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EXHIBIT 1.1
2,000,000 Shares
SteriGenics International, Inc.
Common Stock
UNDERWRITING AGREEMENT
February __, 1998
PAINEWEBBER INCORPORATED
XXXXX XXXXXXX INC.
As Representatives of the
several Underwriters
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
SteriGenics International, Inc., a Delaware corporation (the "Company")
and certain stockholders of the Company named in Schedule II (the "Selling
Stockholders"), propose to sell an aggregate of 2,000,000 shares (the "Firm
Shares") of the Company's Common Stock, $0.001 par value per share (the "Common
Stock") of which 575,000 shares are to be issued and sold by the Company and an
aggregate of 1,425,000 shares are to be sold by the Selling Stockholders in the
respective amounts set forth opposite their respective names in Schedule II, to
you and to the other underwriters named in Schedule I (collectively, the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"). Certain Selling Stockholders have also agreed to grant to
you and the other Underwriters an option (the "Option") to purchase up to an
additional 300,000 shares of Common Stock (the "Option Shares") on the terms and
for the purposes set forth in Section 1(b). The Firm Shares and the Option
Shares are hereinafter collectively referred to as the "Shares."
The public offering price per share for the Shares and the purchase
price per share for the Shares to be paid by the several Underwriters shall be
agreed upon by the Company, the Selling Stockholders and the Representatives,
acting on behalf of the several Underwriters, and such agreement shall be set
forth in a separate written instrument substantially in the form of Exhibit A
hereto (the "Price Determination Agreement"). The Price Determination
Agreement may take the form of an exchange of any standard form of written
telecommunication among the Company and the
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Representatives and shall specify such applicable information as is indicated
in Exhibit A hereto. The offering of the Shares will be governed by this
Agreement, as supplemented by the Price Determination Agreement. From and
after the date of the execution and delivery of the Price Determination
Agreement, this Agreement shall be deemed to incorporate, and, unless the
context otherwise indicates, all references contained herein to "this
Agreement" and to the phrase "herein" shall be deemed to include the Price
Determination Agreement.
Each Selling Stockholder has executed and delivered a Custody
Agreement and a Power of Attorney in the form attached hereto as Exhibit B
(collectively, the "Agreement and Power of Attorney") pursuant to which each
Selling Stockholder has placed his Firm Shares in custody and appointed the
persons designated therein with authority to execute and deliver this Agreement
on behalf of such Selling Stockholder and to take certain other actions with
respect thereto and hereto.
The Company and the Selling Stockholders confirm as follows their
respective agreements with the Representatives and the several other
Underwriters.
1. Agreement to Sell and Purchase.
(a) On the basis of the representations, warranties and agreements of the
Company and the Selling Stockholders herein contained and subject to all the
terms and conditions of this Agreement, the Company and each of the Selling
Stockholders, severally and not jointly, agree to sell to each Underwriter
named below, and each Underwriter, severally and not jointly, agrees to
purchase from the Company and the Selling Stockholders at the purchase price
per share for the Firm Shares to be agreed upon by the Representatives, the
Selling Stockholders and the Company in accordance with Section 1(c) or 1(d)
hereof and set forth in the Price Determination Agreement, the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I, plus such
additional number of Firm Shares which such Underwriter may become obligated to
purchase pursuant to Section 9 hereof. Schedule I may be attached to the Price
Determination Agreement.
(b) Subject to all the terms and conditions of this Agreement, certain
Selling Stockholders grant the Option to the several Underwriters to purchase,
severally and not jointly, up to 300,000 Option Shares from such Selling
Stockholders at the same price per share as the Underwriters shall pay for the
Firm Shares. The Option may be exercised only to cover over-allotments in the
sale of the Firm Shares by the Underwriters and may be exercised in whole or in
part at any time (but not more than once) on or before the 30th day after the
date of the Prospectus (as hereinafter defined), upon written or telegraphic
notice (the "Option Shares Notice") by the Representatives to such Selling
Stockholders no later than 12:00 noon, New York City time, at least two and no
more than five business days before the date specified for closing in the Option
Shares Notice (the "Option Closing Date") setting forth the aggregate number of
Option Shares to be purchased and the time and date for such purchase. On the
Option Closing Date, such Selling Stockholders will sell to the Underwriters the
number of Option Shares set forth in the Option Shares Notice, and each
Underwriter will purchase such percentage of the Option Shares as is equal to
the percentage of Firm
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Shares that such Underwriter is purchasing, as adjusted by the Representatives
in such manner as they deem advisable to avoid fractional shares.
(c) The public offering price per share for the Firm Shares and the
purchase price per share for the Firm Shares to be paid by the several
Underwriters shall be agreed upon and set forth in the Price Determination
Agreement, if the Company has elected to rely on Rule 430A (as hereinafter
defined). In the event such price has not been agreed upon and the Price
Determination Agreement has not been executed by the close of business on the
fourteenth business day following the date on which the Registration Statement
(as hereinafter defined) becomes effective, this Agreement shall terminate
forthwith, without liability of any party to any other party except that
Section 6 shall remain in effect.
(d) If the Company has elected not to rely on Rule 430A, the public
offering price per share for the Firm Shares and the purchase price per share
for the Firm Shares to be paid by the several Underwriters shall be agreed upon
and set forth in the Price Determination Agreement, which shall be dated the
date hereof, and an amendment to the Registration Statement containing such per
share price information shall be filed before the Registration Statement
becomes effective.
2. Delivery and Payment. Delivery of the Firm Shares shall be made to
the Representatives for the accounts of the Underwriters at the office of
PaineWebber Incorporated, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
against payment of the purchase price by Federal Reserve Funds check payable in
immediately available funds to the order of the Company and to [___], on behalf
of each of the Selling Stockholders. Such payment shall be made at 10:00 a.m.,
New York City time, on February __, 1998 or at such time on such other date,
not later than ten business days after such date, as may be agreed upon by the
Company and the Representatives (such date is hereinafter referred to as the
"Closing Date").
To the extent the Option is exercised, delivery of the Option Shares
against payment to, or for the account of, the Selling Stockholders by the
Underwriters (in the manner specified above) will take place at the offices
specified above for the Closing Date at the time and date (which may be the
Closing Date) specified in the Option Shares Notice.
Certificates evidencing the Shares shall be in definitive form and
shall be registered in such names and in such denominations as the
Representatives shall request at least two business days prior to the Closing
Date or the Option Closing Date, as the case may be, by written notice to the
Company or to the Selling Stockholders, as the case may be. For the purpose of
expediting the checking and packaging of certificates for the Shares, the
Company or the Selling Stockholders, as the case may be, agree to make such
certificates available for inspection at least 24 hours prior to the Closing
Date or the Option Closing Date, as the case may be.
The cost of original issue tax stamps, if any, in connection with the
issuance and delivery of the Firm Shares by the Company to the respective
Underwriters shall be borne by the Company. The cost of tax stamps, if any, in
connection with the sale of the Firm Shares and the Option Shares by the Selling
Stockholders shall be borne by
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the Selling Stockholders. The Company and the Selling Stockholders will pay
and save each Underwriter and any subsequent holder of the Firm Shares or the
Option Shares, as the case may be, harmless from any and all liabilities with
respect to or resulting from any failure or delay in paying Federal and state
stamp and other transfer taxes, if any, which may be payable or determined to
be payable in connection with the original issuance or sale to such Underwriter
of the Firm Shares or the Option Shares, as the case may be.
3. Representations and Warranties of the Company.
The Company represents, warrants and covenants to each Underwriter
that:
(a) A registration statement (Registration No. 333-_______) on Form S-1
relating to the Shares, including a preliminary prospectus and such amendments
to such registration statement as may have been required to the date of this
Agreement, has been prepared by the Company under the provisions of the
Securities Act of 1933, as amended (the "Act"), and the rules and regulations
(collectively referred to as the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, and has been filed with the
Commission. The term "preliminary prospectus" as used herein means a
preliminary prospectus as contemplated by Rule 430 or Rule 430A ("Rule 430A")
of the Rules and Regulations included at any time as part of the registration
statement. Copies of such registration statement and amendments and of each
related preliminary prospectus have been delivered to the Representatives. The
term "Registration Statement" means the registration statement as amended at
the time it becomes or became effective (the "Effective Date"), including
financial statements and all exhibits and any information deemed to be included
by Rule 430A or Rule 434 of the Rules and Regulations. If the Company files a
registration statement to register a portion of the Shares and relies on Rule
462(b) of the Rules and Regulations for such registration statement to become
effective upon filing with the Commission (the "Rule 462 Registration
Statement"), then any reference to the "Registration Statement" shall be deemed
to include the Rule 462 Registration Statement, as amended from time to time.
The term "Prospectus" means the prospectus as first filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations or, if no such filing is
required, the form of final prospectus included in the Registration Statement
at the Effective Date.
(b) On the Effective Date, the date the Prospectus is first filed with the
Commission pursuant to Rule 424(b) (if required), at all times subsequent to
and including the Closing Date and, if later, the Option Closing Date and when
any post-effective amendment to the Registration Statement becomes effective or
any amendment or supplement to the Prospectus is filed with the Commission, the
Registration Statement and the Prospectus (as amended or as supplemented if the
Company shall have filed with the Commission any amendment or supplement
thereto), including the financial statements included in the Prospectus, did or
will comply in all material respects with all applicable provisions of the Act
and the Rules and Regulations and will contain all statements required to be
stated therein in accordance with the Act and the Rules and Regulations. On
the Effective Date and when any post-effective amendment to the Registration
Statement
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becomes effective, no part of the Registration Statement or any such amendment
did or will contain any untrue statement of a 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. At the Effective Date, the date the
Prospectus or any amendment or supplement to the Prospectus is filed with the
Commission and at the Closing Date and, if later, the Option Closing Date, the
Prospectus did not or will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading. The
foregoing representations and warranties in this Section 3(b) do not apply to
any statements or omissions made in reliance on and in conformity with
information relating to any Underwriter furnished in writing to the Company by
the Representatives specifically for inclusion in the Registration Statement or
Prospectus or any amendment or supplement thereto. For all purposes of this
Agreement, the amounts of the selling concession and reallowance set forth in
the Prospectus under the caption "Underwriting" constitute the only information
relating to any Underwriter furnished in writing to the Company by the
Representatives specifically for inclusion in the Registration Statement, the
preliminary prospectus or the Prospectus. The Company has not distributed any
offering material in connection with the offering or sale of the Shares other
than the Registration Statement, the preliminary prospectus, the Prospectus or
any other materials, if any, permitted by the Act.
(c) The only subsidiaries (as defined in the Rules and Regulations) of the
Company are the subsidiaries listed on Exhibit 21 to the Registration Statement
(the "Subsidiaries"). The Company and each of its Subsidiaries is, and at the
Closing Date will be, a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation. The Company
and each of its Subsidiaries has, and at the Closing Date will have, full power
and authority to conduct all the activities conducted by it, to own or lease
all the assets owned or leased by it and to conduct its business as described
in the Registration Statement and the Prospectus, except with such exceptions
as are not material and do not materially interfere with the current and
proposed use of such assets by the Company and each of its Subsidiaries. The
Company and each of its Subsidiaries is, and at the Closing Date will be, duly
licensed or qualified to do business and in good standing as a foreign
corporation in all jurisdictions in which the nature of the activities
conducted by it or the character of the assets owned or leased by it makes such
licensing or qualification necessary, except to the extent that the failure to
be so qualified or be in good standing would not have a material adverse effect
on the Company and its Subsidiaries taken as a whole. All of the outstanding
shares of capital stock of the Subsidiaries have been duly authorized and
validly issued and are fully paid and non-assessable and are owned by the
Company free and clear of all liens, encumbrances and claims whatsoever, except
such liens, encumbrances and claims in connection with financing arrangements
set forth in the Registration Statement and the Prospectus. Except for the
stock of the Subsidiaries and as disclosed in the Registration Statement, the
Company does not own, and at the Closing Date will not own, directly or
indirectly, any shares of stock or any other equity or long-term debt
securities of any corporation or have any equity interest in any firm,
partnership, joint venture, association or other entity. Complete and correct
copies of the certificate of incorporation and of the by-laws of the
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Company and each of its Subsidiaries and all amendments thereto have been
delivered to the Representatives, and no changes therein will be made
subsequent to the date hereof and prior to the Closing Date or, if later, the
Option Closing Date.
(d) The outstanding shares of Common Stock have been, and the Shares to be
issued and sold by the Company upon such issuance will be, duly authorized,
validly issued, fully paid and nonassessable and will not be subject to any
preemptive or similar right. The description of the Common Stock in the
Registration Statement and the Prospectus is, and at the Closing Date will be,
complete and accurate in all material respects. Except as set forth in the
Prospectus and except for options issued after the Effective Date, the Company
does not have outstanding, and at the Closing Date will not have outstanding,
any options to purchase, or any rights or warrants to subscribe for, or any
securities or obligations convertible into, or any contracts or commitments to
issue or sell, any shares of Common Stock, any shares of capital stock of any
Subsidiary or any such warrants, convertible securities or obligations.
(e) The financial statements and schedules included in the Registration
Statement or the Prospectus present fairly the consolidated financial condition
of the Company as of the respective dates thereof and the consolidated results
of operations and cash flows of the Company for the respective periods covered
thereby, all in conformity with generally accepted accounting principles
applied on a consistent basis throughout the entire period involved, except as
otherwise disclosed in the Prospectus. The pro forma financial statements and
other pro forma financial information included in the Registration Statement or
the Prospectus (i) present fairly in all material respects the information
shown therein, (ii) have been prepared in accordance with the Commission's
rules and guidelines with respect to pro forma financial statements and (iii)
have been properly computed on the bases described therein. The assumptions
used in the preparation of the pro forma financial information included in the
Registration Statement or the Prospectus are reasonable and the adjustments
used therein are appropriate to give effect to the transactions or
circumstances referred to therein. No other financial statements or schedules
of the Company are required by the Act or the Rules and Regulations to be
included in the Registration Statement or the Prospectus. Ernst & Young LLP
(the "Accountants") who have reported on such financial statements and
schedules, are independent accountants with respect to the Company as required
by the Act and the Rules and Regulations.
(f) The Company 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 authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
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(g) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus and prior to the Closing Date,
except as set forth in or contemplated by the Registration Statement and the
Prospectus, (i) there has not been and will not have been any change in the
capitalization of the Company (other than the issuance of Common Stock upon the
exercise of stock options), or in the business, properties, financial condition
or results of operations of the Company and its Subsidiaries, taken as a whole,
from that set forth in the Prospectus, (ii) neither the Company nor any of its
Subsidiaries has incurred nor will it incur any material liabilities or
obligations, direct or contingent, nor has it entered into nor will it enter
into any material transactions outside the ordinary course of business, other
than pursuant to this Agreement and the transactions referred to herein and
(iii) the Company has not and will not have paid or declared any dividends or
other distributions of any kind on any class of its capital stock.
(h) The Company is not an "investment company" or an "affiliated person"
of, or "promoter" or "principal underwriter" for, an "investment company," as
such terms are defined in the Investment Company Act of 1940, as amended.
(i) Except as set forth in the Registration Statement and the Prospectus,
there are no actions, suits or proceedings pending or threatened against or
affecting the Company or any of its Subsidiaries or any of their respective
officers in their capacity as such, before or by any Federal or state court,
commission, regulatory body, administrative agency or other governmental body,
domestic or foreign, wherein an unfavorable ruling, decision or finding would
reasonably be expected to materially and adversely affect the Company and its
Subsidiaries taken as a whole.
(j) The Company and each of its Subsidiaries has, and will at all times
prior to the Closing Date have had, (i) all governmental licenses, permits,
consents, orders, approvals and other authorizations necessary to carry on its
business as contemplated in the Prospectus, except to the extent that the
failure to obtain or file such license, permit, consent, order, approval or
other authorization would not have a material adverse effect on the Company and
its Subsidiaries, taken as a whole, (ii) complied in all material respects with
all laws, regulations and orders applicable to it or its business and (iii)
performed all its obligations required to be performed by it, and is not, and
at the Closing Date will not be, in default, under any indenture, mortgage,
deed of trust, voting trust agreement, loan agreement, bond, debenture, note
agreement, lease, contract or other agreement or instrument (collectively, a
"contract or other agreement") to which it is a party or by which its property
is bound or affected that is material to the Company and its Subsidiaries,
taken as a whole. To the best knowledge of the Company and each of its
Subsidiaries, no other party under any material contract or other agreement to
which it is a party is in default in any respect thereunder. Neither the
Company nor any of its Subsidiaries is, nor at the Closing Date will any of
them be, in violation of any provision of its certificate of incorporation or
by-laws or comparable instruments.
(k) No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required in
connection with the authorization,
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issuance, transfer, sale or delivery of the Shares by the Company, in
connection with the execution, delivery and performance of this Agreement by
the Company or in connection with the taking by the Company of any action
contemplated hereby, except such as have been obtained under the Act or the
Rules and Regulations and such as may be required under state securities or
Blue Sky laws or the by-laws and rules of the National Association of
Securities Dealers, Inc. (the "NASD") in connection with the purchase and
distribution by the Underwriters of the Shares.
(l) The Company has full corporate power and authority to enter into this
Agreement. This Agreement has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding agreement of the Company and is
enforceable against the Company in accordance with the terms hereof. The
performance of this Agreement and the consummation of the transactions
contemplated hereby and the application of the net proceeds from the offering
and sale of the Shares in the manner set forth in the Prospectus under "Use of
Proceeds" will not result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or any of its Subsidiaries
pursuant to the terms or provisions of, or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, or give any
other party a right to terminate any of its obligations under, or result in the
acceleration of any obligation under, the certificate of incorporation or
by-laws of the Company or any of its Subsidiaries, any contract or other
agreement to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries or any of their respective
properties is bound or affected, or violate or conflict with any judgment,
ruling, decree, order, statute, rule or regulation of any court or other
governmental agency or body applicable to the business or properties of the
Company or any of its Subsidiaries.
(m) The Company and each of its Subsidiaries has good title to all
properties and assets described in the Prospectus as owned by it, free and
clear of all liens, charges, encumbrances or restrictions, except such as are
described in the Prospectus or are not material to the business of the Company
and its Subsidiaries, taken as a whole. The Company and each of its
Subsidiaries has valid, subsisting and enforceable leases for the properties
described in the Prospectus as leased by it, with such exceptions as are not
material and do not materially interfere with the use made and proposed to be
made of such properties by the Company and such Subsidiaries.
(n) There is no document or contract or other agreement 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 which is not described or
filed as required. All such contracts or other agreements to which the Company
or any Subsidiary is a party have been duly authorized, executed and delivered
by the Company or such Subsidiary, constitute valid and binding agreements of
the Company or such Subsidiary and are enforceable against the Company or such
Subsidiary in accordance with the terms thereof.
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(o) No statement, representation or warranty made by the Company in this
Agreement or made in any certificate or document required by this Agreement to
be delivered to the Representatives was or will be, when made, inaccurate,
untrue or incorrect.
(p) Neither the Company nor any of its directors, officers or controlling
persons has taken, directly or indirectly, any action intended, or which might
reasonably be expected, to cause or result, under the Act or otherwise, in, or
which has constituted, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares.
(q) No holder of securities of the Company has rights to the registration
of any securities of the Company because of the filing of the Registration
Statement, except for such rights that have been waived.
(r) The Shares are duly authorized for listing, subject to official notice
of issuance, on The Nasdaq National Market.
(s) The Company and its Subsidiaries are in compliance in all material
respects with all federal, state and local employment and labor laws,
including, but not limited to, laws relating to non-discrimination in hiring,
promotion and pay of employees; no material labor dispute with any employees of
the Company or any Subsidiary exists or, to the knowledge of the Company, is
imminent or threatened; and none of the executive officers of the Company has
actual knowledge of any existing, imminent or threatened labor disturbance by
the employees of any of its principal suppliers, customers, manufacturers or
contractors that could reasonably be expected to result in a material adverse
effect on the earnings, business, properties, financial condition or operations
of the Company and its Subsidiaries, taken as a whole.
(t) The Company and its Subsidiaries own, or are licensed or otherwise
have the full exclusive right to use, the material 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, services marks and trade names (collectively,
"patent and proprietary rights") presently employed by them or which are
necessary in connection with the conduct of the business now operated by them,
and neither the Company nor any of its Subsidiaries has received any written
notice or otherwise has actual knowledge of any infringement of or conflict
with asserted rights of others or any other claims with respect to any patent
or proprietary rights, or of any basis for rendering any patent and proprietary
rights invalid or inadequate to protect the interest of the Company or any of
its Subsidiaries that could reasonably be expected to result in any material
adverse effect upon the Company and its Subsidiaries, taken as a whole.
(u) Neither the Company nor any of its Subsidiaries nor, to the Company's
knowledge, any employee or agent of the Company or any Subsidiary has made any
payment of funds of the Company or any Subsidiary or received or retained any
funds in violation of any law, rule or regulation or of a character required to
be disclosed in the Prospectus.
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(v) The Company has complied, and until the completion of the distribution
of the Shares will comply, with all of the provisions of (including, without
limitation, filing all forms required by) Section 517.075 of the Florida
Securities and Investor Protection Act and Regulation 3E-900.001 issued
thereunder with respect to the offering and sale of the Shares.
(w) The Company and its Subsidiaries are in compliance in all material
respects with any and all applicable foreign, federal, state and local laws and
regulations and non-governmental requirements relating to the protection of
human health, safety, and the environment or imposing liability or standards of
conduct concerning any Hazardous Material (as hereinafter defined)
("Environmental, Health and Safety Requirements"), except where any such
noncompliance with Environmental, Health and Safety Requirements would not,
singly or in the aggregate, have a material adverse effect on the Company and
its Subsidiaries, taken as a whole. The term Environmental Health and Safety
Requirements shall include, without limitation, requirements administered,
imposed, or enforced by the U.S. Environmental Protection Agency ("EPA"), the
U.S. Food and Drug Administration ("FDA"), or the U.S. Department of
Agriculture ("U.S.D.A."), any corresponding or delegated state agency, and any
non-governmental organization from which the Company or its subsidiaries have
applied for or obtained formal certification or registration, which
requirements govern the use and operation of the Company's processes,
facilities and equipment, whether or not those requirements are imposed on the
Company directly. The term "Hazardous Material" means (A) any "hazardous
substance" as defined by the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, (B) any "hazardous waste" as defined by
the Resource Conservation and Recovery Act, as amended, (C) any petroleum or
petroleum product, (D) any polychlorinated biphenyl, and (E) any pollutant or
contaminant or hazardous, dangerous, or toxic chemical, material, waste or
substance regulated under or within the meaning of any other Environmental,
Health and Safety Requirement.
(x) The Company and its Subsidiaries have received all necessary permits,
licenses, certifications, registrations or other approvals under applicable
Environmental, Health and Safety Requirements to conduct their respective
businesses and are in compliance in all material respects with all terms and
conditions of permits, licenses, certifications, registrations or approvals
issued with respect to such businesses, except where failure to receive
required permits, licenses, certifications, registrations or other approvals or
failure to comply with the terms and conditions of such permits, licenses,
certifications, registrations or other approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its Subsidiaries,
taken as a whole. Except as set forth in the Registration Statement and the
Prospectus, neither the Company nor its Subsidiaries has received any notice or
other communication alleging that any of them is not in compliance with any
Environmental, Health and Safety Requirement, except where any such
noncompliance with Environmental, Health and Safety Requirements would not,
singly or in the aggregate, have a material adverse effect on the Company and
its Subsidiaries, taken as a whole. Except as set forth in the Registration
Statement and the Prospectus, neither the Company nor its Subsidiaries has
generated, manufactured, produced, transported, imported, used, treated,
refined, processed, handled, stored,
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discharged, released, or disposed of any Hazardous Material (whether lawfully
or unlawfully) at any site owned, leased, occupied, or controlled by the
Company or its Subsidiaries on or at any time prior to the Closing Date. There
are not and have not been any releases by the Company of any Hazardous Material
in any quantity at, on, under, from, or in the vicinity of any such site.
(y) To the Company's knowledge, except as set forth in the Registration
Statement and the Prospectus there are no costs and liabilities associated with
or arising in connection with Environmental, Health and Safety Requirements or
Radiological Health and Safety Requirements (as defined below) as currently in
effect (including, without limitation, costs of compliance therewith) which
would, singly or in the aggregate have a material adverse effect on the
earnings, business, properties, financial condition or operations of the
Company and its Subsidiaries, taken as a whole. There are no circumstances
that may prevent or interfere with the Company and its Subsidiaries compliance
with any material Environmental, Health and Safety Law.
(z) The Company maintains insurance with respect to its properties and
business of the types and in amounts generally deemed adequate for its business
and consistent with insurance coverage maintained by similar companies and
businesses, all of which insurance is in full force and effect.
(aa) The Company has filed all material federal, state and foreign income
and franchise tax returns and has paid all taxes shown as due thereon, other
than taxes which are being contested in good faith and for which adequate
reserves have been established in accordance with generally accepted accounting
principles ("GAAP"); and the Company has no knowledge of any tax deficiency
which has been or might be asserted or threatened against the Company for which
adequate reserves have not been established. There are no tax returns of the
Company or any of its Subsidiaries that are currently being audited by state,
local or federal taxing authorities or agencies (and with respect to which the
Company or any Subsidiary has received notice), where the findings of such
audit, if adversely determined, would reasonably be expected to result in a
material adverse effect on the earnings, business, properties, financial
condition or operations of the Company and its Subsidiaries, taken as a whole.
(bb) With respect to each employee benefit plan, program and arrangement
(including, without limitation, any "employee benefit plan" as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) maintained or contributed to by the Company, or with respect to
which the Company could incur any liability under ERISA (collectively, the
"Benefit Plans"), no event has occurred and, to the knowledge of the Company,
there exists no condition or set of circumstances, in connection with which the
Company could be subject to any liability under the terms of such Benefit Plan,
applicable law (including, without limitation, ERISA and the Internal Revenue
Code of 1986, as amended) or any applicable agreement that would reasonably be
expected to materially adversely affect the business, properties, financial
condition or results of operations of the Company and its Subsidiaries, taken
as a whole.
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(cc) The Company and its Subsidiaries are in compliance in all material
respects with any and all applicable regulatory standards relating to
radiological health and safety, as administered by the NRC or the Agreement
States (as defined below). The term "Radiological Health and Safety
Requirements" shall include, without limitation, requirements administered,
imposed or enforced by the U.S. Nuclear Regulatory Commission ("NRC") or any
corresponding or delegated state agency (the "Agreement States"), which
requirements govern the use and operation of the Company's processes,
facilities and equipment, whether or not these requirements are imposed on the
Company directly, which are enforced by the NRC pursuant to the Atomic Energy
Act of 1954, as amended, Chapter 10 of the Code of Federal Regulations as
applicable, or the equivalent thereto as administered and enforced by the
Agreement States.
(dd) The Company and its Subsidiaries have received all necessary permits,
licenses, certifications, registrations or other approvals under applicable
Radiological Health and Safety Requirements to conduct their respective
businesses and are in compliance, in all material respects, with the terms and
conditions of permits, licenses, certifications, registrations or approvals
issued with respect to such businesses, except where failure to receive
required permits, licenses, certifications, registrations or other approvals or
failure to comply with the terms and conditions of such permits, licenses,
certifications, registrations or other approvals would not, singly or in the
aggregate have a material adverse effect on the Company and its Subsidiaries,
taken as a whole. Except as set forth in the Registration Statement and the
Prospectus, neither the Company nor its Subsidiaries has received any notice
that any of them is not in compliance, in all material respects, with
applicable Radiological Health and Safety Requirements as administered by the
NRC or the Agreement States, except for any such noncompliance with
Radiological Health and Safety Requirements which would not singly or in the
aggregate have a material adverse effect on the Company and its Subsidiaries,
taken as a whole. Except as set forth in the Registration Statement and the
Prospectus, there are not and have not been any releases of any radioactive or
radiological material, substance, waste, or by-product in a quantity or manner
not permitted by the NRC or the Agreement States on, under, from or in the
vicinity of any site owned, leased, occupied or controlled by the Company or
its Subsidiaries.
(ee) The Company has timely filed all reports, schedules, forms, statements
and other documents required to be filed by it with the United States
Securities and Exchange Commission pursuant to the reporting requirements of
the Securities Exchange Act of 1934, as amended.
4. Representations and Warranties by the Selling Stockholders. Each
Selling Stockholder, severally and not jointly, represents, warrants and
covenants to each Underwriter that:
(a) Such Selling Stockholder has full power and authority to enter into
this Agreement and the Agreement and Power of Attorney. All authorizations and
consents necessary for the execution and delivery by such Selling Stockholder
of this Agreement and Power of Attorney, and for the execution of this
Agreement by or on behalf of such
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Selling Stockholder, have been given. Each of the Agreement and Power of
Attorney and this Agreement have been duly authorized, executed and delivered
by or on behalf of such Selling Stockholder and constitutes a valid and binding
agreement of such Selling Stockholder and is enforceable against such Selling
Stockholder in accordance with the terms hereof.
(b) Such Selling Stockholder now has, and at the time of delivery thereof
hereunder will have, (i) good and marketable title to the Shares to be sold by
such Selling Stockholder hereunder, free and clear of all liens, encumbrances
and claims whatsoever and (ii) full legal right and power, and all
authorization and approvals required by law, to sell, transfer and deliver such
Shares to the Underwriters hereunder and to make to representations, warranties
and agreements made by such Selling Stockholder herein. Upon the delivery of
and payment for such Shares hereunder, such Selling Stockholder will deliver
good and marketable title thereto, free and clear of all liens, encumbrances
and claims whatsoever.
(c) On the Closing Date and the Option Closing Date, all stock transfer or
other taxes (other than income taxes) which are required to be paid in
connection with the sale and transfer of the Shares to be sold by the Selling
Stockholders to the several Underwriters hereunder will have been fully paid or
provided for by the Selling Stockholders and all laws imposing such taxes will
have been fully complied with.
(d) The performance of this Agreement and the consummation of the
transactions contemplated hereby will not result in the creation or imposition
of any lien, charge or encumbrance upon any of the assets of such Selling
Stockholder pursuant to the terms or provisions of, or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
or result in the acceleration of any obligation under, the organizational
documents of such Selling Stockholder or any contract or other agreement to
which such Selling Stockholder is a party or by which such Selling Stockholder
or any of its property is bound or affected, or under any ruling, decree,
judgment, order, statute, rule or regulation of any court or other governmental
agency or body having jurisdiction over such Selling Stockholder or the
property of such Selling Stockholder.
(e) No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required for the
consummation by such Selling Stockholder of the transactions on its part
contemplated herein and in the Agreement and Power of Attorney, except such as
have been obtained under the Act or the Rules and Regulations and such as may
be required under state securities or Blue Sky laws or the by-laws and rules of
NASD in connection with the purchase and distribution by the Underwriters of
the Shares to be sold by such Selling Stockholder.
(f) Such Selling Stockholder has no knowledge of any material fact or
condition not set forth in the Registration Statement or the Prospectus which
has adversely affected, or may adversely affect, the business, properties,
business prospects, condition (financial or otherwise) or results of operations
of the Company, and the sale of the Shares proposed to be sold by such Selling
Stockholder is not prompted by any such knowledge.
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(g) All information with respect to such Selling Stockholder contained in
the Registration Statement and the Prospectus (as amended or supplemented, if
the Company shall have filed with the Commission any amendment or supplement
thereto) complied and will comply with all applicable provisions of the Act and
the Rules and Regulations, contains and will contain all statements required to
be stated therein in accordance with the Act and the Rules and Regulations, and
does not and will 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.
(h) To the best knowledge of such Selling Stockholder, the representations
and warranties of the Company contained in Section 3 are true and correct.
(i) Other than as permitted by the Act and the Rules and Regulations, such
Selling Stockholder has not distributed and will not distribute any preliminary
prospectus, the Prospectus or any other offering material in connection with
the offering sale of the Shares. Such Selling Stockholder has not taken,
directly or indirectly, any action designed, or which might reasonably be
expected, to cause or result in, under the Act or otherwise, or which has
caused or resulted in, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares.
(j) Certificates in negotiable form for the Firm Shares to be sold
hereunder by such Selling Stockholder have been placed in custody, for the
purpose of making delivery of such Firm Shares under this Agreement, under the
Agreement and Power of Attorney which appoints ______________ as custodian (the
"Custodian") for each Selling Stockholder. Such Selling Stockholder agrees
that the Shares represented by the certificates held in custody for him or it
under the Agreement and Power of Attorney are for the benefit of and coupled
with and subject to the interest hereunder of the Custodian, the Committee, the
Underwriters, each other Selling Stockholder and the Company, that the
arrangements made by such Selling Stockholder for such custody and the
appointment of the Custodian and the Committee by such Selling Stockholder are
irrevocable, and that the obligations of such Selling Stockholder hereunder
shall not be terminated by operation of law, whether by the death, disability,
incapacity or liquidation of any Selling Stockholder or the occurrence of any
other event. If any Selling Stockholder should die, become disabled or
incapacitated or be liquidated or if any other such event should occur before
the delivery of the Shares hereunder, certificates for the Shares shall be
delivered by the Custodian in accordance with the terms and conditions of this
Agreement and actions taken by the Committee and the Custodian pursuant to the
Agreement and Power of Attorney shall be as valid as if such death,
liquidation, incapacity or other event had not occurred, regardless of whether
or not the Custodian or the Committee, or either of them, shall have received
notice thereof.
5. Agreements of the Company and the Selling Stockholders. The Company
and the Selling Stockholders (as to Sections 5(i), (j), (k), (m), (o) (p), (q)
and (r)) agree severally and not jointly with the several Underwriters as
follows:
(a) The Company will not, either prior to the Effective Date or thereafter
during such period as the Prospectus is required by law to be delivered in
connection with sales of the
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Shares by an Underwriter or dealer, file any amendment or supplement to the
Registration Statement or the Prospectus, unless a copy thereof shall first
have been submitted to the Representatives within a reasonable period of time
prior to the filing thereof and the Representatives shall not have objected
thereto in good faith.
(b) The Company will use its best efforts to cause the Registration
Statement to become effective, and will notify the Representatives promptly (1)
when the Registration Statement has become effective and when any
post-effective amendment thereto becomes effective, (2) of any request by the
Commission for amendments or supplements to the Registration Statement or the
Prospectus or for additional information, (3) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose or the threat thereof, (4)
of the happening of any event during the period mentioned in the second
sentence of Section 4(e) that in the judgment of the Company makes any
statement made in the Registration Statement or the Prospectus untrue or that
requires the making of any changes in the Registration Statement or the
Prospectus in order to make the statements therein, in light of the
circumstances under which they are made, not misleading and (5) of receipt by
the Company or any representative or attorney of the Company of any other
communication from the Commission relating to the Registration Statement, any
preliminary prospectus or the Prospectus. If at any time the Commission shall
issue any order suspending the effectiveness of the Registration Statement, the
Company will make every reasonable effort to obtain the withdrawal of such
order at the earliest possible moment. The Company will use its best efforts
to comply with the provisions of and make all requisite filings with the
Commission pursuant to Rule 430A and to notify the Representatives promptly of
all such filings.
(c) The Company will furnish to the Representatives, without charge, two
(2) signed copies of the Registration Statement and of any post- effective
amendment thereto, including financial statements and schedules, and all
exhibits thereto and will furnish to the Representatives, without charge, for
transmittal to each of the other Underwriters, one (1) copy of the Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules but without exhibits.
(d) The Company will comply with all the provisions of any undertakings
contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time, the Company
will deliver to each of the Underwriters, without charge, as many copies of the
Prospectus or any amendment or supplement thereto as the Representatives may
reasonably request. The Company consents to the use of the Prospectus or any
amendment or supplement thereto by the several Underwriters and by all dealers
to whom the Shares may be sold, both in connection with the offering or sale of
the Shares and for any period of time thereafter during which the Prospectus is
required by law to be delivered in connection therewith. If during such period
of time any event shall occur which in the judgment of the Company or counsel
to the Underwriters should be set forth in the Prospectus in order to make any
statement therein, in the light of the circumstances under which it was made,
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not misleading, or if it is necessary to supplement or amend the Prospectus to
comply with law, the Company will forthwith prepare and duly file with the
Commission an appropriate supplement or amendment thereto, and will deliver to
each of the Underwriters, without charge, such number of copies thereof as the
Representatives may reasonably request.
(f) Prior to any public offering of the Shares by the Underwriters, the
Company will cooperate with the Representatives and counsel to the Underwriters
in connection with the registration or qualification of the Shares for offer
and sale under the securities or Blue Sky laws of such United States and
foreign jurisdictions as the Representatives may request; provided, that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to general service of process in any jurisdiction where it is not
now so subject.
(g) During the period of five years commencing on the Effective Date, the
Company will furnish to the Representatives and each other Underwriter who may
so request copies of such financial statements and other periodic and special
reports as the Company may from time to time distribute generally to the
holders of any class of its capital stock, and will furnish to the
Representatives and each other Underwriter who may so request a copy of each
annual or other report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of its securities
as soon as may be practicable but in no event later than the last day of the
fifteenth full calendar month following the calendar quarter in which the
Effective Date falls, an earnings statement (which need not be audited but
shall be in reasonable detail) for a period of 12 months ended commencing after
the Effective Date, and satisfying the provisions of Section 11(a) of the Act
(including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, the Company and the Selling
stockholders, jointly and severally, will pay, or reimburse if paid by the
Representatives, all costs and expenses incident to the performance of the
obligations of the Company and the Selling Stockholders under this Agreement,
including but not limited to costs and expenses of or relating to (1) the
preparation, printing and filing of the Registration Statement and exhibits to
it, each preliminary prospectus, the Prospectus and any amendment or supplement
to the Registration Statement or the Prospectus, (2) the preparation and
delivery of certificates representing the Shares, (3) furnishing (including
costs of shipping, mailing and courier) such copies of the Registration
Statement, the Prospectus and any preliminary prospectus, and all amendments
and supplements thereto, as may be requested for use in connection with the
offering and sale of the Shares by the Underwriters or by dealers to whom
Shares may be sold, (4) the listing of the Shares on the Nasdaq National
Market, (5) any filings required to be made by the Underwriters with the NASD,
and the reasonable fees, disbursements and other charges of counsel for the
Underwriters in connection therewith, (6) the registration or qualification of
the Shares for offer and sale under the securities or Blue Sky laws of such
jurisdictions designated
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pursuant to Section 4(f), including the reasonable fees, disbursements and
other charges of counsel to the Underwriters in connection therewith, and the
preparation and printing of preliminary, supplemental and final Blue Sky
memoranda, (7) counsel to the Company and counsel to the Selling Stockholders,
(8) the transfer agent for the Shares and (9) the Accountants. It is
understood, however, that except as provided in this Section 5 and Section 6
entitled "Indemnification," the Underwriters will pay all of their costs and
expenses, including fees and disbursements of their counsel (except as
otherwise provided in clauses (5) and (6) above), stock transfer taxes payable
on resale of any of the shares by them, any marketing expenses connected with
any offers they may make and the underwriters' expenses related to the "road
show."
(j) If this Agreement shall be terminated by the Company or the Selling
Stockholders pursuant to any of the provisions hereof (otherwise than pursuant
to Section 8) or if for any reason the Company or any Selling Stockholder shall
be unable to perform its obligations hereunder, the Company and the Selling
Stockholders, jointly and severally, will reimburse the several Underwriters
for all out-of-pocket expenses (including the fees, disbursements and other
charges of counsel to the Underwriters) reasonably incurred by them in
connection herewith.
(k) The Company and the Selling Stockholders will not at any time,
directly or indirectly, take any action intended, or which might reasonably be
expected, to cause or result in, or which will constitute, stabilization of the
price of the shares of Common Stock to facilitate the sale or resale of any of
the Shares.
(l) The Company intends to apply the net proceeds from the offering and
sale of the Shares to be sold by the Company in the manner set forth in the
Prospectus under "Use of Proceeds" and shall file such reports with the
Commission with respect to the sale of the Shares and the application of the
proceeds therefrom as may be required in accordance with Rule 463 under the
Act.
(m) During the period of 75 days commencing at the date of the Prospectus,
the Company and the Selling Stockholders will not, without the prior written
consent of PaineWebber Incorporated, directly or indirectly, offer to sell,
sell, contract to sell, grant any option for the sale of, or otherwise dispose
of, any Common Stock or securities convertible into or exchangeable for Common
Stock or warrants or other rights to acquire shares of Common Stock, other than
to the Underwriters pursuant to this Agreement and other than pursuant to
employee benefit plans.
(n) The Company will not, and will cause each of its executive officers,
directors and each beneficial owner of more than 5% of the outstanding shares
of Common Stock to enter into agreements with the Representatives in the form
set forth in Exhibit C to the effect that they will not, for a period of 75
days after the date of the Prospectus, without the prior written consent of
PaineWebber Incorporated, directly or indirectly, offer to sell, sell, contract
to sell, grant any option for the sale of, or otherwise dispose of, any shares
of Common Stock or rights to acquire such shares (other than pursuant to
employee stock option plans or in connection with other employee incentive
compensation arrangements).
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(o) The Selling Stockholders will not, for a period of 75 days after the
commencement of the public offering of the Shares, without the prior written
consent of the Representatives, sell, contract to sell or otherwise dispose of
any shares of Common Stock, other than pursuant to bona fide gifts to persons
who agree in writing with the Representatives to be bound by the provisions of
this Section 5(o).
(p) The Selling Stockholders will not, without the prior written consent
of the Representatives, make any bid for or purchase any shares of Common Stock
during the 75-day period following the date hereof.
(q) As soon as any Selling Stockholder is advised thereof, such Selling
Stockholder will advise the Representatives and confirm such advice in writing,
(1) of receipt by such Selling Stockholder, or by any representative of such
Selling Stockholder, of any communication from the Commission relating to the
Registration Statement, the Prospectus or any preliminary prospectus, or any
notice or order of the Commission relating to the Company or any of the Selling
Stockholders in connection with the transactions contemplated by this Agreement
and (2) of the happening of any event during the period from and after the
Effective Date that in the judgment of such Selling Stockholder makes any
statement made in the Registration Statement or the Prospectus untrue or that
requires the making of any changes in the Registration Statement or the
Prospectus in order to make the statements therein, in light of the
circumstances in which they were made, not misleading.
(r) The Selling Stockholders will deliver to the Representatives prior to
or on the Closing Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof).
6. Conditions of the Obligations of the Underwriters. In addition to the
execution and delivery of the Price Determination Agreement, the obligations of
each Underwriter hereunder are subject to the following conditions:
(a) Notification that the Registration Statement has become effective
shall be received by the Representatives not later than 5:00 p.m., New York
City time, on the date of this Agreement or at such later date and time as
shall be consented to in writing by the Representatives and all filings
required by Rule 424 of the Rules and Regulations and Rule 430A shall have been
made.
(b) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall be
pending or threatened by the Commission, (ii) no order suspending the
effectiveness of the Registration Statement or the qualification or
registration of the Shares under the securities or Blue Sky laws of any
jurisdiction shall be in effect and no proceeding for such purpose shall be
pending before or threatened or contemplated by the Commission or the
authorities of any such jurisdiction, (iii) any request for additional
information on the part of the staff of the Commission or any such authorities
shall have been complied with to the satisfaction of the staff of the
Commission or such authorities and (iv) after the date hereof, no
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amendment or supplement to the Registration Statement or the Prospectus shall
have been filed unless a copy thereof was first submitted to the
Representatives and the Representatives did not object thereto in good faith,
and the Representatives shall have received certificates, dated the Closing
Date and the Option Closing Date, as the case may be, and signed by the Chief
Executive Officer or the Chairman of the Board of Directors of the Company and
the Vice President of Finance of the Company (who may, as to proceedings
threatened, rely upon the best of their information and belief), to the effect
of clauses (i), (ii) and (iii).
(c) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) there shall not have been, and
no development shall have occurred which could reasonably be expected to result
in, a material adverse change in the general affairs, business, properties,
management, financial condition or results of operations of the Company and its
Subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, in each case other than as set forth in or
contemplated by the Registration Statement and the Prospectus and (ii) neither
the Company nor any of its Subsidiaries shall have sustained any material loss
or interference with its business or properties from fire, explosion, flood or
other casualty, whether or not covered by insurance, or from any labor dispute
or any court or legislative or other governmental or regulatory action, order
or decree, which is not set forth in the Registration Statement and the
Prospectus, if in the reasonable judgment of the Representatives any such
development makes it impracticable or inadvisable to consummate the sale and
delivery of the Shares by the Underwriters at the public offering price.
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, to the Company's knowledge, there
shall have been no litigation or other proceeding instituted or threatened in
writing against the Company or any of its Subsidiaries or any of their
respective officers or directors in their capacities as such, before or by any
Federal, state or local court, commission, governmental or industry regulatory
body, administrative agency or other governmental body, domestic or foreign, in
which litigation or proceeding an unfavorable ruling, decision or finding would
reasonably be expected to materially and adversely affect the business,
properties, financial condition or results of operations of the Company and its
Subsidiaries taken as a whole.
(e) Each of the representations and warranties of the Company and the
Selling Stockholders contained herein shall be true and correct in all material
respects at the Closing Date and, with respect to the Option Shares, at the
Option Closing Date, as if made at the Closing Date and, with respect to the
Option Shares, at the Option Closing Date, and all covenants and agreements
herein contained to be performed on the part of the Company and the Selling
Stockholders and all conditions herein contained to be fulfilled or complied
with by the Company and the Selling Stockholders at or prior to the Closing
Date and, with respect to the Option Shares, at or prior to the Option Closing
Date, shall have been duly performed, fulfilled or complied with.
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(f) The Representatives shall have received an opinion, dated the Closing
Date and the Option Closing Date, satisfactory in form and substance to counsel
for the Underwriters, from Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx &
Xxxxxxxxx, LLP, counsel to the Company, to the effect set forth in Exhibit D.
(g) The Representatives shall have received an opinion, dated the Closing
Date and the Option Closing Date, from Xxxxxxxx & Xxxxxxxx LLP, counsel to the
Underwriters, with respect to the Registration Statement, the Prospectus and
this Agreement, which opinion shall be satisfactory in all respects to the
Representatives.
(h) The Representatives shall have received an opinion, dated the Option
Closing Date, of Xxxxxxxx, Xxxxxxx & Xxxxxxx, P.C., counsel for the Selling
Stockholders, dated the Closing Date and, with respect to the Option Shares, the
Option Closing Date, to the effect set forth in Exhibit E.
(i) The Representatives shall have received an opinion, dated the Closing
Date and the Option Closing Date, from each of (i) Xxxxx & Xxxxxxx, L.L.P., FDA
special counsel to the Company, to the effect set forth in Exhibit F, (ii)
Xxxxxxxxxx and Sandler, New Jersey environmental special counsel to the
Company, to the effect set forth in Exhibit G, and (iii) Akin, Gump, Strauss,
Xxxxx and Xxxx, NRC special counsel to the Company, to the effect set forth in
Exhibit H, which opinions shall be satisfactory in all respects to the
Representatives.
(j) On the date of the Prospectus, the Accountants shall have furnished to
the Representatives a letter, dated the date of its delivery, addressed to the
Representatives and in form and substance satisfactory to the Representatives,
confirming that they are independent accountants with respect to the Company as
required by the Act and the Rules and Regulations and with respect to the
financial and other statistical and numerical information contained in the
Registration Statement. At the Closing Date and, as to the Option Shares, the
Option Closing Date, the Accountants shall have furnished to the
Representatives a letter, dated the date of its delivery, which shall confirm,
on the basis of a review in accordance with the procedures set forth in the
letter from the Accountants, that nothing has come to their attention during
the period from the date of the letter referred to in the prior sentence to a
date (specified in the letter) not more than five days prior to the Closing
Date and the Option Closing Date which would require any change in their letter
dated the date of the Prospectus, if it were required to be dated and delivered
at the Closing Date and the Option Closing Date.
(k) At the Closing Date and, as to the Option Shares, the Option Closing
Date, there shall be furnished to the Representatives an accurate certificate,
dated the date of its delivery, signed by each of the Chief Executive Officer
and the Vice President of Finance of the Company, on behalf of the Company, in
form and substance satisfactory to the Representatives, to the effect that:
(i) Each signer of such certificate has carefully examined the
Registration Statement and the Prospectus and (A) as of the date of such
certificate, such documents are true and correct in all material respects and
do not omit to state a material fact required to be stated
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therein or necessary in order to make the statements therein not untrue or
misleading and (B) since the Effective Date, no event has occurred as a result
of which it is necessary to amend or supplement the Prospectus in order to make
the statements therein not untrue or misleading in any material respect;
(ii) Each of the representations and warranties of the Company contained in
this Agreement were, when originally made, and are, at the time such
certificate is delivered, true and correct in all material respects;
(iii) Each of the covenants required herein to be performed by the Company
on or prior to the delivery of such certificate has been duly, timely and fully
performed and each condition herein required to be complied with by the Company
on or prior to the date of such certificate has been duly, timely and fully
complied with or waived by the Representatives; and
(iv) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, (A) there has not been, and no
development has occurred which could reasonably be expected to result in, a
material adverse change in the general affairs, business, properties,
management, financial condition or results of operations of the Company and its
Subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, in each case other than as set forth in or
contemplated by the Registration Statement and the Prospectus and (B) neither
the Company nor any of its Subsidiaries has sustained any material loss or
interference with its business or properties from fire, explosion, flood or
other casualty, whether or not covered by insurance, or from any labor dispute
or any court or legislative or other governmental action, order or decree,
which is not set forth in the Registration Statement and the Prospectus;
and such other matters as the Representatives may reasonably request.
(l) On or prior to the Closing Date, the Representatives shall have
received the executed agreements referred to in Section 5(n).
(m) The Shares shall be qualified for sale in such states and other
jurisdictions as the Representatives may reasonably request, each such
qualification shall be in effect and not subject to any stop order or other
proceeding on the Closing Date and the Option Closing Date.
(n) Prior to the Closing Date, the Shares shall have been duly authorized
for listing by the Nasdaq National Market upon official notice of issuance.
(o) The National Association of Securities Dealers, Inc. shall have
approved the underwriting terms and arrangements and such approval shall not
have been withdrawn or limited.
(p) At the Closing Date or the Option Closing Date, as the case may be,
there shall have been furnished to the Representatives an accurate certificate,
dated the date of its delivery, signed by or on behalf of each of the
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Selling Stockholders, in form and substance satisfactory to the
Representatives, to the effect that the representations and warranties of each
of the Selling Stockholders contained herein are true and correct in all
material respects on and as of the date of such certificate as if made on and
as of the date of such certificate, and each of the covenants and conditions
required herein to be performed or complied with by the Selling Stockholders on
or prior to the date of such certificate has been duly, timely and fully
performed or complied with.
7. Indemnification.
(a) Each of the Company and the Selling Stockholders, jointly and
severally, will indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person, if any, who
controls each Underwriter within the meaning of Section 15 of the Securities
Act of 1933, as amended (the "Act"), or Section 20 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), from and against any and all
losses, claims, liabilities, expenses and damages (including, but not limited
to, any and all investigative, legal and other expenses reasonably incurred in
connection with, and any and all amounts paid in settlement of, any action,
suit or proceeding between any of the indemnified parties and any indemnifying
parties or between any indemnified party and any third party, or otherwise, or
any claim asserted), as and when incurred, to which any Underwriter, or any
such person, may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, liabilities, expenses or damages arise out of
or are based on (i) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, the Registration
Statement or the Prospectus or any amendment or supplement to the Registration
Statement or the Prospectus or in any application or other document executed by
or on behalf of the Company or the Selling Stockholders or based on written
information furnished by or on behalf of the Company or the Selling
Stockholders filed in any jurisdiction in order to qualify the Shares under the
securities laws thereof or filed with the Commission, (ii) the omission or
alleged omission to state in such document a material fact required to be
stated in it or necessary to make the statements in it not misleading or (iii)
any act or failure to act or any alleged act or failure to act by any
Underwriter in connection with, or relating in any manner to, the Shares or the
offering contemplated hereby, and which is included as part of or referred to
in any loss, claim, liability, expense or damage arising out of or based upon
matters covered by clause (i) or (ii) above (provided that the Company shall
not be liable under this clause (iii) to the extent it is finally judicially
determined by a court of competent jurisdiction that such loss, claim,
liability, expense or damage resulted directly from any such acts or failures
to act undertaken or omitted to be taken by such underwriter through its gross
negligence or willful misconduct); provided that the Company and the Selling
Stockholders will not be liable to the extent that such loss, claim, liability,
expense or damage (A) arises from the sale of the Shares in the public offering
to any person by an Underwriter and is based on an untrue statement or omission
or alleged untrue statement or omission made in reliance on and in conformity
with information relating to any Underwriter furnished in writing to the
Company by the Representatives on behalf of any Underwriter expressly for
inclusion in the Registration
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Statement, any preliminary prospectus or the Prospectus or (B) results solely
from an untrue statement of a material fact contained in, or the omission of a
material fact from, a preliminary prospectus, which untrue statement or
omission was completely corrected in the Prospectus (as then amended or
supplemented) if the Company and the Selling Stockholders shall sustain the
burden of proving that (i) the Underwriters sold Shares to the person alleging
such loss, claim, liability, expense or damage without sending or giving, at or
prior to the written confirmation of such sale, a copy of the Prospectus (as
then amended or supplemented) and (ii) the Company or the Selling Stockholders
had previously furnished copies thereof to the Underwriters within a reasonable
amount of time prior to such sale or such confirmation, and the Underwriters
failed to deliver the corrected Prospectus, if required by law to have so
delivered it and if delivered would have been a complete defense against the
person asserting such loss, claim, liability, expense or damage. This
indemnity agreement will be in addition to any liability that the Company or
any Selling Stockholder might otherwise have. The Company and each of the
Selling stockholders hereby acknowledges and agrees that its indemnification
obligations in this Section 7(a) shall be without limit with respect to all
such losses, claims, liabilities, expenses or damages arising in connection
with the offer and sale of any of the Shares, including, without limitation,
the Option Shares, and the Company and the Selling Stockholders further
acknowledge and agree that such indemnification is in the Company's and the
Selling Stockholders' interest and necessary in order to induce the
Underwriters to enter into this Agreement and to offer and sell the Shares.
(b) Each Underwriter will indemnify and hold harmless the Company, the
Selling Stockholders, each person, if any, who controls the Company or the
Selling Stockholders within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, each director of the Company and each officer of the
Company who signs the Registration Statement to the same extent as the
foregoing indemnity from the Company and the Selling Stockholders to each
Underwriter, but only insofar as losses, claims, liabilities, expenses or
damages arise out of or are based on any untrue statement or omission or
alleged untrue statement or omission made in reliance on and in conformity with
information relating to any Underwriter furnished in writing to the Company by
the Representatives on behalf of such Underwriter expressly for use in the
Registration Statement, the Preliminary Prospectus or the Prospectus. This
indemnity will be in addition to any liability that each Underwriter might
otherwise have; provided, however, that in no case shall any Underwriter be
liable or responsible for any amount in excess of the underwriting discounts
and commissions received by such Underwriter.
(c) Any party that proposes to assert the right to be indemnified under
this Section 7 will promptly after receipt of notice of commencement of any
action against such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section 7 notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not
relieve it from any liability that it may have to any indemnified party under
the foregoing provisions of this Section 7 unless, and only to the extent that,
such omission results in the forfeiture of substantive rights or defenses by
the indemnifying party. If any such action is brought against any indemnified
party and it notifies the
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indemnifying party of its commencement, the indemnifying party will be entitled
to participate in and, to the extent that it elects by delivering written
notice to the indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly with any other
indemnifying party similarly notified, to assume the defense of the action,
with counsel reasonably satisfactory to the indemnified party, and after notice
from the indemnifying party to the indemnified party of its election to assume
the defense, the indemnifying party will not be liable to the indemnified party
for any legal or other expenses except as provided below and except for the
reasonable costs of investigation subsequently incurred by the indemnified
party in connection with the defense. The indemnified party will have the
right to employ its own counsel in any such action, but the fees, expenses and
other charges of such counsel will be at the expense of such indemnified party
unless (1) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the indemnified party has
reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are different from
or in addition to those available to the indemnifying party, (3) a conflict or
potential conflict exists (based on advice of counsel to the indemnified party)
between the indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such action
on behalf of the indemnified party) or (4) the indemnifying party has not in
fact employed counsel to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of which
cases the reasonable fees, disbursements and other charges of counsel will be
at the expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable
fees, disbursements and other charges of more than one separate firm admitted
to practice in such jurisdiction at any one time for all such indemnified party
or parties. All such fees, disbursements and other charges will be reimbursed
by the indemnifying party promptly as they are incurred. An indemnifying party
will not be liable for any settlement of any action or claim effected without
its written consent (which consent will not be unreasonably withheld). No
indemnifying party shall, without the prior written consent of each indemnified
party, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding relating to the matters
contemplated by this Section 7 (whether or not any indemnified party is a party
thereto), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising or
that may arise out of such claim, action or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 7 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company, the Selling Stockholders
or the Underwriters, the Company, the Selling Stockholders and the Underwriters
will contribute to the total losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted, but after deducting any contribution received
by the Company or the Selling Stockholders from persons other than the
Underwriters, such as
25
25
persons who control the Company or the Selling Stockholders within the meaning
of the Act, officers of the Company who signed the Registration Statement and
directors of the Company, who also may be liable for contribution) to which the
Company or the Selling Stockholders and any one or more of the Underwriters may
be subject in such proportion as shall be appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other. 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 (before deducting expenses) received by the Company
and the Selling Stockholders bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus and the footnotes thereto. If, but
only if, the allocation provided by the foregoing sentence is not permitted by
applicable law, the allocation of contribution shall be made in such proportion
as is appropriate to reflect not only the relative benefits referred to in the
foregoing sentence but also the relative fault of the Company and the Selling
Stockholders, on the one hand, and the Underwriters, on the other, with respect
to the statements or omissions which resulted in such loss, claim, liability,
expense or damage, or action in respect thereof, as well as any other relevant
equitable considerations with respect to such offering. Such relative fault
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company, the Selling
Stockholders or the Representatives on behalf of the Underwriters, the intent
of the parties and their relative 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 contributions pursuant to this Section 7(d) were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, liability,
expense or damage, or action in respect thereof, referred to above in this
Section 7(d) shall be deemed to include, for purpose of this Section 7(d), 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(d), no Underwriter shall be
required to contribute any amount in excess of the underwriting discounts and
commissions received by it, and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) will be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 7(d) are several in proportion to their respective underwriting
obligations and not joint. For purposes of this Section 7(d), any person who
controls a party to this Agreement within the meaning of the Act will have the
same rights to contribution as that party, and each officer of the Company who
signed the Registration Statement will have the same rights to contribution as
the Company, subject in each case to the provisions hereof. Any party entitled
to contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made
under this Section 7(d), will notify any such party or parties
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26
from whom contribution may be sought, but the omission so to notify will not
relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have under this Section 7 (d). Except for a
settlement entered into pursuant to the last sentence of Section 7 (c) hereof,
no party will be liable for contribution with respect to any action or claim
settled without its written consent (which consent will not be unreasonably
withheld).
(e) The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company and the Selling
Stockholders contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any investigation made by or on behalf of
the Underwriters, (ii) acceptance of the Shares and payment therefor or (iii)
any termination of this Agreement.
8. Termination. The obligations of the several Underwriters under this
Agreement may be terminated at any time on or prior to the Closing Date (or,
with respect to the Option Shares, on or prior to the Option Closing Date), by
notice to the Company from the Representatives, without liability on the part
of any Underwriter to the Company or any Selling stockholders, if, prior to
delivery and payment for the Shares (or the Option Shares, as the case may be),
in the sole judgment of the Representatives, (i) there has been, since the
respective dates as of which information is given in the Registration
Statement, any material adverse change in the Company's business, properties,
business prospects, condition (financial or otherwise) or results of
operations, (ii) trading in any of the equity securities of the Company shall
have been suspended by the Commission, the NASD, by an exchange that lists the
Shares or by the Nasdaq Stock Market, (iii) trading in securities generally on
the New York Stock Exchange or the Nasdaq Stock Market shall have been
suspended or limited or minimum or maximum prices shall have been generally
established on such exchange or over the counter market, or additional material
governmental restrictions, not in force on the date of this Agreement, shall
have been imposed upon trading in securities generally by such exchange or by
order of the Commission or the NASD or any court or other governmental
authority, (iv) a general banking moratorium shall have been declared by either
Federal or New York State authorities or (v) any material adverse change in the
financial or securities markets in the United States or in political, financial
or economic conditions in the United States or any outbreak or material
escalation of hostilities or declaration by the United States of a national
emergency or war or other calamity or crisis shall have occurred the effect of
any of which is such as to make it, in the sole judgment of the
Representatives, impracticable or inadvisable to market the Shares on the terms
and in the manner contemplated by the Prospectus.
9. Substitution of Underwriters. If any one or more of the Underwriters
shall fail or refuse to purchase any of the Firm Shares which it or they have
agreed to purchase hereunder, and the aggregate number of Firm Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate number of Firm Shares, the
other Underwriters shall be obligated, severally, to purchase the Firm Shares
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase, in the proportions which the number of Firm Shares which
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27
they have respectively agreed to purchase pursuant to Section 1 bears to the
aggregate number of Firm Shares which all such non-defaulting Underwriters have
so agreed to purchase, or in such other proportions as the Representatives may
specify; provided that in no event shall the maximum number of Firm Shares
which any Underwriter has become obligated to purchase pursuant to Section 1 be
increased pursuant to this Section 9 by more than one-ninth of the number of
Firm Shares agreed to be purchased by such Underwriter, without the prior
written consent of such Underwriter. If any Underwriter or Underwriters shall
fail or refuse to purchase any Firm Shares and the aggregate number of Firm
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase exceeds one-tenth of the aggregate number of the Firm
Shares and arrangements satisfactory to the Representatives and the Company for
the purchase of such Firm Shares are not made within 48 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Selling Stockholders or the Company for the
purchase or sale of any Shares under this Agreement. In any such case either
the Representatives or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken pursuant to
this Section 8 shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
10. Miscellaneous. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and, unless otherwise specified, shall be mailed
or delivered (a) if to the Company, at the office of the Company, 0000 Xxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxxxx 00000-0000, Attention: President, (b) if to the
Selling Stockholders, in care of Xxxxxx X. Xxxxxx, Esq., 000 Xxxxxxxx Xxxxxx,
Xxxx Xxxx, Xxxxxxxxxx 00000, or (c) if to the Underwriters, to the
Representatives at the offices of PaineWebber Incorporated, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Finance Department.
Any such notice shall be effective only upon receipt. Any notice under Section
8 or 9 may be made by telex or telephone, but if so made shall be subsequently
confirmed in writing.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Selling Stockholders and the Company and of the
controlling persons, directors and officers referred to in Section 7, and their
respective successors and assigns, and no other person shall acquire or have
any right under or by virtue of this Agreement. The term "successors and
assigns" as used in this Agreement shall not include a purchaser, as such
purchaser, of Shares from any of the several Underwriters.
All representations, warranties and agreements of the Company and the
Selling Stockholders contained herein or in certificates or other instruments
delivered pursuant hereto, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Underwriter or any
of its controlling persons and shall survive delivery of and payment for the
Shares hereunder.
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28
Any action required or permitted to be taken by the Representatives
under this Agreement may be taken by them jointly or by PaineWebber
Incorporated.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
The Company, the Selling Stockholders and the Underwriters each hereby
irrevocably waive any right they may have to a trial by jury in respect of any
claim based upon or arising out of this Agreement or the transactions
contemplated hereby.
This Agreement may not be amended or otherwise modified or any
provision hereof waived except by an instrument in writing signed by the
Representatives, the Selling Stockholders and the Company.
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29
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
The Company:
STERIGENICS INTERNATIONAL, INC.
By: _______________________________
Title:
The Selling Stockholders:
[_________________________________]
By: _______________________________
Title:
[_________________________________]
By: _______________________________
Title:
[_________________________________]
By: ______________________________
Title:
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30
Confirmed as of the date first
above mentioned:
The Representatives:
PAINEWEBBER INCORPORATED
XXXXX XXXXXXX INC.
Acting on behalf of themselves and as the
Representatives of the other several
Underwriters named in Schedule I hereof.
PAINEWEBBER INCORPORATED
By: _____________________________
Title:
XXXXX XXXXXXX INC.
By: _____________________________
Title:
31
SCHEDULE I
UNDERWRITERS
Number of
Name of Underwriters Firm Shares
to be Purchased
32
SCHEDULE II
SELLING STOCKHOLDERS
Number
Name of of Firm
Selling Stockholders Shares to be Sold
33
EXHIBIT A
STERIGENICS INTERNATIONAL, INC.
PRICE DETERMINATION AGREEMENT
February __, 1998
PAINEWEBBER INCORPORATED
XXXXX XXXXXXX INC.
As Representatives of the several Underwriters
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the Underwriting Agreement, dated February __,
1998 (the "Underwriting Agreement"), among SteriGenics International, Inc., a
Delaware corporation (the "Company"), the Selling Stockholders named in
Schedule II thereto or hereto (the "Selling Stockholders") and the several
Underwriters named in Schedule I thereto or hereto (the "Underwriters"), for
whom PaineWebber Incorporated and Xxxxx Xxxxxxx Inc. are acting as
representatives (the "Representatives"). The Underwriting Agreement provides
for the purchase by the Underwriters from the Company and the Selling
Stockholders, subject to the terms and conditions set forth therein, of an
aggregate of 2,000,000 shares (the "Firm Shares") of the Company's common
stock, $0.001 par value per share. This Agreement is the Price Determination
Agreement referred to in the Underwriting Agreement.
Pursuant to Section 1 of the Underwriting Agreement, the undersigned
agree with the Representatives as follows:
The public offering price per share for the Firm Shares shall be
$[_____].
The purchase price per share for the Firm Shares to be paid by the
several Underwriters shall be $[_____] representing an amount equal to the
public offering price set forth above, less $[_____] per share.
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The Company represents and warrants to each of the Underwriters that
the representations and warranties of the Company set forth in Section 3 of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
The Selling Stockholders represent and warrant to each of the
Underwriters that the representations and warranties of the Selling
Stockholders set forth in Section 4 of the Underwriting Agreement are accurate
as though expressly made at and as of the date hereof.
As contemplated by the Underwriting Agreement, attached as Schedule I
is a completed list of the several Underwriters, which shall be a part of this
Agreement and the Underwriting Agreement.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE.
If the foregoing is in accordance with your understanding of the
agreement among the Underwriters and the Company, please sign and return to the
Company a counterpart hereof, whereupon this instrument along with all
counterparts and together with the Underwriting Agreement shall be a binding
agreement among the Underwriters and the Company in accordance with its terms
and the terms of the Underwriting Agreement.
Very truly yours,
STERIGENICS INTERNATIONAL, INC.
By: ________________________________
Title:
[____________________________]
By: ________________________________
Title:
[____________________________]
By: ________________________________
Title:
[____________________________]
By: ________________________________
Title:
35
2
Confirmed as of the date
first above mentioned:
PAINEWEBBER INCORPORATED
XXXXX XXXXXXX INC.
Acting on behalf of themselves
and as the Representatives
of the other several Underwriters
named in Schedule I hereof.
PAINEWEBBER INCORPORATED
By: ________________________________
Title:
XXXXX XXXXXXX INC.
By: ________________________________
Title:
36
EXHIBIT B
CUSTODY AGREEMENT AND POWER OF ATTORNEY
37
EXHIBIT C
January 29, 1998
PAINEWEBBER INCORPORATED
XXXXX XXXXXXX INC.
As Representative of the
several Underwriters
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
In consideration of the agreement of the several Underwriters, for
which PaineWebber Incorporated and Xxxxx Xxxxxxx Inc. (the "Representatives")
intend to act as Representatives to underwrite a proposed public offering (the
"Offering") of shares of Common Stock (the "Common Stock") of Sterigenics
International, as contemplated by a registration statement with respect to such
shares to be filed with the Securities and Exchange Commission on Form S-1 on
or about February __, 1998, the undersigned hereby agrees that the undersigned
will not, for a period of 75 days after the commencement of the public offering
of such shares, without the prior written consent of PaineWebber Incorporated,
offer to sell, sell, contract to sell, grant any option to sell, or otherwise
dispose of, or require the Company to file with the Securities and Exchange
Commission a registration statement under the Securities Act of 1933 to
register any shares of Common Stock or securities convertible into or
exchangeable for Common Stock or warrants or other rights to acquire shares of
Common Stock of which the undersigned is now, or may in the future become, the
beneficial owner within the meaning of Rule 13d-3 under the Securities Exchange
Act of 1934).
Very truly yours,
By:________________________________
Print Name:________________________
38
EXHIBIT D
Form of Opinion of
Counsel to the Company
1. The Company and each of its Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has full corporate power and authority to
conduct all the activities conducted by it, to own or lease all the assets
owned or leased by it and to conduct its business as described in the
Registration Statement and the Prospectus. The Company is the sole record
owner and, to our knowledge, the sole beneficial owner of all of the capital
stock of each of its Subsidiaries.
2. All of the outstanding shares of Common Stock have been, and
the Shares, when paid for by the Underwriters in accordance with the terms of
the Agreement, will be, duly authorized, validly issued, fully paid and
nonassessable and will not be subject to any preemptive or similar right under
(i) the statutes, judicial and administrative decisions, and the rules and
regulations of the governmental agencies of the State of Delaware, (ii) the
Company's certificate of incorporation or by-laws or (iii) any instrument,
document, contract or other agreement referred to in the Registration Statement
or any instrument, document, contract or agreement filed as an exhibit to the
Registration Statement. Except as described in the Registration Statement or
the Prospectus, to the best of our knowledge, there is no commitment or
arrangement to issue, and there are no outstanding options, warrants or other
rights calling for the issuance of, any share of capital stock of the Company
or any Subsidiary to any person or any security or other instrument that by its
terms is convertible into, exercisable for or exchangeable for capital stock of
the Company.
3. No consent, approval, authorization or order of, or any filing
or declaration with, any court or governmental agency or body is required in
connection with the authorization, issuance, transfer, sale or delivery of the
Shares by the Company, in connection with the execution, delivery and
performance of the Agreement by the Company or in connection with the taking by
the Company of any action contemplated thereby [or, if so required, all such
consents, approvals, authorizations and orders, [specifying the same] have been
obtained and are in full force and effect], except such as have been obtained
under the Act and the Rules and Regulations and such as may be required under
state securities or "Blue Sky" laws or by the by-laws and rules of the NASD in
connection with the purchase and distribution by the Underwriters of the Shares
to be sold by the Company. All references in this opinion to the Agreement
shall include the Price Determination Agreement.
4. The authorized, issued and outstanding capital stock of the
Company is as set forth in the Registration Statement and the Prospectus under
the caption "Capitalization." The description of the Common Stock contained in
the Prospectus is complete and accurate in all material respects. The form of
certificate used to evidence the Common Stock is in due and proper form and
complies with all applicable statutory requirements.
39
5. The Registration Statement and the Prospectus comply in all
material respects as to form with the requirements of the Act and the Rules and
Regulations (except that we express no opinion as to financial statements,
schedules and other financial data contained in the Registration Statement or
the Prospectus.
6. To the best of our knowledge, any instrument, document, lease,
license, contract or other agreement (collectively, "Documents") required to be
described or referred to in the Registration Statement or the Prospectus has
been properly described or referred to therein and any Document required to be
filed as an exhibit to the Registration Statement has been filed as an exhibit
thereto or has been incorporated as an exhibit by reference in the Registration
Statement; and no default exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any Document
filed or required to be filed as an exhibit to the Registration Statement.
7. To the best of our knowledge, except as disclosed in the
Registration Statement or the Prospectus, no person or entity has the right to
require the registration under the Act of shares of Common Stock or other
securities of the Company by reason of the filing or effectiveness of the
Registration Statement.
8. To the best of our knowledge, the Company is not in violation
of, or in default with respect to, any law, rule, regulation, order, judgment
or decree, except as may be described in the Prospectus or such as in the
aggregate do not now have and will not in the future have a material adverse
effect upon the operations, business or assets of the Company and the
Subsidiaries, taken as a whole.
9. All descriptions in the Prospectus of statutes, regulations or
legal or governmental proceedings are accurate and fairly present the
information required to be shown.
10. The Company has full corporate power and authority to enter
into the Agreement, and the Agreement has been duly authorized, executed and
delivered by the Company[, is a valid and binding agreement of the Company and,
except for the indemnification and contribution provisions thereof, as to which
we express no opinion, is enforceable against the Company in accordance with
the terms thereof].
11. The execution and delivery by the Company of, and the
performance by the Company of its agreements in, the Agreement do not and will
not (i) violate the certificate of incorporation or by-laws of the Company,
(ii) breach or result in a default under, cause the time for performance of any
obligation to be accelerated under, or result in the creation or imposition of
any lien, charge or encumbrance upon any of the assets of the Company or any of
its Subsidiaries pursuant to the terms of, (x) any indenture, mortgage, deed of
trust, loan agreement, bond, debenture, note agreement, capital lease or other
evidence of indebtedness of which we have knowledge, (y) any voting trust
arrangement or any contract or other agreement to which the Company is a party
that restricts the ability of the Company to issue securities and of which we
have knowledge or (z) any Document filed as an exhibit to the Registration
Statement, (iii) breach or
40
otherwise violate any existing obligation of the Company under any court or
administrative order, judgment or decree of which we have knowledge or (iv)
violate applicable provisions of any statute or regulation in the States of
Delaware, California, [New Jersey, ____________ or ____________] or of the
United States.
12. Delivery of certificates for the Shares will transfer valid
and marketable title thereto to each Underwriter that has purchased such Shares
in good faith and without notice of any adverse claim with respect thereto.
13. The Company is not an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act of 1940, as
amended.
14. The Shares have been duly authorized for listing by the Nasdaq
National Market upon official notice of issuance.
15. We hereby confirm to you that we have been advised by the
Commission that the Registration Statement has become effective under the Act
and that no order suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose has been instituted or is
pending, threatened or contemplated.
16. We hereby further confirm to you that there are no actions,
suits, proceedings or investigations pending or, to our knowledge, overtly
threatened in writing against the Company or any of its Subsidiaries, or any of
their respective officers or directors in their capacities as such, before or
by any court, governmental agency or arbitrator which (i) seek to challenge the
legality or enforceability of the Agreement, (ii) seek to challenge the
legality or enforceability of any of the Documents filed, or required to be
filed, as exhibits to the Registration Statement, (iii) seek damages or other
remedies with respect to any of the Documents filed, or required to be filed,
as exhibits to the Registration Statement, (iv) except as set forth in or
contemplated by the Registration Statement and the Prospectus, seek money
damages in excess of $50,000 or seek to impose criminal penalties upon the
Company, any of its Subsidiaries or any of their respective officers or
directors in their capacities as such and of which we have knowledge or (v)
seek to enjoin any of the business activities of the Company or any of its
Subsidiaries or the transactions described in the Prospectus and of which we
have knowledge.
17. The Company has timely filed all reports, schedules, forms,
statements and other documents required to be filed by it with the United
States Securities and Exchange Commission pursuant to the reporting
requirements of the Securities Exchange Act of 1934, as amended.
18. We have participated in the preparation of the Registration
Statement and the Prospectus and, without assuming any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus or
41
in any amendment or supplement thereto, nothing has come to our attention that
causes us to believe that, both as of the Effective Date and as of the Closing
Date and the Option Closing Date, the Registration Statement or any amendment
thereto contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that any Prospectus
or any amendment or supplement thereto, at the time such Prospectus was issued,
at the time any such amended or supplemented Prospectus was issued, at the
Closing Date and the Option Closing Date, contained or contains any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except that we
express no opinion as to financial statements, schedules and other financial
data contained in the Registration Statement or the Prospectus [or incorporated
by reference therein).
[The foregoing opinion is subject to the qualification that the
enforceability of the Agreement may be: (i) subject to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally; and (ii) subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in equity)
including principles of commercial reasonableness or conscionability and an
implied covenant of good faith and fair dealing.]
This letter is furnished by us solely for your benefit in connection
with the transactions referred to in the Agreement and may not be circulated
to, or relied upon by, any other person, except that this letter may be relied
upon by your counsel in connection with the opinion letter to be delivered to
you pursuant to Section 5(g) of the Agreement.
In rendering the foregoing opinion, counsel may rely, to the extent
they deem such reliance proper, on the opinions (in form and substance
reasonably satisfactory to Underwriters' counsel) of other counsel reasonably
acceptable to Underwriters' counsel as to matters governed by the laws of
jurisdictions other than the United States and the State of California and the
General Corporation Law of the State of Delaware, and as to matters of fact,
upon certificates of officers of the Company and of government officials;
provided that such counsel shall state that the opinion of any other counsel is
in form satisfactory to such counsel. Copies of all such opinions and
certificates shall be furnished to counsel to the Underwriters on the Closing
Date.
42
EXHIBIT E
Form of Opinion
of Counsel to the
Selling Stockholders
1. Each of the Selling Stockholders has full power and authority
to enter into the Agreement and the Agreement and Power of Attorney and to
sell, transfer and deliver such Shares pursuant to the Agreement and the
Agreement and Power of Attorney. All authorizations and consents necessary for
the execution and delivery of the Agreement and the Agreement and Power of
Attorney on behalf of each of the Selling Stockholders has been given. The
delivery of the Shares on behalf of the Selling Stockholders pursuant to the
terms of the Agreement and payment therefor by the Underwriters will transfer
good and marketable title to the Shares to the several Underwriters purchasing
the Shares, free and clear of all liens, encumbrance and claims whatsoever.
2. Each of the Agreement and the Agreement and Power of Attorney
has been duly authorized, executed and delivered by or on behalf of each of the
Selling Stockholders, is a valid and binding agreement of each Selling
Stockholder and, except for the indemnification and contribution provisions of
the Agreement, the Agreement and the Agreement and Power of Attorney are
enforceable against the Selling Stockholders in accordance with the terms
thereof.
3. No consent, approval, authorization or order of, or any filing
or declaration with, any court or governmental agency or body is required in
connection with the authorization, issuance, transfer, sale or delivery of the
Shares by or on behalf of the Selling Stockholders, in connection with the
execution, delivery and performance of the Agreement1/ and the Agreement and
Power of Attorney by or on behalf of the Selling Stockholders or in connection
with the taking by or on behalf of the Selling Stockholders of any action
contemplated thereby [or, if so required, all such consents, approvals,
authorizations and orders [specifying the same] have been obtained and are in
full force and effect], except such as have been obtained under the Act or the
Rules and Regulations and such as may be required under state securities or
"Blue Sky" laws or by the by-laws and rules of the NASD in connection with the
purchase and distribution by the Underwriters of the Shares to be sold by the
Selling Stockholders.
4. The execution and delivery by the Selling Stockholders of, and
the performance by the Selling Stockholders of their agreements in, the
Agreement and the Agreement and Power of Attorney, do not and will not (i)
violate the certificate of incorporation or by-laws of any corporate Selling
Stockholder, (ii) breach or result in a default under, cause the time for
performance of any obligation to be accelerated under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of the
assets of any Selling Stockholder pursuant to the terms of, (x) any indenture,
mortgage, deed of trust, loan agreement, bond, debenture, note agreement,
capital lease or other evidence of indebtedness of which we have knowledge, (y)
any voting trust
__________________________________
1/ All references in this opinion to the Agreement shall include the
Price Determination Agreement.
43
arrangement or any contract or other agreement to which any Selling Stockholder
is a party that restricts the ability of any such Selling Stockholder to issue
securities and of which we have knowledge or (2) any other contract or other
agreement of which we have knowledge, (iii) breach or otherwise violate any
existing obligation of any Selling Stockholder under any court or
administrative order, judgment or decree of which we have knowledge or (iv)
violate applicable provisions of any statute or regulation in the State of
California or of any federal statute or regulation of the United States.
5. There are no transfer or similar taxes payable in connection
with the sale and delivery of the Shares by the Selling Stockholders to the
several Underwriters, except as specified in such opinion.
