassessable, and will
conform to the description thereof contained in the
Prospectus;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company and is a legal, valid
and binding agreement of the Company enforceable in accordance
with its terms, except (i) as enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally
and by general equity principles and (ii) as rights to
indemnity or contribution hereunder may be limited by Federal
or state securities laws or the public policy underlying such
laws;
(vii) neither the Company nor any Subsidiary is in
violation of its Certificate of Incorporation or by-laws;
neither the Company nor any Subsidiary is in violation of or
in breach of or in default in (nor has any event occurred that
with notice or lapse of time, or both, would be a breach of or
a default in) the performance of any obligation, agreement or
condition contained in any agreement, lease, contract, permit,
license, franchise agreement, mortgage, loan agreement,
debenture, note, deed of trust, bond, indenture or other
evidence of indebtedness or any other instrument or obligation
(collectively, "Obligations and Instruments") to which the
Company or the Subsidiary is a party or by which the Company
or the Subsidiary or any of its properties or assets is bound
or affected (except for such contravention or default as would
not have a Material Adverse Effect); neither the Company nor
any Subsidiary is in violation of any statute, judgment,
decree, order, rule or regulation (collectively, "Laws")
applicable to the Company or the Subsidiary or any of its
properties or assets that, alone, or together with other
violations of Laws would result in a Material Adverse Effect;
and, to the best knowledge of the Company, no other party
under any contract or other agreement to which the Company or
any Subsidiary is a party is in material default thereunder
except for such defaults as would not individually or in the
aggregate result in a Material Adverse Effect;
(viii) the execution, delivery and performance of
this Agreement and delivery of the Shares by the Company and
compliance by the Company with all the provisions hereof and
the consummation of the transactions contemplated
11
hereby and as described in the Prospectus will not, alone or
upon notice or the passage of time or both (A) require any
consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other
governmental body or third party (except such as may be
required under the Act and the securities or Blue Sky laws
of the various states or by the NASD), (B) result in the
creation or imposition of any lien, charge or encumbrance
upon any of the properties or assets of the Company or any
Subsidiary pursuant to the terms and provisions of any
Obligation or Instrument, (C) conflict with or constitute a
breach or default under any Obligation or Instrument to
which the Company or any Subsidiary is a party or by which
the Company or any Subsidiary or any of their properties or
assets are bound, (except for such creation, conflict,
breach or default as would not have a Material Adverse
Effect), or (D) assuming compliance with the Act and all
applicable state securities or Blue Sky laws, violate or
conflict with any Laws applicable to the Company or any
Subsidiary or any of their properties or assets (except for
such violation or conflict as could not have a Material
Adverse Effect); no action, suit or proceeding before any
court or arbitrator or any governmental body, agency or
official (domestic or foreign) is pending against or, to the
knowledge of the Company, threatened against the Company or
any Subsidiary, that, if adversely determined, could
reasonably be expected to in any manner invalidate this
Agreement;
(ix) except as set forth in the Prospectus, there is
no action, suit, proceeding, inquiry or investigation,
governmental or otherwise before any court, arbitrator or
governmental agency or body (collectively, "Proceedings")
pending to which the Company or any Subsidiary is a party or
to which any of their properties or assets are subject, that,
if determined adversely to the Company or such Subsidiary,
might result in a Material Adverse Effect, or that might
materially and adversely affect the properties or assets
thereof, or that seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of
any of the Shares to be sold hereunder or the consummation of
the transactions described in the Prospectus and, to the best
knowledge of the Company after due inquiry, no such
Proceedings are threatened or contemplated; and there is no
contract, document, agreement or transaction to which the
Company or any Subsidiary is a party, or that involved or
involves the Company or any Subsidiary or any of their
properties or assets that are required to be described in or
filed as exhibits to the Registration Statement or the
Prospectus by the Act or the Rules and Regulations that have
not been so described or filed; no action has been taken with
respect to the Company or any Subsidiary, and, to the best
knowledge of the Company and the Selling Stockholders, no
statute, rule or regulation or order has been enacted, adopted
or issued by any governmental agency that suspends the
effectiveness of the Registration Statement, prevents or
suspends the use of any Preliminary Prospectus or the
Prospectus or suspends the sale of the Shares in any
jurisdiction referred to in Section 5(g) hereof; no
injunction, restraining order or order of any nature by a
federal or state court of competent jurisdiction has been
issued with respect to the Company or any Subsidiary that
might prevent the
12
issuance of the Shares, suspend the effectiveness of the
Registration Statement, prevent or suspend the use of any
Preliminary Prospectus or the Prospectus or suspend the sale
of the Shares in any jurisdiction referred to in Section
5(g) hereof; and every request of the Commission, or any
securities authority or agency of any jurisdiction, for
additional information (to be included in the Registration
Statement or the Prospectus or otherwise) has been complied
with in all material respects;
(x) neither the Company nor any Subsidiary has
violated any foreign, Federal, state, or local law, statute,
ordinance, rule, regulation or common law relating to (A) the
protection, investigation, remediation, or restoration of the
environment or natural resources, (B) the handling, use,
storage, treatment, disposal, release or threatened release of
any Hazardous Material (as defined below), (C) noise, odor,
pollution, contamination, land use, or any injury or threat of
injury to persons or property or (D) the protection of the
health and safety of employees or the public ("Environmental
Laws"), nor are there any circumstances, either past, present
or that are reasonably foreseeable, that may lead to such
violation in the future that, in each case or in the
aggregate, might result in a Material Adverse Effect; no
property owned or leased by the Company or any Subsidiary is
included or proposed for inclusion on the National Priorities
List promulgated under the Comprehensive Response Compensation
and Liability Act of 1980, U.S.C. ss.9601 et seq.; no property
currently or in the past owned or leased by the Company or any
Subsidiary contains any Hazardous Material that requires
investigation or remediation under any Environmental Law;
neither the Company nor any Subsidiary has caused or allowed
the release of any Hazardous Material on, in, under or from
any property currently or in the past owned or leased by the
Company or any Subsidiary; neither the Company nor any
Subsidiary has received any notice of a claim under or
pursuant to any Environmental Law relating to any Hazardous
Material on or originating from any property currently or in
the past owned or leased by the Company or any Subsidiary;
there are no underground storage tanks located on or under any
property currently or in the past owned or leased by the
Company or any Subsidiary; for purposes of this Agreement,
"Hazardous Material" means any substance, material, or waste
that is (1) listed, classified or regulated in any
concentration pursuant to any Environmental Law, (2) any
petroleum hydrocarbon, asbestos-containing material,
lead-containing paint or plumbing, or polychlorinated
biphenyls or (3) any other substance, material, or waste which
may be the subject of regulatory action by any governmental
entity pursuant to any Environmental Law;
(xi) the Company and each Subsidiary has such
permits, licenses, registrations, franchises and
authorizations of governmental or regulatory authorities or
third parties ("Permits"), including, without limitation,
under any applicable Environmental Laws, as are necessary to
own, lease and operate its properties and assets and to
conduct its businesses, except where the failure to have any
such Permit would not have a Material Adverse Effect; the
Company and each Subsidiary are in compliance with and have
fulfilled and performed all of their
13
respective obligations with respect to such Permits and no
event has occurred that allows, or after notice or lapse of
time, or both would allow, revocation or termination thereof
or result in any other material impairment of the rights of
the holder of any such Permit; and such Permits contain no
restrictions that are materially burdensome to the Company
or the Subsidiary;
(xii) neither the Company nor any Subsidiary has
violated any foreign, Federal, state, or local law relating to
discrimination in the hiring, promotion or pay of employees,
or any applicable foreign, Federal or state wages and hours
laws, or any provisions of the Employee Retirement Income
Security Act of 1974, as amended, or the rules and regulations
promulgated thereunder or similar foreign laws, that, in each
case or in the aggregate, might result in a Material Adverse
Effect;
(xiii) neither the Company nor any subsidiary is, or
intends to conduct its business in a manner in which it would
become, an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company
Act");
(xiv) except as otherwise set forth in the
Prospectus, the Company and each Subsidiary has good and
marketable title, free and clear of all liens, claims,
encumbrances and restrictions (except liens for taxes not yet
due and payable) to all property and assets described in the
Registration Statement as being owned by it; all leases to
which the Company or any Subsidiary is a party are subsisting,
valid and binding and no default of the Company or the
Subsidiary or, to the best knowledge of the Company and the
Selling Stockholders, any other person has occurred or is
continuing thereunder that might result in a Material Adverse
Effect; and the Company and each Subsidiary enjoys peaceful
and undisturbed possession under all such leases to which the
Company or the Subsidiary is a party as lessee with such
exceptions as do not materially interfere with the use made
thereof by the Company or the Subsidiary;
(xv) the Company and each Subsidiary maintains
reasonably adequate insurance for the conduct of its business
in accordance with prudent business practices (and the
insurance maintained by retailers generally) with reputable
third-party insurers;
(xvi) to the best knowledge of the Company and the
Selling Stockholders, BDO Xxxxxxx, LLP, the accounting firm
that has certified or reviewed, or shall certify or review,
the financial statements and supporting schedules filed or to
be filed with the Commission as part of the Registration
Statement and the Prospectus, is an independent public
accounting firm with respect to the Company as required by the
Act;
(xvii) the consolidated financial statements of the
Company, together with related notes and schedules of the
Company included in the Registration Statement
14
and the Prospectus, are accurate and present fairly the
financial position, results of operations and cash flows of
the Company and its Subsidiaries at the indicated dates and
for the indicated periods; such financial statements of have
been prepared in accordance with generally accepted
accounting principles ("GAAP") consistently applied
throughout the periods involved, and all adjustments
necessary for a fair presentation of results for such
periods have been made and any unaudited financial
statements have been prepared on a basis substantially
consistent with that of the audited operating financial
statements included in the Registration Statement and the
Prospectus; and the summary and selected financial and
operating data included in the Registration Statement and
the Prospectus presents fairly the information shown therein
and have been compiled on a basis consistent with the
audited and any unaudited financial statements, as the case
may be, included therein; and the pro forma information
included in the Prospectus present fairly the information
shown therein, have been prepared in accordance with GAAP
and the Commission's rules and guidelines with respect to
pro forma financial statements and other pro forma
information, have been properly compiled on the pro forma
basis described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used
therein are appropriate under the circumstances;
(xviii) no holder of any security of the Company has
any right to require inclusion of any such security in the
Registration Statement; there are no preemptive rights with
respect to the offering being made by the Prospectus;
(xvix) no labor dispute with the employees of the
Company or any Subsidiary exists, or to the best knowledge of
the Company after due inquiry, is imminent, that could result
in a Material Adverse Effect; and neither the Company nor any
Subsidiary has received notice of any existing or imminent
labor disturbance by the employees of any of its principle
suppliers, customers, manufacturers or contractors that could
result in any Material Adverse Effect;
(xx) the Company any each Subsidiary has filed or
caused to be filed, or has properly filed extensions for, all
foreign, federal, state and local income, value added and
franchise tax returns and has paid all taxes and assessments
shown thereon as due, except for such taxes and assessments as
are disclosed or adequately reserved against and that are
being contested in good faith by appropriate proceedings,
promptly instituted and diligently conducted; all material tax
liabilities are adequately provided for on the books of the
Company and each Subsidiary, and there is no material tax
deficiency that has been or might be asserted against the
Company or any Subsidiary that is not so provided for;
(xxi) the Company and each Subsidiary owns or
possesses, or can acquire on reasonable terms, the patents,
patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and or
unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names
(collectively, "Patents and Proprietary
15
Rights") currently employed by it in connection with the
business it now operates except where the failure to so own,
possess or acquire such Patents and Proprietary Rights would
not have a Material Adverse Effect; and neither the Company
nor any Subsidiary has received any notice and is not
otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Patent or
Proprietary Rights that, if the subject of any unfavorable
decision, ruling or finding, singly or in the aggregate,
could result in a Material Adverse Effect;
(xxii) the Company and each Subsidiary has conducted,
is conducting and intends to conduct its business so as to
comply in all material respects with applicable federal,
state, local and foreign government Laws, except where the
failure to comply would not have a Material Adverse Effect;
and except as set forth in the Registration Statement and the
Prospectus, neither the Company nor any Subsidiary is charged
with or, to the Company's knowledge after due inquiry, under
investigation with respect to, any material violation of any
such Laws;
(xxiii) neither the Company nor any Subsidiary has
taken and or will take, directly or indirectly, any action
designed to or which has constituted or that might reasonably
be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale
of the Shares;
(xxiv) neither the Company, any Subsidiary nor, to
the best knowledge of the Company and the Selling
Stockholders, any employee or agent of the Company or any
Subsidiary has made any payment of funds of the Company or the
Subsidiary or received or retained any funds in violation of
any law, rule or regulation (including, without limitation,
the Foreign Corrupt Practices Act) or of a character required
to be disclosed in the Prospectus; neither the Company nor any
Subsidiary has, at any time during the past five years, (1)
made any unlawful contributions to any candidate for any
political office, or failed fully to disclose any contribution
in violation of law, or (2) made any unlawful payment to
state, federal or foreign government officer or officers, or
other person charged with similar public or quasi-public duty;
(xxv) no transaction has occurred between or among
the Company or any Subsidiary and any of the Company's or such
Subsidiary's officers or directors or any affiliate or
affiliates of any such officer or director that is required to
be described in and is not described in the Registration
Statement and the Prospectus;
(xxvi) other than as provided to the Underwriters
under this Agreement, neither the Company nor any Subsidiary
has incurred any liability for finder's or broker's fees or
agent's commissions in connection with the execution and
delivery of this Agreement, the offer and sale of the Shares
or the transactions hereby contemplated;
16
(xxvii) the Company and each Subsidiary maintains a
system of internal accounting controls 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
GAAP 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 inventory is compared with the existing
inventory at reasonable intervals and appropriate action is
taken with respect to any differences;
(xxviii) there is no material document of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration
Statement that is not described or filed as required; and
(xxvix) the Company confirms as of the date hereof
that it and each Subsidiary is in compliance with all
provisions of Section 1 of Florida Statutes, Section 517.075,
An Act Relating to Disclosure of Doing Business with Cuba; the
Company further agrees that if it or any Subsidiary commences
engaging in business with the government of Cuba or with any
person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with
the Commission or with the Florida Department of Banking and
Finance (the "Department"), whichever date is later, the
Company will provide the Department notice of such business or
change, as appropriate, in a form acceptable to the
Department.
(b) In addition to the foregoing, the Selling Stockholders,
severally and not jointly, represent and warrant to, and agree with,
the Underwriters that:
(i) Such Selling Stockholder has all requisite power
to enter into this Agreement and to sell, assign, transfer and
deliver to the Underwriters the Shares to be sold by such
Selling Stockholder hereunder in accordance with the terms of
this Agreement. This Agreement has been duly executed and
delivered by such Selling Stockholder and constitutes and will
constitute the legal, valid and binding obligation of such
Selling Stockholder enforceable against such Selling
Stockholder in accordance with its terms, except (i) as
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general equity
principles and (ii) as rights to indemnity or contribution
hereunder may be limited by Federal or state securities laws
or the public policy underlying such laws;
(ii) Such Selling Stockholder has duly executed and
delivered a power of attorney and custody agreement (with
respect to such Selling Stockholder, the "Power-of-Attorney"
and the "Custody Agreement," respectively), each in the form
heretofore delivered to the Representatives, appointing each
of Xxxxxx Xxxxxx and Xxxxxxx Xxxxxxx, individually, as such
Selling Stockholder's attorney-in-fact (in each case, the
"Attorney-in-Fact") with authority to execute, deliver and
perform
17
this Agreement on behalf of such Selling Stockholder and
appointing North American Transfer Company, as custodian
thereunder (the "Custodian"). Certificates in negotiable
form, endorsed in blank or accompanied by blank stock powers
duly executed, with signatures appropriately guaranteed,
representing the Shares to be sold by such Selling
Stockholder hereunder have been deposited with the Custodian
pursuant to the Custody Agreement for the purpose of
delivery pursuant to this Agreement. Such Selling
Stockholder has full power to enter into the Custody
Agreement and the Power-of-Attorney and to perform its
obligations under the Custody Agreement. The Custody
Agreement and the Power-of-Attorney have been duly executed
and delivered by such Selling Stockholder and are the legal,
valid, binding and enforceable instruments of such Selling
Stockholder, except (i) as enforceability thereof may be
limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights
generally and by general equity principles and (ii) as
rights to indemnity or contribution hereunder may be limited
by Federal or state securities laws or the public policy
underlying such laws. Such Selling Stockholder agrees that
each of the Shares represented by the certificates on
deposit with the Custodian is subject to the interests of
the Underwriters hereunder, that the arrangements made for
such custody, the appointment of the Attorneys-in-Fact and
the right, power and authority of the Attorneys-in-Fact to
execute and deliver this Agreement and to carry out the
terms of this Agreement, are to that extent irrevocable and
that the obligations of such Selling Stockholder hereunder
shall not be terminated, except as provided in this
Agreement or the Custody Agreement, by any act of such
Selling Stockholder, by operation of law or otherwise,
whether in the case of any individual Selling Stockholder by
the death or incapacity of such Selling Stockholder, in the
case of a trust or estate by the death of the trustee or
trustees or the executor or executors or the termination of
such trust or estate, or in the case of a corporate or
partnership Selling Stockholder by its liquidation or
dissolution or by the occurrence of any other event. If any
individual Selling Stockholder, trustee or executor should
die or become incapacitated or any such trust should be
terminated, or if any corporate or partnership Selling
Stockholder shall liquidate or dissolve, or if any other
event should occur, before the delivery of such Shares
hereunder, the certificates for such Shares deposited with
the Custodian shall be delivered by the Custodian in
accordance with the respective terms and conditions of this
Agreement as if such death, incapacity, termination,
liquidation or dissolution or other event had not occurred,
regardless of whether or not the Custodian or the
Attorneys-in-Fact shall have received notice thereof;
(iii) Such Selling Stockholder is the lawful record
and beneficial owner of the Shares to be sold by such Selling
Stockholder hereunder. Upon sale and delivery of, and payment
for, such Shares, as provided herein, such Selling Stockholder
will convey good and marketable title to such Shares, free and
clear of any security interests, liens, encumbrances,
equities, claims, options, rights of third parties or other
defects;
18
(iv) Such Selling Stockholder has reviewed the
Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) and the Registration
Statement, and the information regarding such Selling
Stockholder set forth therein under the caption "Principal and
Selling Stockholders" is complete and accurate;
(v) The sale by such Selling Stockholder of Shares
pursuant hereto is not prompted by any adverse information
concerning the Company or any Subsidiary that is not set forth
in the Registration Statement or the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus);
(vi) The sale of the Shares to the Underwriters by
such Selling Stockholder pursuant to this Agreement, the
compliance by such Selling Stockholder with the other
provisions of this Agreement, the Custody Agreement and the
consummation of the other transactions herein contemplated do
not (A) require the consent, approval, authorization,
registration or qualification of or with any governmental
authority, except such as have been obtained, such as may be
required under state and foreign Blue Sky laws and, if the
Registration Statement is not effective under the Securities
Act as of the time of execution hereof, such as may be
required (and shall be obtained as provided in this Agreement)
under the Securities Act and the Exchange Act, or (B) result
in a breach or violation of any of the terms and provisions
of, or constitute a default under, any indenture, mortgage,
deed of trust, lease or other agreement or instrument to which
such Selling Stockholder is a party or by which such Selling
Stockholder or any of such Selling Stockholder's properties
are bound, or any statute or any judgment, decree, order, rule
or regulation of any court or other governmental authority or
any arbitrator applicable to such Selling Stockholder; and
(vii) none of the Selling Stockholders nor any
trustee or beneficiary of the Selling Stockholders is
affiliated or associated as a director, officer, partner,
stockholder or otherwise with any securities broker or dealer
which is a member of the NASD.
(c) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty made by the Company and each of the Selling
Stockholders, severally and not jointly, to each Underwriter as to the
matters covered thereby and shall be deemed incorporated herein in its
entirety and shall be effective as if such representation and warranty
were made herein; and any certificate signed by the Selling
Stockholders as such and delivered to you or to counsel for the
Underwriters shall also be deemed a representation and warranty made by
the Company and each of the Selling Stockholders, severally and not
jointly, to each Underwriter as to the matters covered thereby and
shall also be deemed incorporated herein in its entirety and shall be
effective as if such representation and warranty were made herein.
19
7. Indemnification.
(a) The Company and each of the Selling Stockholders, jointly
and severally, agrees to indemnify and hold harmless each of the
Underwriters and each person, if any, who controls each of the
Underwriters within the meaning of Section 15 of the Act or Section 20
of the Exchange Act (collectively the Underwriters and each such person
are referred to herein as the "indemnified parties") from and against
any and all losses, claims, damages, liabilities and judgments caused
by, arising out of, related to or based upon: (i) any inaccuracy of any
representation or warranty by the Company or the Selling Stockholder
contained herein; (ii) any failure of the Company or the Selling
Stockholder to perform its respective obligations hereunder or under
law; or (iii) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), including the information deemed to be part of
the Registration Statement at the time of effectiveness pursuant to
Rule 430A, if applicable, or the Prospectus or any Preliminary
Prospectus or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that the
indemnification contained in this paragraph with respect to any
Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such
Underwriter or any employee of such Underwriter) on account of any such
loss, liability, claim, damage or expense arising from the sale of the
Firm Shares or Additional Shares by such Underwriter to any person if a
copy of the Prospectus shall not have been sent to such person within
the time required by the Act and the Regulations, and the untrue
statement or alleged untrue statement or omission or alleged omission
of a material fact contained in such Preliminary Prospectus was
corrected in the Prospectus, as amended or supplemented, provided that
the Company had delivered the Prospectus, as amended or supplemented,
to the several Underwriters on a timely basis to permit such delivery
or sending; and provided further, that neither the Company nor any
Selling Stockholder shall be liable in any such case to the extent that
such losses, claims, damages, liabilities or judgments are caused by an
untrue statement or omission made or omitted in reliance upon, and in
conformity with, information relating to the Underwriters furnished in
writing to the Company by or on behalf of the Underwriters with your
consent expressly for use therein (the Company and the Selling
Stockholders hereby acknowledge for all purposes under this Agreement
that (A) the last paragraph set forth on the outside front cover page
of the Prospectus, (B) the stabilization and passive market making
legends set forth on the inside of the front cover page of the
Prospectus and (C) the statements set forth under the caption
"Underwriting" in the Prospectus constitute the only written
information furnished to the Company by or on behalf of the
Underwriters for use in the preparation of the Registration Statement
or the Prospectus or any amendment or supplement thereto); and provided
further, that the liability of any Selling Stockholder under this
Section 7 shall be limited to the amount of proceeds received by such
Selling Stockholder from the sale of such Selling Stockholder's Shares
pursuant to this Agreement.
(b) In case any action shall be brought against any of the
indemnified parties, based upon any Preliminary Prospectus, the
Registration Statement or the Prospectus or
20
any amendment or supplement thereto, or otherwise, and with respect to
which indemnity may be sought against the Company or any Selling
Stockholder, such indemnified parties shall promptly notify the
Company (and the Selling Stockholders, care of the Company) in writing
(but the failure so to notify shall not relieve the Company or the
Selling Stockholders of any liability that they may otherwise have to
such indemnified parties under this Section 7 (although the Company's
and the Selling Stockholders' liability to an indemnified party may be
reduced on a monetary basis to the extent, but only to the extent,
they have been prejudiced by such failure on the part of such
indemnified party), and the Company and the Selling Stockholders shall
promptly assume the defense thereof, including the employment of
counsel reasonably satisfactory to such indemnified party and payment
of all fees and expenses. The indemnified parties shall each have the
right to employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of such counsel shall
be at the expense of such indemnified parties unless (i) the
employment of such counsel shall have been specifically authorized by
the Company, (ii) the Company and the Selling Stockholders shall have
failed to assume promptly the defense or to employ counsel reasonably
satisfactory to such indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the
indemnified parties and the Company or the Selling Stockholders, and
an indemnified party shall have been advised by counsel that there may
be one or more legal defenses available to one or more of the
indemnified parties that are different from or additional to those
available to the Company or the Selling Stockholders (in which case
the Company and the Selling Stockholders shall not have the right to
assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the Company and the Selling
Stockholders shall not, in connection with any one such action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for the
indemnified parties, which firm shall be designated in writing by
EVEREN Securities, Inc., and that all such fees and expenses shall be
reimbursed promptly as they are incurred). The Company and the Selling
Stockholders shall not be liable for any settlement of any such action
effected without their written consent, which consent shall not be
unreasonably withheld, but if settled with the written consent of the
Company and the Selling Stockholders, the Company and the Selling
Stockholders agree to indemnify and hold harmless the indemnified
parties from and against any and all loss or liability by reason of
such settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, 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 10 business days after delivery
by registered or certified mail to the proper address for notice to
such indemnifying party of the aforesaid request (whether or not such
delivery is accepted) 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 of any pending or threatened proceeding in respect of which
any
21
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional and complete release in writing
of such indemnified party from any and all liability on claims that
are the subject matter of such proceeding, which such settlement shall
be in form and substance satisfactory to the indemnified party. The
indemnification provided in this Section 7 will be in addition to any
liability which the Company and the Selling Stockholders may otherwise
have.
(c) The Underwriters agree, severally and not jointly, to
indemnify and hold harmless the Selling Stockholders, the Company, its
directors, its officers who sign the Registration Statement and any
person controlling the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, to the same extent as the
indemnity provided in Section 7(a)(iii) above from the Company and the
Selling Stockholders to the Underwriters, but only with reference to
information stated in or omitted from the Registration Statement, the
Prospectus or any Preliminary Prospectus in reliance upon, and in
conformity with, information relating to the Underwriters furnished in
writing to the Company by or on behalf of the Underwriters with your
consent expressly for use therein; the Company and the Selling
Stockholders hereby acknowledge for all purposes under this Agreement
that (A) the last paragraph set forth on the outside front cover page
of the Prospectus, (B) the stabilization and passive market making
legends set forth on the inside of the front cover page of the
Prospectus and (C) the statements set forth under the caption
"Underwriting" in the Prospectus constitute the only written
information furnished to the Company by or on behalf of the
Underwriters for use in the preparation of the Registration Statement
or the Prospectus or any amendment or supplement thereto. In case any
action shall be brought against the Company, any of the Selling
Stockholders, any of the Company's directors, any such officers or any
person controlling the Company based on the Registration Statement, the
Prospectus or any Preliminary Prospectus and in respect of which
indemnity may be sought against the Underwriters, the Underwriters
shall have the rights and duties given to the Company and the Selling
Stockholders by Section 7(b) hereof (except that if the Company and the
Selling Stockholders shall have assumed the defense thereof, such
Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Underwriter),
and the Selling Stockholders, the Company, its directors, any such
officers and any person controlling the Company shall have the rights
and duties given to the "indemnified parties" by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
for any reason unavailable to an indemnified party or insufficient to
hold such indemnified party harmless in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities and
judgments (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholders
on the one hand and the Underwriters on the other from the offering of
the Securities or (ii) if the allocation provided in clause (i) above
is not permitted by applicable law, in such
22
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Company and the Selling Stockholders on the one hand and the
Underwriters on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such
losses, claims, damages, liabilities or judgments, as well as any
other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering and sale of the
Shares (before deducting expenses) received by the Company and the
Selling Stockholders on the one hand, and the total underwriting
discounts and commissions received by the Underwriters on the other,
bears to the total price to the public of the Shares, in each case as
set forth in the table on the cover page of the Prospectus. The
relative fault of the Company, the Selling Stockholders and the
Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission or the alleged omission to state a material fact relates
to information supplied by the Company, the Selling Stockholders or
the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
The Company, the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contribution pursuant
to this Section 7(d) were determined by pro rata allocation (even if
the Underwriters or the Selling Stockholders were treated as one entity
for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages,
liabilities or judgments referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 7,
no Underwriter shall be required to contribute any amount in excess of
the amount of 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 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligation in this Section 7(d) to
contribute are several in proportion to the respective amount of Shares
purchased hereunder by each Underwriter and not joint.
8. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Shares on the
Closing Date and the Additional Shares on any Option Closing Date are subject to
the fulfillment of each of the following conditions on or prior to the Closing
Date and each Option Closing Date:
(a) All the representations and warranties of the Company and
the Selling Stockholders contained in this Agreement and in any
certificate delivered hereunder shall be true and correct on the
Closing Date and each Option Closing Date with the same force and
effect as if made on and as of the Closing Date or Option Closing Date,
as applicable. The Company and the Selling Stockholders shall not have
failed at or prior to the Closing
23
Date or Option Closing Date, as applicable, to perform or comply in
all respects with any of the agreements herein contained and required
to be performed or complied with by the Company or the Selling
Stockholders at or prior to the Closing Date.
(b) If the Registration Statement is not effective at the time
of the execution and delivery of this Agreement, the Registration
Statement shall have become effective (or, if a post-effective
amendment is required to be filed pursuant to Rule 430A under the Act,
such post-effective amendment shall have become effective) not later
than 9:30 A.M., New York City time, on the date of this Agreement or
such later time as you may approve in writing or, if the Registration
Statement has been declared effective prior to the execution and
delivery hereof in reliance on Rule 430A, the Prospectus shall have
been filed as required hereby, if necessary; and at the Closing Date
and each applicable Option Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been commenced or shall be
pending before or, to the best knowledge of the Underwriters, the
Company or the Selling Stockholders, threatened by the Commission;
every request for additional information on the part of the Commission
shall have been complied with to the Underwriters' satisfaction; no
stop order suspending the sale of the Shares in any jurisdiction
referred to in Section 5(g) shall have been issued and no proceeding
for that purpose shall have been commenced or shall be pending or
threatened.
(c) The Shares shall have been qualified for sale under the
Blue Sky laws of such states as shall have been specified by the
Representatives.
(d) The legality and sufficiency of the authorization,
issuance and sale or transfer and sale of the Shares hereunder, the
validity and form of the certificates representing the Shares, the
execution and delivery of this Agreement and all corporate proceedings
and other legal matters incident thereto, and the form of the
Registration Statement and the Prospectus (except financial statements)
shall have been approved by counsel for the Underwriters exercising
reasonable judgment, and no Underwriter shall have advised the Company
that the Registration Statement or the Prospectus, or any amendment or
supplement thereto, contains an untrue statement of material fact, or
omits to state a fact that in your opinion is material and is required
to be stated therein or is necessary to make the statements therein not
misleading.
(e) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred any material change, or any
material development involving a prospective change, in or affecting
particularly the business or properties of the Company or any
Subsidiary, whether or not arising in the ordinary course of business,
that, in the judgment of the Representatives, makes it impractical or
inadvisable to proceed with the public offering or purchase of the
Shares as contemplated hereby.
(f) You shall have received an agreement from each of the
directors, executive officers of the Company, and each of the employees
of the Company as may be specified by the Underwriters, who are not
Selling Stockholders (the "Additional Shareholders"), whereby each such
director, executive officer and employee agrees to be bound by an
24
agreement to the same effect as the covenants set forth in the last
paragraph of Section 3 of this Agreement (the "Lock-Up Agreements").
(g) You shall have received an opinion (satisfactory to you
and your counsel) dated the Closing Date or the Option Closing Date, as
the case may be, of Xxxxxx Xxxxxxxxxx LLP, counsel for the Company and
the Selling Stockholders, in form and substance satisfactory to the
Representatives and attached hereto as Exhibit B; and you shall have
received an opinion (satisfactory to you and your counsel) dated the
Closing Date or the Option Closing Date, as the case may be, of Riker,
Danzig, special counsel for the Company, in form and substance
satisfactory to the Representatives and attached hereto as Exhibit C.
(h) You shall have received an opinion of Xxxxxx, Xxxx &
Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date or
the Option Closing Date, as the case may be, in form and substance
satisfactory to the Representatives.
(i) You shall have received, in connection with the execution
of this Agreement and on the Closing Date and each Option Closing Date,
a "cold comfort" letter from BDO Xxxxxxx, LLP, dated as of each such
date in form and substance satisfactory to you with respect to the
financial statements and certain financial information and data
contained in the Registration Statement and the Prospectus.
(j) You shall have received from the Company a certificate,
signed by Xxxxxx Xxxxxx and Xxxxxxx Xxxxxxx in their capacities as the
Chief Executive Officer, President and Treasurer and the Chief
Operating Officer of the Company, respectively, addressed to the
Underwriters and dated the Closing Date or Option Closing Date, as
applicable to the effect that:
(i) such officer does not know of any Proceedings
instituted, threatened or contemplated against the Company or
any Subsidiary of a character required to be disclosed in the
Prospectus that are not so disclosed; such officer does not
know of any material contract required to be filed as an
exhibit to the Registration Statement which is not so filed;
(ii) such officer has carefully examined the
Registration Statement and the Prospectus and all amendments
or supplements thereto and, in such officer's opinion, such
Registration Statement or such amendment as of its effective
date and as of the Closing Date, and the Prospectus or such
supplement as of its date and as of the Closing Date, did not
contain an untrue statement of material fact or omit to state
a material fact required to be stated therein or necessary in
order to make the statements therein not misleading and, in
such officer's opinion, since the effective date of the
Registration Statement, no event has occurred or information
become known that should have been set forth in an amendment
to the Registration Statement or a supplement to the
Prospectus which has not been so set forth in such amendment
or supplement;
25
(iii) the representations and warranties of the
Company set forth in Section 6(a) of this Agreement are true
and correct as of the date of this Agreement and as of the
Closing Date or the Option Closing Date, as the case may be,
and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to such Closing Date; and
(iv) the Commission has not issued an order
preventing or suspending the use of the Prospectus or any
preliminary prospectus filed as a part of the Registration
Statement or any amendment thereto; no stop order suspending
the effectiveness of the Registration Statement has been
issued; and, to the best knowledge of the respective signers,
no proceedings for that purpose have been instituted or are
pending or contemplated under the Act.
The delivery of the certificate provided for in this
subparagraph shall be and constitute a representation and warranty of
the Company as to the facts set forth in said certificate.
(k) You shall have received a certificate of each Selling
Stockholder dated the Closing Date or the Option Closing Date, as the
case may be, to the effect that the representations and warranties of
such Selling Stockholder set forth in Sections 6(a) and 6(b) of this
Agreement are true and correct as of such date and the Selling
Stockholder has complied with all the agreements and satisfied all the
conditions on the part of such Selling Stockholder to be performed or
satisfied at or prior to such date.
(1) You and Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the
Underwriters, shall have received on or before the Closing Date or the
Option Closing Date, as the case may be, such further documents,
opinions, certificates and schedules or instruments relating to the
business, corporate, legal and financial affairs of the Company as you
and they shall have reasonably requested from the Company.
(m) Each Selling Stockholder will deliver to EVEREN
Securities, Inc., prior to the Effective Date, a properly completed and
executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department
regulations in lieu thereof).
9. Effective Date of Agreement, Termination and Defaults. This
Agreement shall become effective upon, and shall not be deemed delivered until,
the later of (i) execution of this Agreement and (ii) when notification of the
effectiveness of the Registration Statement has been released by the Commission.
This Agreement may be terminated at any time prior to the Closing Date
and any exercise of the option to purchase Additional Shares may be canceled at
any time prior to any Option Closing Date by the Underwriters by written notice
to the Company if any of the following has occurred: (i) since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any material adverse change or development involving a
26
prospective material adverse change in the condition, financial or otherwise, of
the Company or the earnings, assets, liabilities, affairs, prospects, management
or business of the Company, whether or not arising in the ordinary course of
business, that would, in the Representatives' sole judgment, make it
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectus, (ii) any outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic conditions or
in the financial markets of the United States that, in the Representatives'
judgment, is material and adverse and would, in the Representatives' judgment,
make it impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus, (iii) the suspension or material limitation of
trading in securities on the NYSE, the American Stock Exchange, the Nasdaq
SmallCap Market or the Nasdaq Stock Market or limitation on prices for
securities on either such exchange, the Nasdaq SmallCap Market or the Nasdaq
Stock Market, (iv) the enactment, publication, decree or other promulgation of
any federal or state statute, regulation, rule or order of any court or other
governmental authority that in the Representatives' opinion materially and
adversely affects, or will materially and adversely affect, the business or
operations of the Company, (v) the declaration of a banking moratorium by either
federal or Illinois, New York or Colorado state authorities, (vi) the taking of
any action by any Federal, state or local government or agency in respect of its
monetary or fiscal affairs that in the Representatives' opinion has a material
adverse effect on the financial markets in the United States, (vii) there shall
be any change in financial markets or in political, economic or financial
conditions which, in the opinion of the Representatives, either renders it
impracticable or inadvisable to proceed with the offering and sale of the Shares
on the terms set forth in the Prospectus or materially adversely affects the
market for the Shares, or (vii) any conditions to the Underwriters' obligations
shall not have been fulfilled when and as required by this Agreement.
If on the Closing Date or on any Option Closing Date, as the
case may be, any of the Underwriters shall fail or refuse to purchase the Firm
Shares or Additional Shares, as the case may be, which it has agreed to purchase
hereunder on such date, and the aggregate number of Firm Shares or Additional
Shares, as the case may be, that such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase does not exceed, in the aggregate, 10%
of the total number of Shares that all Underwriters are obligated to purchase on
such date, each non-defaulting Underwriter shall be obligated, in the proportion
which the number of Firm Shares set forth opposite its name in Schedule II
hereto bears to the total number of Firm Shares or Additional Shares, as the
case may be, that all the non-defaulting Underwriters have agreed to purchase,
or in such other proportion as you may specify, to purchase the Firm Shares or
Additional Shares, as the case may be, that such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If, on the
Closing Date or on the Option Closing Date, as the case may be, any of the
Underwriters shall fail or refuse to purchase the Firm Shares or Additional
Shares, as the case may be, in an amount that exceeds, in the aggregate, 10% of
the total number of the Shares, and arrangements satisfactory to you and the
Company for the purchase of such Shares are not made within 48 hours after such
default, this Agreement shall terminate without liability on the part of the
non-defaulting Underwriters, the Company and the Selling Stockholders, except as
otherwise provided in this Section 9. In any such case that does not result in
termination of this Agreement, either you or the Company may postpone the
Closing Date or the Option Closing Date, as the case may be, for not longer than
seven (7) days, in order
27
that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve a defaulting Underwriter from
liability in respect of any default of any such Underwriter under this
Agreement.
The indemnity and contribution provisions and other
agreements, representations and warranties of the Company, the Selling
Stockholders and the Company's officers and directors set forth in or made
pursuant to this Agreement shall remain operative and in full force and effect,
and will survive delivery of and payment for the Shares, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
any of the Underwriters or by or on behalf of the Company or any Selling
Stockholder or the officers or directors of the Company or any controlling
person of the Company, (ii) acceptance of the Shares and payment therefor
hereunder or (iii) termination of this Agreement. Notwithstanding any
termination of this Agreement, the Company shall be liable for and shall pay all
expenses it has agreed to pay pursuant to Section 5(l).
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of, and shall be binding upon, the Company, the
Selling Stockholders, the Underwriters, any indemnified person referred to
herein and their respective successors and assigns, all as and to the extent
provided in this Agreement, and no other person shall acquire or have any right
under or by virtue of this Agreement. The terms "successors and assigns" shall
not include a purchaser of any of the Shares from any of the several
Underwriters merely because of such purchase.
10. Effectiveness of Registration Statement. You, the Company and the
Selling Stockholders will use your, its and their best efforts to cause the
Registration Statement to become effective, if it has not yet become effective,
and to prevent the issuance of any stop order suspending the effectiveness of
the Registration Statement and, if such stop order be issued, to obtain as soon
as possible the lifting thereof.
11. Miscellaneous. All communications hereunder will be in writing and,
if sent to the Underwriters will be mailed, delivered or telegraphed and
confirmed to you c/o EVEREN Securities, Inc., 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000-0000, Attention: Syndicate Department, with a copy to Xxxxxx,
Xxxx & Xxxxxxxx LLP, Xxx Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxx; if sent to the Company will be mailed, delivered or
telegraphed and confirmed to the Company at its corporate headquarters with a
copy to Xxxxxx Xxxxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx X. Xxxxxxx; and if sent to the Selling Stockholders will be
mailed, delivered or telegraphed care of the Company, with a copy to Xxxxxx
Xxxxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx X. Xxxxxxx, or in any case to such other address as the person to be
notified may have requested in writing.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAW THEREOF.
28
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
29
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Stockholders and the several Underwriters,
including you.
Very truly yours,
U.S. HOME & GARDEN
By: ________________________________
Xxxxxx Xxxxxx
Chief Executive Officer,
President and Treasurer
SELLING STOCKHOLDERS:
*
____________________________________
*
____________________________________
*By: _______________________________
Xxxxxx Xxxxxx, Attorney-in-Fact
*By: _______________________________
Xxxxxxx Xxxxxxx, Attorney-in-Fact
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
EVEREN Securities, Inc.
Xxxxxxxxxx Xxxx & Xxxx Incorporated
Acting as Representatives of the several
Underwriters named in Schedule I.
By: EVEREN Securities, Inc.
By: _____________________________________
Xxxx Xxxxxx
Senior Managing Director
30
Exhibit A
Subsidiary Jurisdiction of Incorporation
---------- -----------------------------
Exhibit B
Exhibit C
Schedule I
Name and Address of Selling Stockholder Number of Firm Shares to be Sold
--------------------------------------- --------------------------------
Schedule II
Underwriter Number of Firm Shares to be Purchased
----------- -------------------------------------
EVEREN Securities, Inc. ...............................................
Xxxxxxxxxx Xxxx & Xxxx Incorporated....................................
Total.........................................................
