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Exhibit 1.2
IMPLANT SCIENCES CORPORATION
1,000,000 UNITS
EACH UNIT CONSISTING OF
ONE SHARE
OF COMMON STOCK
AND
ONE COMMON STOCK PURCHASE REDEEMABLE WARRANT
UNDERWRITING AGREEMENT
, 1999
Westport Resources Investment Services, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Implant Sciences Corporation a Massachusetts corporation (the "Company"),
proposes to issue and sell to the several Underwriters named in Schedule I
hereto, who are acting severally and not jointly, (the "Underwriters"), one
million units (1,000,000), (the "Units") each Unit consisting of one share of
common stock of the Company and one redeemable common stock purchase warrant
(the "Warrant(s)") (the Units, Common Stock and Warrants collectively referred
to as the "Securities"). The Company hereby confirms the agreement made by it
with respect to the purchase of the Securities by the Underwriter (s), which
Securities are more fully described in the Registration Statement referred to
below. Westport Resources Investment Services, Inc. is referred to herein as the
"Representative" and along with ▇▇▇▇▇▇▇▇▇ Securities, Inc. and ▇▇▇▇▇▇▇▇▇
Securities Corporation as the "Underwriters".
You have advised the Company that the Underwriters desire to act on a firm
commitment basis to publicly offer and sell the Securities for the Company and
that you are authorized to execute this Agreement. The Company confirms the
agreement made by it with respect to the relationship with the Underwriters as
follows:
1. Filing of Registration Statement with S.E.C. and Definitions. A
Registration Statement and Prospectus on Form SB-2 (File No. 333-64499)
with respect to the Securities has been carefully and accurately
prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), and the published rules
and regulations (the "Rules and Regulations") thereunder or under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and
has been declared effective with the Securities and Exchange Commission
(the "Commission") on April 30, 1999 and in such other states that the
Underwriter deemed necessary in its discretion to so file to permit a
public offering and trading thereunder. Such registration statement,
including the prospectus, Part II, and all financial schedules and
exhibits thereto, as amended at the time when it shall become
effective, is herein referred to as the "Registration Statement," and
any prospectus included as part of the Registration Statement on file
with the Commission that discloses all the information that was omitted
from the prospectus on the effective date pursuant to Rule 430A of the
Rules and Regulations with any changes contained in any prospectus
filed with the Commission by the Company with the Underwriters consent
after the effective date of the Registration Statement, is herein
referred to as the "Final Prospectus." The prospectus included as part
of the Registration Statement of the Company and in any amendments
thereto prior to the post-effective date of the Registration Statement
is referred to herein as a "Second Preliminary Prospectus."
2. Discount, Delivery, and Sale of the Securities
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(a) Subject to the terms and conditions of this Agreement, and on the
basis of the representations, warranties, and agreements herein contained, the
Company agrees to sell to, and the Underwriters agree to buy from the Company at
a purchase price of $ 6.75 per Unit before any underwriter expense allowances,
an aggregate of 1,000,000 Units on a firm commitment basis the "Initial
Securities". It is understood that the Underwriters propose to reoffer the
Securities to be purchased hereunder to the public upon the terms and conditions
set forth in the Registration Statement, after the post-effective Registration
Statement becomes effective.
(b) Delivery of the Securities against payment of the purchase price
therefor by certified or official bank check or checks or wire transfer in
next-day funds, payable to the order of the Company shall take place at the
offices of the clearing broker for the Representative at New York City, within
three (3) business day after the Securities are first traded (or such other
place as may be designated by agreement between you and the Company) at 11:00
A.M., New York time or such time and date as you and the Company may agree upon
in writing, such time and date of payment and delivery for the Securities being
herein called the "Initial Closing Date."
The Company will make the certificates for the Units and for the shares of
Common Stock and Warrants to be purchased by the Underwriters hereunder
available to the Underwriter for inspection and packaging at least two (2) full
business days prior to the Initial Closing Date. The Unit certificates shall be
in such names and denominations as the Underwriter may request to the Company in
writing at least four (4) full business days prior to any Closing Date.
(c) In addition, subject to the terms and conditions of this Agreement and
on the basis of the representations, warranties and agreements herein contained,
the Company grants an option to the Underwriters to purchase up to an additional
150,000 Units ("Option Securities") at the same terms as the Underwriters shall
pay for the Initial Securities being sold by the Company pursuant to the
provisions of Section 2(a) hereof. This option may be exercised from time to
time, for the purpose of covering overallotments, within forty-five (45) days
after (i) the effective date of the Registration Statement if the Company has
elected not to rely on Rule 430A under the Rules and Regulations or (ii) the
date of this Agreement if the Company has elected to rely upon Rule 430A under
the Rules and Regulations, upon written notice by the Underwriter setting forth
the number of Option Securities as to which the Underwriter is exercising the
option and the time and date at which such certificates are to be delivered.
Such time and date shall be determined by the Underwriter but shall not be
earlier than four (4) nor later than ten (10) full business days after the date
of the exercise of said option. Nothing herein shall obligate the Underwriter to
make any overallotment.
(d) Definitive certificates in negotiable form for the Securities to be
purchased by the Underwriter(s) hereunder will be delivered at the closing by
the Company to the Underwriters against payment of the purchase price by the
Underwriters by certified or bank cashier's checks or wire transfer in funds
payable to the order of the Company.
(e) The information set forth under "Underwriting" in any second preliminary
prospectus and Prospectus relating to the Securities and the information set
forth in the front cover page, and within the prospectus concerning
stabilization and over-allotment by the Underwriters, and (insofar as such
information relates to the Underwriters) constitutes the only information
furnished by the Underwriters to the Company for inclusion therein, and you
represent and warrant to the Company that the statements made therein are
correct.
(f) On the Initial Closing Date, the Company shall issue and sell to the
Underwriters, warrants (the "Underwriters' Warrants") at a purchase price of
$.001 per Underwriters' Warrant, which shall entitle the holders thereof to
purchase an aggregate of 100,000 Shares of Common Stock and 100,000 Redeemable
Warrants. The shares of Common Stock and Redeemable Warrants issuable upon the
exercise of the Underwriters' Warrants are hereafter referred to as the
"Underwriter's Securities" or "Underwriter's Warrants." The shares of Common
Stock issuable upon exercise of the redeemable warrants are hereinafter referred
to collectively as the "Underwriters Warrant Shares". The Underwriters' Warrants
for all securities shall be exercisable for a period of four (4) years
commencing one (1) year from the effective date of the Registration Statement at
a price equaling one hundred sixty percent (160%) of the initial public offering
price of the Securities. The form of Underwriters' Warrant shall be
substantially in the form filed as an Exhibit to the Registration Statement.
Payment for the Underwriters' Warrants shall be made on the Initial Closing
Date.
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3. Representations and Warranties of the Company.
(a) The Company represents and warrants to you as follows:
(i) The Company has prepared and filed with the Commission a registration
statement, and an amendment or amendments thereto, on Form SB-2 (No. 333-64499),
including any related Preliminary Prospectus for the registration of the
Securities, the Underwriters' Warrant and the Underwriters' Warrant Shares
(sometimes referred to herein collectively as the "Registered Securities"),
under the Act, which registration statement and amendment or amendments have
been prepared by the Company in conformity with the requirements of the Act, and
the Rules and Regulations and which were declared effective by the Commission on
April 30, 1999. The Company will promptly file a further amendment to said
registration statement in the form heretofore delivered to the Underwriter and
will not file any other amendment thereto to which the Underwriter shall have
objected verbally or in writing after having been furnished with a copy thereof.
Except as the context may otherwise require, such registration statement, as
amended, on file with the Commission at the time the registration statement
becomes effective (including the prospectus, financial statements, any
schedules, exhibits and all other documents filed as a part thereof or that may
be incorporated therein (including, but not limited to those documents or
information incorporated by reference therein) and all information deemed to be
a part thereof as of such time pursuant to paragraph (b) of Rule 430(A) of the
Rules and Regulations), is hereinafter called the "Registration Statement," and
the form of prospectus in the form as filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations, is hereinafter called the "Final
Prospectus."
(ii) Neither the Commission nor any state regulatory authority has issued
any order preventing or suspending the use of any Prospectus or the Registration
Statement and no proceeding for an order suspending the effectiveness of any
prospectus or the Registration Statement or any of the Company's securities has
been instituted or is pending or threatened. Each such Prospectus and/or any
supplement thereto has conformed in all material respects with the requirements
of the Act and the Rules and Regulations and on its date did not include any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein not misleading, in light of the circumstances
under which they were made; and when the Prospectus and any supplements thereto
becomes legally effective and for twenty-five (25) days subsequent thereto (i)
the Prospectus and/or any supplement thereto will contain all statements which
are required to be stated therein by the Act and Rules and Regulations, and (ii)
the Prospectus and/or any supplement thereto will not include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, in
light of the circumstances under which they were made; provided, however, that
no representations, warranties or agreements are made hereunder as to
information contained in or omitted from the Prospectus in reliance upon, and in
conformity with, the written information furnished to the Company by you as set
forth in Section 2(e) above.
(iii)The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of its incorporation,
with full power and authority (corporate and other) to own its properties and
conduct its businesses as described in the Prospectus and is duly qualified to
do business as a foreign corporation in good standing in all other jurisdictions
in which the nature of its business or the character or location of its
properties requires such qualification, except where the failure to so qualify
would not have a material adverse effect on the business, properties or
operations of the Company as a whole.
(iv) The Company has full legal right, power and authority to authorize,
issue, deliver and sell the Securities, the Option Securities and the
Underwriters' Warrants and to enter into this Agreement, the Underwriters'
Warrant dated as of the initial closing date to be executed and delivered by the
Company to the Representative (the "Underwriters' Warrant Agreement"), and the
Financial Advisory and Investment Banking Agreement dated as of the Initial
Closing Date between the Company and the Underwriters (the "Consulting
Agreement"), and to consummate the transactions provided for in such agreements,
and each of such agreements has been duly and properly authorized, and on the
Initial Closing Date will be duly and properly executed and delivered by the
Company. This Agreement constitutes and on the Initial Closing Date each of the
Underwriters Warrant and the Consulting Agreement will then constitute
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valid and binding agreements of the Company, except as the validity and binding
nature of indemnification provisions may be limited by federal or state
securities laws).
(v) Except as disclosed in the Prospectus, the Company is not in
violation of its respective certificate or articles of incorporation or bylaws
or in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any material bond, debenture, note
or other evidence of indebtedness or in any material contract, indenture,
mortgage, loan agreement, lease, joint venture, partnership or other agreement
or instrument to which the Company is a party or by which it may be bound or is
not in material violation of any law, order, rule, regulation, writ, injunction
or decree of any governmental instrumentality or court, domestic or foreign; and
the execution and delivery of this Agreement, the Underwriters' Warrant and the
Consulting Agreement, and the consummation of the transactions contemplated
therein and in the Prospectus and compliance with the terms of each such
agreement will not conflict with, or result in a material breach of any of the
terms, conditions or provisions of, or constitute a material default under, or
result in the imposition of any material lien, charge or encumbrance upon any of
the property or assets of the Company pursuant to, any material bond, debenture,
note or other evidence of indebtedness or any material contract, indenture,
mortgage, loan agreement, lease, joint venture, partnership or other agreement
or instrument to which the Company is a party nor will such action result in the
material violation by the Company of any of the provisions of its respective
certificate or articles of incorporation or bylaws or any law, order, rule,
regulation, writ, injunction, decree of any government, governmental
instrumentality or court, domestic or foreign, except where such violation will
not have a material adverse effect on the financial condition of the Company.
(vi) The authorized, issued and outstanding capital stock of the Company is
as set forth in the Prospectus and the Company will have the adjusted
capitalization set forth therein on the Initial Closing Date; provided that the
Company may issue additional shares to the extent disclosed in the Final
Prospectus; all of the shares of issued and outstanding capital stock of the
Company set forth therein have been duly authorized, validly issued and are
fully paid and nonassessable; the holders thereof do not have any rights of
rescission with respect thereto and are not subject to personal liability for
any obligations of the Company by reason of being stockholders under the laws of
the State in which the Company is incorporated; none of such outstanding capital
stock is subject to or was issued in violation of any preemptive or similar
rights of any stockholder of the Company; and such capital stock (including the
Securities, the Option Securities and the Underwriters' Warrant) conforms in all
material respects to all statements relating thereto contained in the
Prospectus.
(vii) The Company is not a party to or bound by any instrument, agreement or
other arrangement providing for it to issue any capital stock, rights, warrants,
options or other securities, except for this Agreement or as described in the
Prospectus. The Securities, the Option Securities and the Underwriters' Warrant
are not and will not be subject to any preemptive or other similar rights of any
stockholder, have been duly authorized and, when issued, paid for and delivered
in accordance with the terms hereof, will be validly issued, fully paid and
non-assessable and will conform in all material respects to the respective
descriptions thereof contained in the Prospectus; except for payment of the
applicable purchase price payable upon exercise of the options or warrants, as
the case may be the holders thereof will not be subject to any liability solely
as such holders; all corporate action required to be taken for the
authorization, issue and sale of the Securities, the Option Securities and the
Underwriters' Warrant has been duly and validly taken; and the certificates
representing the Securities, the Option Securities and the Underwriters'
Securities will conform with all legal requirements therefor. Upon the issuance
and delivery pursuant to the terms hereof of the Securities, the Option
Securities and the Underwriter's Units to be sold by the Company hereunder, the
Underwriter will acquire good and marketable title to such Securities, Option
Securities and Underwriter's Warrant free and clear of any lien, charge, claim,
encumbrance, pledge, security interest, defect or other restriction of any kind
whatsoever other than restrictions as may be imposed under the securities laws.
(viii) The Company has good and marketable 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 or referred
to in the Prospectus or which are not materially significant or important in
relation to its business or which have been incurred in the ordinary course of
business or for taxes not yet due and payable and except for a security interest
granted to the Company's lender; except as described in the Prospectus all of
the leases and subleases under which the Company holds properties or assets as
lessee or sublessee as described in the Prospectus are in full force and effect,
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and the Company is not in material default in respect of any of the terms or
provisions of any of such leases or subleases, and no claim has been asserted to
the Company by anyone adverse to the Company's rights as lessor, sublessor,
lessee or sublessee under any of the leases or subleases mentioned above or
affecting or questioning the Company's right to the continued possession of the
leased or subleased premises or assets under any such lease or sublease; and the
Company owns or leases all such properties as are necessary to its operations as
now conducted and as contemplated to be conducted, except as otherwise stated in
the Prospectus.
(ix) The financial statements, together with related notes, set forth
in the Prospectus fairly present in all material respects the financial position
and results of operations of the Company at the respective dates and for the
respective periods to which they apply. Said statements and related notes have
been prepared in accordance with generally accepted accounting principles
applied on a basis which is consistent in all material respects during the
periods involved but any stub period has not been audited by an independent
accounting firm. There has been no material adverse change or material
development involving a prospective change in the condition, financial or
otherwise, or in the prospects, value, operation, properties, business or
results of operations of the Company whether or not arising in the ordinary
course of business, since the date of the financial statements included in the
Registration Statement and the Prospectus.
(x) Subsequent to the respective dates as of which information is
given in the Prospectus as it may be amended or supplemented, and except as
described in the Prospectus, the Company has not, directly or indirectly,
incurred any liabilities or obligations, direct or contingent, not in the
ordinary course of business or entered into any transactions not in the ordinary
course of business, which are material to the business of the Company as a whole
and there has not been any change in the capital stock of, or any incurrence of
long term debts by, the Company or any issuance of options, warrants or rights
to purchase the capital stock of the Company (other than pursuant to the
Company's 1992 and 1998 Stock Option Plans and 1998 Employee Stock Purchase
Plan) or declaration or payment of any dividend on the capital stock of the
Company or any material adverse change in the condition (financial or other),
net worth or results of operations of the Company as a whole and the Company has
not become a party to, any material litigation whether or not in the ordinary
course of business.
(xi) To the knowledge of the Company, except as disclosed in the
Prospectus there is no pending or threatened, action, suit or proceeding to
which the Company is a party before or by any court or governmental agency or
body, which might result in any material adverse change in the condition
(financial or other), business or prospects of the Company as a whole or might
materially and adversely affect the properties or assets of the Company as a
whole nor are there any actions, suits or proceedings against the Company
related to environmental matters or related to discrimination on the basis of
age, sex, religion or race which might be expected to materially and adversely
affect the conduct of the business, property, operations, financial condition or
earnings of the Company as a whole; and no labor disturbance by the employees of
the Company individually exists or is, to the knowledge of the Company, imminent
which might be expected to materially and adversely affect the conduct of the
business, property, operations, financial condition or earnings of the Company
as a whole.
(xii) Except as may be disclosed in the Prospectus, the Company has
properly prepared and filed all necessary federal, state, local and foreign
income and franchise tax returns, has paid all taxes shown as due thereon, has
established adequate reserves for such taxes which are not yet due and payable,
and does not have any tax deficiency or claims outstanding, proposed or assessed
against it.
(xiii) Except as may be disclosed in the Prospectus, the Company has
sufficient licenses, permits, right to use trade or service marks and other
governmental authorizations currently required for the conduct of its business
as now being conducted and as contemplated to be conducted and the Company is in
all material respects complying therewith. Except as set forth in the
Prospectus, the expiration of any such licenses, permits, or other governmental
authorizations would not materially affect the Company's operations. To its
knowledge, none of the activities or businesses of the Company are in material
violation of, or cause the Company to materially violate any law, rule,
regulations, or order of the United States, any state, county or locality, or of
any agency or body of the United States or of any state, county or locality the
violation of which would have a material adverse effect on the business
properties or financial condition of the Company taken as a whole.
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(xiv) The Company has not at any time (i) made any contributions to any
candidate for political office in violation of law, or failed to disclose fully
any such contribution, or (ii) made any payment to any state, federal or foreign
governmental officer or official, or other person charged with similar public or
quasipublic duties, other than payments required or allowed by applicable law.
(xv) Except as set forth in the Prospectus the Company knows of no
outstanding claims for services either in the nature of a finder's fee,
brokerage fee or otherwise with respect to this financing for which the Company
or the Underwriters may be responsible, or which may affect the Underwriter's
compensation as determined by the National Association of Securities Dealers
Regulation, Inc. ("NASD") except as otherwise disclosed in the Prospectus or
known by the Underwriters.
(xvi) The Company has its property adequately insured against loss or
damage by fire and maintains such other insurance as is customarily maintained
by companies in the same or similar business.
(xvii) The Underwriters' Warrants herein described are duly and validly
authorized and upon delivery to the Underwriters in accordance herewith will be
duly issued and legal, valid and binding obligations of the Company, except as
the enforceability thereof may be limited by bankruptcy or other similar laws
affecting the rights of creditors generally or by equitable principles, and
except as the enforcement of indemnification provisions may be limited by
federal or state securities laws.
The Underwriters' Securities issuable upon exercise of any of
the Underwriter's Warrants have been duly authorized, and when issued upon
payment of the exercise price therefor, will be validly issued, fully paid and
nonassessable.
(xviii) Except as set forth in the Prospectus, no default exists in the
due performance and observance of any term, covenant or condition of any
material license, contract, indenture, mortgage, installment sale agreement,
lease, deed of trust, voting trust agreement, stockholders agreement, note, loan
or credit agreement, purchase order, or any other agreement or instrument
evidencing an obligation for borrowed money, or any other material agreement or
instrument to which the Company is a party or by which the Company may be bound
or to which the property or assets (tangible or intangible) of the Company is
subject or affected.
(xix) The Company has generally enjoyed a satisfactory
employer-employee relationship with its employees and, is in substantial
compliance in all material respects with all federal, state, local, and foreign
laws and regulations respecting employment and employment practices, terms and
conditions of employment and wages and hours. To the best of the Company's
knowledge, there are no pending investigations involving the Company, by the
U.S. Department of Labor, or any other governmental agency responsible for the
enforcement of such federal, state, local, or foreign laws and regulations.
There is no unfair labor practice charge or complaint against the Company
pending before the National Labor Relations Board or any strike, picketing,
boycott, dispute, slowdown or stoppage pending or threatened against or to its
knowledge involving the Company, or any predecessor entity, and none has ever
occurred. There is no representation question pending respecting the employees
of the Company, and no collective bargaining agreement or modification thereof
is currently being negotiated by the Company. There is no grievance or
arbitration proceeding pending or to its knowledge threatened under any expired
or existing collective bargaining agreements of the Company. No labor dispute
with the employees of the Company is pending, or, to its knowledge is imminent;
and the Company is not aware of any pending or imminent labor disturbance by the
employees of any of its principal suppliers, manufacturers or contractors which
may result in any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs, position, prospects, value,
operation, properties, business or results of operations of the Company.
(xx) Except as may be set forth in the Registration Statement, the
Company does not maintain, sponsor or contribute to any program or arrangement
that is an "employee pension benefit plan," an "employee welfare benefit plan,"
or a "multi-employer plan" as such terms are defined in Sections 3(2), 3(l) and
3(37), respectively, of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") ("ERISA Plans"). The Company does not maintain or contribute,
now or at any time previously, to a defined benefit plan, as defined in Section
3(35) of ERISA. No ERISA Plan (or any trust created thereunder) has engaged in a
"prohibited transaction" within the
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meaning of Section 406 of ERISA or Section 4975 of the Internal Revenue Code
(the "Code"), which could subject the Company to any tax penalty on prohibited
transactions and which has not adequately been corrected. Each ERISA Plan is in
compliance with all material reporting, disclosure and other requirements of the
Code and ERISA as they relate to any such ERISA Plan. The Company has never
completely or partially withdrawn from a "multi-employer plan."
(xxi) None of the Company, or any of its employees, directors,
stockholders, or affiliates (within the meaning of the Rules and Regulations)
has taken or will take, directly or indirectly, any action designed to or which
has constituted or which might be expected to cause or result in, under the
Exchange Act, or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities,
Option Securities, Underwriter's Securities or otherwise.
(xxii) Except as disclosed in the Prospectus, none of the patents,
patent applications, trademarks, service marks, trade names, copyrights, and
licenses and rights to the foregoing presently owned or held by the Company, are
in dispute or, to the knowledge of the Company's management are in any conflict
with the right of any other person or entity. The Company (i) except as
disclosed in the Prospectus owns or has the right to use, all patents,
trademarks, service marks, trade names and copyrights, technology and licenses
and rights with respect to the foregoing, used in the conduct of its business as
now conducted or proposed to be conducted without infringing upon or otherwise
acting adversely to the right or claimed right of any person, corporation or
other entity under or with respect to any of the foregoing, and except as set
forth in the Prospectus or otherwise disclosed to the Underwriters in writing,
to the best knowledge of the Company's management is not obligated or under any
liability whatsoever to make any material payments by way of royalties, fees or
otherwise to any owner or licensee of, or other claimant to, any patent,
trademark, service ▇▇▇▇, trade name, copyright, know-how, technology or other
intangible asset, with respect to the use thereof or in connection with the
conduct of its business or otherwise.
(xxiii) Except as disclosed in the Prospectus the Company owns and has
adequate right to use to the best knowledge of the Company's management all
trade secrets, know-how (including all other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), inventions,
designs, processes, works of authorship, computer programs and technical data
and information (collectively herein "intellectual property") required for or
incident to the development, manufacture, operation and sale of all products and
services sold or proposed to be sold by the Company. The Company is not aware of
any such development of similar or identical trade secrets or technical
information by others. In the event the Company has valid and binding
confidentiality agreements with all of its officers, covering its intellectual
property (subject to the equitable powers of any court), such agreements have
remaining terms of at least two years from the effective date of the
Registration Statement except where the failure to have such agreements would
not materially and adversely effect the Company's business taken as a whole. The
Company has good and marketable title to, or valid and enforceable leasehold
estates in, all items of real and personal property stated in the Prospectus, to
be owned or leased by it free and clear of all liens, charges, claims,
encumbrances, pledges, security interests, defects, or other restrictions or
equities of any kind whatsoever, other than those referred to in the Prospectus
and liens for taxes not yet due and payable.
(xxiv) Ernst & Young , LLP., whose reports are filed with the
Commission as a part of the Registration Statement, are independent certified
public accountants as required by the Act and the Rules and Regulations.
(xxv) The Company has agreed to execute and has also caused to be duly
executed agreements pursuant to which each of the Company's officers and
directors and employee shareholders and holders of 5% or more of the securities
and any person or entity deemed to be an affiliate of the Company pursuant to
the Rules and Regulations has agreed not to, directly or indirectly, sell,
assign, transfer, or otherwise dispose of any shares of Common Stock or
securities convertible into, exercisable or exchangeable for or evidencing any
right to purchase or subscribe for any shares of Common Stock (either pursuant
to Rule 144 of the Rules and Regulations or otherwise) for a period of not less
than thirteen) (13) months following such effective date; provided however, that
the foregoing shall not prevent (i) the Company from selling shares of Common
Stock in accordance with its 1992 and 1998 Stock Plans and Employee Stock
Purchase Plan, and (ii) the Restricted Shareholders from making gifts of shares
of Common Stock to persons or organizations agreeing to be bound by the
foregoing restrictions. The officers, directors and 5% holders
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also agree not to dispose of (sell or transfer) their shares until the share
price, adjusted for any splits, trades above 200% of the offering price for a
twenty (20) consecutive day period. This lock-up expires on the first day of the
fourth year after the effective date of the offering. The Company will instruct
the Transfer Agent, of the lock-up restrictions and cause it to note these
restrictions on its transfer book and to ▇▇▇▇ an appropriate legend on the face
of stock certificates representing all of such securities and to place "stop
transfer" orders on the Company's stock ledgers. The Company further agrees that
the shares and/or warrants/options will not be released by the transfer agent
unless consented to by both ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and by Westport Resources
Investment Services, Inc. together.
(xxvi) The Registered Securities have been approved for listing on
Nasdaq or an Exchange.
(xxvii) Except as set forth in the Prospectus or disclosed in writing
to the Underwriters (which writing specifically refers to this Section), no
officer or director of the Company, holder of 5% or more of securities of the
Company or any "affiliate" or "associate" (as these terms are defined in Rule
405 promulgated under the Rules and Regulations) of any of the foregoing persons
or entities has or has had, either directly or indirectly, (i) an interest in
any person or entity which (A) furnishes or sells services or products which are
furnished or sold or are proposed to be furnished or sold by the Company, or (B)
purchases from or sells or furnishes to the Company any goods or services, or
(ii) a beneficiary interest in any contract or agreement (other than a
subscription agreement ) to which the Company is a party or by which it is or
may be bound or affected. Except as set forth in the Prospectus under "Certain
Transactions" or disclosed in writing to the Underwriters (which writing
specifically refers to this Section) there are no existing agreements,
arrangements, understandings or transactions, or proposed agreements,
arrangements, understandings or transactions, between or among the Company, and
any officer, director, principal stockholder of the Company, or any partner,
affiliate or associate of any of the foregoing persons or entities.
(xxviii) Any certificate signed by any officer of the Company, and delivered
to the Underwriters or to the Underwriters' counsel (as defined herein) shall be
deemed a representation and warranty by the Company to the Underwriters as to
the matters covered thereby.
(xxix) Each of the minute books of the Company has been made available to
the Underwriters and contains a complete summary of all meetings and actions of
the directors and stockholders of the Company, since the time of its
incorporation and reflect all transactions referred to in such minutes
accurately in all respects.
(xxx) As of the Initial Closing Date, the Company will enter into the
Consulting Agreement substantially in the form filed as an Exhibit to the
Registration Statement with respect to the rendering of consulting services by
the Representative to the Company.
(xxxi) Except and only to the extent described in the Prospectus or
disclosed in writing to the Underwriters (which writing specifically refers to
this Section), no holders of any securities of the Company or of any options,
warrants or other convertible or exchangeable securities of the Company have the
right to include any securities issued by the Company in the Registration
Statement or any registration statement to be filed by the Company or to require
the Company to file a registration statement under the Act and no person or
entity holds any anti-dilution rights with respect to any securities of the
Company. Except as disclosed in the Prospectus, all rights so described or
disclosed have been waived or have not been triggered with respect to the
transactions contemplated by this Agreement, the Consulting Agreement and the
Underwriters' Warrant Agreement (including the warrants issuable thereunder).
(xxxii) The Company has not entered into any employment agreements with
its executive officers, except as disclosed in the Prospectus.
(xxxiii) No consent, approval, authorization or order of, and no filing
with, any court, regulatory body, government agency or other
body, domestic or foreign, is required for the issuance of the
Securities pursuant to the Prospectus and the Registration
Statement, the issuance of the Underwriters' Warrants, the
performance of this Agreement, the Underwriters' Warrant and
the Consulting Agreement, and the transactions contemplated
hereby and thereby, including without limitation, any waiver
of any preemptive, first refusal or other rights that any
entity or person may have for the
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issue and/or sale of any of the Securities, the Option
Securities and the Underwriter's Warrant, except such as have
been or may be obtained under the Act, otherwise or may be
required under state securities or blue sky laws in connection
with the Underwriters' purchase and distribution of the
Securities, the Option Securities, the Underwriter's
Securities and the Underwriters' Warrants to be sold by the
Company hereunder or may be required by the Rules of the
National Association of Securities Dealer, Inc. ("NASD").
(xxxiv) All executed agreements, contracts or other documents or copies of
executed agreements, contracts or other documents filed as exhibits to the
Registration Statement to which the Company is a party or by which it may be
bound or to which its assets, properties or businesses may be subject have been
duly and validly authorized, executed and delivered by the Company and
constitute the legal, valid and binding agreements of the Company, enforceable
against the Company, in accordance with their respective terms. The descriptions
in the Registration Statement of agreements, contracts and other documents are
accurate and fairly present the information required to be shown with respect
thereto by Form SB-2, and there are no contracts or other documents which are
required by the Act to be described in the Registration Statement or filed as
exhibits to the Registration Statement which are not described or filed as
required, and the exhibits which have been filed are complete and correct copies
of the documents of which they purport to be copies.
(xxxv) Within the past five (5) years, none of the Company's independent
public accountants has brought to the attention of the Company's management any
"material weakness" as defined in the Statement of Auditing Standard No. 60 in
any of the Company's internal controls.
4. Covenants of the Company. The Company covenants and agrees with you that:
(a) It will cooperate in all respects in making the Prospectus effective and
will not at any time, whether before or after the effective date, file any
amendment to or supplement to the Prospectus of which you shall not previously
have been advised and furnished with a copy or to which you or your counsel
shall have reasonably objected or which is not in material compliance with the
Act and the Rules and Regulations or applicable state law.
As soon as the Company is advised thereof, the Company will advise you, and
confirm the advice in writing, of the receipt of any comments of the Commission
or any state securities department, when the Registration Statement becomes
effective if the provisions of Rule 430A promulgated under the Act will be
relied upon, when the Prospectus has been filed in accordance with said Rule
430A, of the effectiveness of any posteffective amendment to the Registration
Statement or Prospectus, or the filing of any supplement to the Prospectus or
any amended Prospectus, of any request made by the Commission or any state
securities department for amendment of the Prospectus or for supplementing of
the Prospectus or for additional information with respect thereto, of the
issuance of any stop order suspending the effectiveness of the Prospectus or any
order preventing or suspending the use of any Prospectus or any order suspending
trading in the Common Stock of the Company, or of the suspension of the
qualification of the Securities, the Option Securities or the Underwriters'
Warrants for offering in any jurisdiction, or of the institution of any
proceedings for any such purposes, and will use its best efforts to prevent the
issuance of any such order and, if issued, to obtain as soon as possible the
lifting or dismissal thereof.
The Company has caused to be delivered to you copies of such Prospectus, and
the Company has consented and hereby consents to the use of such copies for the
purposes permitted by law. The Company authorizes you and the dealers to use the
Prospectus and such copies of the Prospectus in connection with the sale of the
Securities, the Option Securities and the Underwriters' Warrants for such period
as in the opinion of your counsel and our counsel the use thereof is required to
comply with the applicable provisions of the Act and the Rules and Regulations.
The Company will prepare and file with the states, promptly upon your request,
any such amendments or supplements to the Prospectus, and take any other action,
as, in the opinion of your counsel, may be necessary or advisable in connection
with the initial sale of the Securities, the Option Securities and the
Underwriters' Warrants and will use its best efforts to cause the same to become
effective as promptly as possible.
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The Company shall file the Prospectus (in form and substance satisfactory to
the Underwriter) or transmit the Prospectus by a means reasonably calculated to
result in filing with the Commission pursuant to rule 424(b)(1) or pursuant to
Rule 424(b)(3) not later than the Commission's close of business on the earlier
of (i) the second business day following the execution and delivery of this
Agreement, and (ii) the fifth business day after the effective date of the
Registration Statement.
In case of the happening, at any time within such period as a Prospectus is
required under the Act to be delivered in connection with the initial sale of
the Securities, the Option Securities and the Underwriters' Warrants of any
event of which the Company has knowledge and which materially affects the
Company, or the securities thereof, and which should be set forth in an
amendment of or a supplement to the Prospectus in order to make the statements
therein not then misleading, in light of the circumstances existing at the time
the Prospectus is required under the Act to be delivered, or in case it shall be
necessary to amend or supplement the Prospectus to comply with the Act, the
Rules and Regulations or any other law, the Company will forthwith prepare and
furnish to you copies of such amended Prospectus or of such supplement to be
attached to the Prospectus, in such quantities as you may reasonably request, in
order that the Prospectus, as so amended or supplemented, will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances under which they are made. The preparation and
furnishing of any such amendment or supplement to the Prospectus or supplement
to be attached to the Prospectus shall be without expense to you.
The Company will to the best of its ability comply with the Act, the
Exchange Act and applicable state securities laws so as to permit the initial
offer and sales of the Securities, the Option Securities and the Underwriters'
Warrants under the Act, the Rules and Regulations, and applicable state
securities laws.
(b) The Company will cooperate to qualify the Securities and the Option
Securities and the Underwriters' Securities for initial sale under the
securities laws of such jurisdictions as you may designate and will make such
applications and furnish such information as may be required for that purpose,
provided the Company shall not be required to qualify as a foreign corporation
or a dealer in securities. The Company will, from time to time, prepare and file
such statements and reports as are or may be required to continue such
qualification in effect for so long as the Underwriters may reasonably request.
(c) So long as any of the Securities, the Option Securities or the
Underwriter's Securities remain outstanding in the hands of the public, the
Company, at its expense, will annually furnish to its shareholders a report of
its operations to include financial statements audited by independent public
accountants, and will furnish to the Underwriter as soon as practicable after
the end of each fiscal year, a balance sheet of the Company as at the end of
such fiscal year, together with statements of operations, shareholders' equity,
and changes in cash flow of the Company for such fiscal year, all in reasonable
detail and accompanied by a copy of the certificate or report thereon of
independent public accountants.
(d) The Company will deliver to you at or before the Initial Closing Date
three signed copies of the signature pages to the Registration Statement . The
Company will deliver to you, from time to time until the effective date of the
Prospectus, as many copies of the Prospectus as you may reasonably request. The
Company will deliver to you on the effective date of the Prospectus and
thereafter for so long as a Prospectus is required to be delivered under the Act
and the Rules and Regulations as many copies of the Prospectus, in final form,
or as thereafter amended or supplemented, as you may from time to time
reasonably request.
(e) The Company will apply the net proceeds from the sale of the Securities
and the Option Securities substantially in the manner set forth under "Use of
Proceeds" in the Prospectus. No portion of the proceeds shall be used, directly
or indirectly, to acquire any securities issued by the Company, without the
prior written consent of the Underwriters.
(f) As soon as it is practicable, but in any event not later than the first
(lst) day of the fifteenth (15th) full calendar month following the effective
date of the Registration Statement, the Company will make available to its
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security holders and the Underwriter an earnings statement (which need not be
audited) covering a period of at least twelve (12) consecutive months beginning
after the effective date of the Registration Statement, which shall satisfy the
requirements of Section 11(a) of the Act and Rule 158(a) of the Rules and
Regulations.
(g) Non-Accountable Expense Allowance and other Costs and Expenses.
The Company shall pay to the Underwriters at each closing date, and to
be deducted from the purchase price for the Securities and the Option
Securities, an amount equal to three percent (3%) of the total proceeds received
by the Company from the sale of the Securities and the Option Securities at such
closing date, less in the case of the Initial Closing Date, the sum of $62,500
previously paid by the Company. If the sale of the Securities by the Underwriter
is not consummated for any reason not attributable to the Underwriter, or if (i)
the Company withdraws the Registration Statement from the Commission or does not
proceed with the public offering, or (ii) the representations in Section 3
hereof are not correct or the covenants cannot be complied with, or (iii) there
has been a materially adverse change in the condition, prospects or obligations
of the Company or a materially adverse change in stock market conditions from
current conditions, all as determined by the Underwriter, then the Company shall
reimburse the Underwriter for their out of pocket expenses including without
limitation its legal fees and disbursements all on an accountable basis but not
to exceed $50,000 and if any excess remains, such excess will be returned to the
Company.
Costs and Expenses.
Subject to the provisions above the Company will pay all
costs and expenses incident to the performance of this Agreement by the Company
including, but not limited to, the fees and expenses of counsel to the Company
and of the Company's accountants; the costs and expenses incident to the
preparation, printing, filing and distribution under the Act of the Registration
Statement and Prospectus (including the fee of the Commission, any securities
exchange and the NASD in connection with the filing required by the NASD
relating to the offering of the Securities contemplated hereby); all expenses,
including fees of counsel, which shall be due and payable on the Closing Date in
connection with the qualification of the Securities under the state securities
or blue sky laws; the cost of furnishing to you copies of the Prospectus, this
Agreement, the cost of printing the certificates representing the Securities and
of preparing and photocopying the Underwriting Agreement and related
Underwriting documents, the cost of three underwriter's bound volumes, any
advertising costs and expenses, including but not limited to the Company's
expenses on "road show" information meetings and presentations, prospectus
memorabilia, issue and transfer taxes, if any. The Company will also pay all
costs and expenses incident to the furnishing of any amended Prospectus of or
any supplement to be attached to the Prospectus.
(h) Reserved
(i) During a date five years after the date hereof, the Company will file
Form 8-K where required and, as soon as practicable deliver to the Underwriter:
(1) as soon as they are available, copies of all reports (financial or
other) mailed to shareholders;
(2) as soon as they are available, copies of all reports and financial
statements furnished to or filed with the Commission, the NASD or any securities
exchange;
(3) however, every press release and every material news item or
article of interest to the financial community in respect of the Company or its
affairs which was prepared and released by or on behalf of the Company to be
delivered only to the underwriter not the shareholder unless the Company deems
otherwise; and
(4) any additional information of a public nature concerning the
Company (and any future subsidiaries) or its businesses which the Underwriters
may reasonably request.
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During such five-year period, if the Company has active subsidiaries, the
foregoing financial statements will be on a consolidated basis to the extent
that the accounts of the Company and its subsidiaries are consolidated, and will
be accompanied by similar financial statements for any significant subsidiary
which is not so consolidated.
(j) The Company will maintain a Transfer Agent and, if necessary under the
jurisdiction of incorporation of the Company, a Registrar (which may be the same
entity as the Transfer Agent) for its Units, Common Stock, and Warrants.
(k) The Company will furnish to the Underwriters or on the Underwriters'
order, without charge, at such place as the Underwriters may designate, copies
of each Preliminary Prospectus, the Final Prospectus the Registration Statement
and any pre-effective or post-effective amendments thereto (two of which copies
will be signed and will include all financial statements and exhibits), the
Prospectus, and all amendments and supplements thereto, including any prospectus
prepared after the effective date of the Registration Statement, in each case as
soon as available and in such quantities as the Underwriters may request.
(1) Neither the Company nor any of its officers, directors, stockholders or
any of its affiliates will take, directly or indirectly, any action designed to,
or which might in the future reasonably be expected to cause or result in
stabilization or manipulation of the price of any of the Company's securities.
(m) Reserved
(n) The Company shall cause the Securities to be listed on the NASDAQ Small
Cap Market or on an exchange for a period of five (5) years from the date
hereof, and use its best efforts to maintain the listing of the Securities to
the extent they are outstanding.
(o) As soon as practicable, (i) before the effective date of the
Registration Statement, file a Form 8-A with the Commission providing for the
registration under the Exchange Act of the Securities and (ii) but in no event
more than 30 days from the effective date of the Registration Statement, take
all necessary and appropriate actions to be included in Standard and Poor's
Corporation Descriptions and/or ▇▇▇▇▇'▇ OTC Manual and to continue such
inclusion for a period of not less than five years if the securities are not
listed on an exchange. The Company also agrees to take such steps as may be
necessary to comply with the requirements of any state to be in compliance with
the provisions of Section 18 of the Securities Act of 1933, as amended by the
National Securities Markets Improvement Act of 1996.
(p) Until the completion of the distribution of the Securities, the Company
shall not without the prior written consent of the Underwriters and their
counsel which consent shall not be unreasonably withheld or delayed, issue,
directly or indirectly, any press release or other communication or hold any
press conference with respect to the Company or its activities or the offering
contemplated hereby, other than trade releases issued in the ordinary course of
the Company's business consistent with past practices with respect to the
Company's operations.
(q) Until the earlier of (i) five (5) years from the date hereof or (ii) the
sale to the public of the Warrant Shares, the Company will not take any action
or actions which may prevent or disqualify the Company's use of Form SB-2 (or
other appropriate form) for the registration under the Act of the Warrant Shares
and the Underwriters' Securities.
(r) Commencing one year from the effective date of the Registration
Statement, the Company agrees to pay the Underwriter a 5% solicitation
fee for the exercise of the publicly-held Warrants such solicitation
being subject to applicable SEC and NASD Rules.
(s) The Company agrees to retain the Underwriters for a period of 24 months
at $3000 per month, to continue the development of interest and
sponsorship in the common shares payable in advance at the closing.
(t) The Company subject to its approval, agrees for a period of two years
after the Closing, that the Representative may designate one person at
its discretion to attend board meetings as an observer which approval
shall not unreasonably be withheld. All out-of-pocket expenses incurred
by that person shall be
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reimbursed by the Company who will not receive compensation different
from the other non-officer directors.
5. Conditions of the Underwriters' Obligations. The obligation of the
Underwriters to offer and sell the Securities and the Option Securities is
subject to the accuracy in all material respects (as of the date hereof, and as
of the Closing Dates) of and compliance in all material respects with the
representations and warranties of the Company to the performance by it of its
agreement and obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective as and when
cleared by the Commission, and you shall have received notice thereof, on or
prior to any closing date no stop order suspending the effectiveness of the
Prospectus shall have been issued and no proceedings for that or similar purpose
shall have been instituted or shall be pending, or, to your knowledge or to the
knowledge of the Company, shall be contemplated by the Commission; any request
on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the Underwriters; and
qualification, under the securities laws of such states as you may designate, of
the issue and sale of the Securities upon the terms and conditions herein set
forth or contemplated and containing no provision unacceptable to you shall have
been secured, and no stop order shall be in effect denying or suspending
effectiveness of such qualification nor shall any stop order proceedings with
respect thereto be instituted or pending or threatened under such law.
(b) On any closing date and, with respect to the letter referred to in
subparagraph (iii), as of the date hereof, you shall have received:
(i) the opinion, together with such number of signed or photostatic copies
of such opinion as you may reasonably request, addressed to you by ▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇ LLP counsel for the Company, in form and substance reasonably satisfactory
to the Underwriters and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., counsel to the Underwriters,
dated each such closing date, to the effect that:
(A) The Company has been duly incorporated and is a validly existing
corporation in good standing under the laws of the jurisdiction in which it is
incorporated and has all necessary corporate power and authority to carry on its
business as described in the Prospectus.
(B) The Company is qualified to do business in each jurisdiction in which
conducting its business requires such qualification, except where the failure to
be so qualified would not have a material adverse effect on the Company's
business or assets.
(C) The Company has the full corporate power and authority to enter into
this Agreement, the Underwriters' Warrant and the Consulting Agreement and to
consummate the transactions provided for therein and each such Agreement has
been duly and validly authorized, executed and delivered by the Company. Each of
this Agreement, the Consulting Agreement and the Underwriters' Warrant assuming
due authorization, execution and delivery by each other party thereto,
constitutes a legal, valid and binding agreement of the Company and provided
that no opinion need be given as to the enforceability of any indemnification or
contribution provisions, and none of the Company's execution or delivery of this
Agreement, the Consulting Agreement or the Underwriter's Warrant, its
performance hereunder or thereunder, its consummation of the transactions
contemplated herein or therein, or the conduct of its business as described in
the Registration Statement, the Prospectus, and any amendments or supplements
thereto, conflicts with or will conflict with or results or will result in any
material breach or violation of any of the terms or provisions of, or
constitutes or will constitute a material default under, or result in the
creation or imposition of any material lien, charge, claim, encumbrance, pledge,
security interest, defect or other restriction of any kind whatsoever upon, any
property or assets (tangible or intangible) of the Company pursuant to the terms
of (A) the articles of incorporation or by-laws of the Company, (B) to the
knowledge of such counsel, any material license, contract, indenture, mortgage,
deed of trust, voting trust agreement, stockholders' agreement, note, loan or
credit agreement or any other agreement or instrument to which the Company is a
party or by which it is or may be bound, or (C) to the
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knowledge of such counsel, any statute, judgment, decree, order, rule or
regulation applicable to the Company, whether domestic or foreign.
(D) The Company had authorized and outstanding capital stock as set forth in
the Prospectus under the heading "Capitalization" as of the date set forth
therein, and all of such issued and outstanding shares of capital stock have
been duly and validly authorized and issued, and to the knowledge of such
counsel are fully paid and nonassessable, and to the knowledge of such counsel
no stockholder of the Company is entitled to any preemptive rights to subscribe
for, or purchase shares of the capital stock and to the knowledge of such
counsel none of such securities were issued in violation of the preemptive
rights of any holders of any securities of the Company.
(E) To the knowledge of such counsel, the Company is not a party to or bound
by any instrument, agreement or other arrangement providing for it to issue any
capital stock, rights, warrants, options or other securities, except for this
Agreement, the Underwriters' Warrant, and except as described in the Prospectus.
The Common Stock, the Warrants and the Underwriters' Warrants each conforms in
all material respects to the respective descriptions thereof contained in the
Prospectus. The outstanding shares of Common Stock, the Warrant and the Warrant
Stock and the Underwriters' Warrant Stock, upon issuance and delivery and
payment therefore in the manner described herein, the Warrant and the
Underwriters' Warrant, as the case may be, will be, duly authorized, validly
issued, fully paid and nonassessable. There are no preemptive or other rights to
subscribe for or to purchase, or any restriction upon the voting or transfer of,
any shares of Common Stock pursuant to the Company's articles of incorporation,
by-laws, other governing documents or any agreement or other instrument known to
such counsel to which the Company is a party or by which it is bound.
(F) The certificates representing the Securities comprising the Unit, the
Common Stock and Warrants conform with all legal requirements therefor and each
of the Warrant Stock and the Underwriters' Warrant Stock has been duly
authorized and reserved for issuance and when issued and delivered in accordance
with the respective terms of the Warrant Agreement and the Underwriter's
Warrant, respectively, will be duly and validly issued, fully paid and
nonassessable.
(G) To the knowledge of such counsel, there are no claims, suits or other
legal proceedings pending or threatened against the Company in any court or
before or by any governmental body which might materially affect the business of
the Company or the financial condition of the Company as a whole, except as set
forth in the Prospectus.
(H) Based on oral and/or written advice from the staff of the Commission,
the Registration Statement has become effective and, to the knowledge of such
counsel, no stop order suspending the effectiveness of the Prospectus is in
effect and no proceedings for that purpose are pending before, or threatened by,
federal or by a state securities administrator.
(I) To the knowledge of such counsel, there are no legal or governmental
proceedings, actions, arbitrations, investigations, inquiries or the like
pending or threatened against the Company of a character required to be
disclosed in the Prospectus which have not been so disclosed, questions the
validity of the capital stock of the Company or this Agreement or the
Underwriters' Warrant Agreement or might adversely affect the condition,
financial or otherwise, or the prospects of the Company or which could adversely
affect the Company's ability to perform any of its obligations under this
Agreement, or the Underwriter's' Warrant.
(J) To such counsel's knowledge, there are no material agreements, contracts
or other documents known to such counsel required by the Act to be described in
the Registration Statement and the Prospectus and filed as exhibits to the
Registration Statement other than those described in the Registration Statement
and the Prospectus and filed as exhibits thereto, and to such counsel's
knowledge (A) the exhibits which have been filed are correct copies of the
documents of which they purport to be copies; (B) the descriptions in the
Registration Statement and the Prospectus and any supplement or amendment
thereto of contracts and other documents to which the Company is a party or by
which it is bound, including any document to which the Company is a party or by
which it is bound incorporated by reference into the Prospectus and any
supplement or amendment thereto, are accurate in all material respects and
fairly represent the information required to be shown by Form SB-2.
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(K) No consent, approval, order or authorization from any regulatory board,
agency or instrumentality having jurisdiction over the Company, or its
properties (other than registration under the Act or qualification under state
or foreign securities law or approval by the NASD) is required for the valid
authorization, issuance, sale and delivery of the Securities, the Option
Securities or the Underwriters' Warrant.
(L) The statements in the Prospectus under "Risk Factors-Control by Existing
Stockholders," "Risk of Third-Party Claims of Infringement", "Patents and
Proprietary Technology", "Management-Limitation of Liability" "Description of
the Securities," and "Shares Eligible For Future Sale" have been reviewed by
such counsel, and insofar as they refer to statements of law, descriptions of
statutes, licenses, rules or regulations or legal conclusions, are correct in
all material respects.
In addition, such counsel shall state that such counsel has participated in
conferences with officials and other representatives of the Company,
Underwriters' Counsel and the independent certified public accountants of the
Company, at which such conferences the contents of the Registration Statement
and Prospectus and related matters were discussed, and although they have not
certified the accuracy or completeness of the statements contained in the
Registration Statement or the Prospectus, nothing has come to the attention of
such counsel which leads them to believe that, at the time the Registration
Statement became effective and at all times subsequent thereto up to and on the
Closing Date and on any later date on which Option Shares are to be purchased,
the Registration Statement and any amendment or supplement, when such documents
became effective or were filed with the Commission (other than the financial
statements including the notes thereto and supporting schedules and other
financial and statistical information derived therefrom, as to which such
counsel need express no comment) contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or at the Closing Date
or any later date on which the Option Shares are to be purchased, as the case
may be, the Prospectus and any amendment or supplement thereto (other than the
financial statements including the notes thereto and other financial and
statistical information derived therefrom, as to which such counsel need express
no comment) contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
Such opinion shall also cover such other matters incident to the
transactions contemplated hereby and the offering Prospectus as you or counsel
to the Underwriter shall reasonably request. In rendering such opinion, to the
extent deemed reasonable by them, such counsel may rely upon certificates of any
officer of the Company or public officials as to matters of fact of which the
maker of such certificate has knowledge.
(ii) a certificate, signed by the Chief Executive Officer and the Principal
Financial or Accounting Officer of the Company dated the Closing Date, to the
effect that with regard to the Company, each of the conditions set forth in
Section 5(d) have been satisfied.
(iii) a letter, addressed to the Underwriter and in form and substance
satisfactory to the Underwriter in all respects (including the nature of the
changes or decreases, if any, referred to in clause (D) below), from Ernst &
Young LLP, dated, respectively, as of the effective date of the Registration
Statement and as of the Closing Date, as the case may be:
(A) Confirming that they are independent public accountants with respect to
the Company and its consolidated subsidiaries, if any, within the meaning of the
Act and the applicable published Rules and Regulations.
(B) Stating that, in their opinion, the financial statements, related notes
and schedules of the Company and its consolidated subsidiaries, if any, included
in the Registration Statement examined by them comply as to form in all material
respects with the applicable accounting requirements of the Act and the
published Rules and Regulations thereunder.
(C) Stating that, with respect to the period from June 30, 1998 to a
specified date ("specified date") not earlier than five (5) business days prior
to the date of such letter, they have read the minutes of meetings of the
stockholders
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and board of directors (and various committees thereof) of the Company and its
consolidated subsidiaries, if any, for the period from June 30, 1998 through the
specified date, and made inquiries of officers of the Company and its
consolidated subsidiaries, if any, responsible for financial and accounting
matters and, especially as to whether there was any decrease in sales, income
before extraordinary items or net income as compared with the corresponding
period in the preceding year; or any change in the capital stock of the Company
or any change in the long term debt or any increase in the short-term bank
borrowings or any decrease in net current assets or net assets of the Company or
of any of its consolidated subsidiaries, if any, and further stating that while
such procedures and inquiries do not constitute an examination made in
accordance with generally accepted auditing standards, nothing came to their
attention which caused them to believe that during the period from June 30,
1998, through the specified date there were any decreases as compared with the
corresponding period in the preceding year in sales, income before extraordinary
items or net income; or any change in the capital stock of the Company or
consolidated subsidiary, if any, or any change in the long term debt or any
increase in the short-term bank borrowings (other than any increase in
short-term bank borrowings in the ordinary course of business) of the Company or
any consolidated subsidiary, if any, or any decrease in the net current assets
or net assets of the Company or any consolidated subsidiary, if any; and
(D) Stating that they have carried out certain specified procedures
(specifically set forth in such letter or letters) as specified by the
Underwriter (after consultations with Ernst & Young, LLP relating to such
procedures), not constituting an audit, with respect to certain tables,
statistics and other financial data in the Prospectus specified by the
Underwriter and such financial data not included in the Prospectus but from
which information in the Prospectus is derived, and which have been obtained
from the general accounting records of the Company or consolidated subsidiaries,
if any, or from such accounting records by analysis or computation, and having
compared such financial data with the accounting records of the Company or the
consolidated subsidiaries, if any, stating that they have found such financial
data to agree with the accounting records of the Company.
(c) All corporate proceedings and other legal matters relating to this
Agreement, the Prospectus and other related matters shall be satisfactory to or
approved by counsel to the Underwriters and you shall have received from ▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇, LLP a signed opinion dated as of each closing date, with respect
to the incorporation of the Company, the validity of the Securities, the form of
the Prospectus, (other than the financial statements together with related notes
and other financial and statistical data contained in the Prospectus or omitted
therefrom, as to which such counsel need express no opinion), the execution of
this Agreement and other related matters as you may reasonably require.
(d) At each closing date, (i) the representations and warranties of the
Company contained in this Agreement shall be true and correct in all material
respects with the same effect as if made on and as of such closing date; (ii)
the Prospectus and any amendments or supplements thereto shall contain all
statements which are required to be stated therein in accordance with the Act
and the Rules and Regulations and in all material respects conform to the
requirements thereof, and neither the Prospectus nor any amendment or supplement
thereto shall contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary, in light of the
circumstances under which they were made, in order to make the statements
therein not misleading; (iii) there shall have been since the respective dates
as of which information is given no material adverse change in the business,
properties or condition (financial or otherwise), results of operations, capital
stock, longterm debt or general affairs of the Company from that set forth in
the Prospectus, except changes which the Prospectus indicates might occur after
the effective date of the Prospectus, and the Company shall not have incurred
any material liabilities or material obligations, direct or contingent, or
entered into any material transaction, contract or agreement not in the ordinary
course of business other than as referred to in the Prospectus and which would
be required to be set forth in the Prospectus; and (iv) except as set forth in
the Prospectus, no action, suit or proceeding at law or in equity shall be
pending or threatened against the Company which would be required to be set
forth in the Prospectus, and no proceedings shall be pending or threatened
against the Company or any subsidiary before or by any commission, board or
administrative agency in the United States or elsewhere, wherein an unfavorable
decision, ruling or finding would materially and adversely affect the business,
property, condition (financial or otherwise), results of operations or general
affairs of the Company.
(e) On the Initial Closing Date, the Company shall have executed and
delivered to the Underwriter, (i) the Underwriters' Warrant substantially in the
form filed as an Exhibit to the Registration Statement in final form and
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substance satisfactory to the Underwriters, and (ii) the Underwriters' Warrants
in such denominations and to such designees as shall have been provided to the
Company.
(f) On or before the Initial Closing Date, the Securities shall have been duly
approved for listing on an exchange or on Nasdaq. .
(g) On or before the Initial Closing Date, there shall have been delivered
to the Underwriters all of the Lock-up Agreements required to be delivered
pursuant to Section 3(a)(xxv) in form and substance satisfactory to the
Underwriters and Underwriters' counsel.
If any condition to the Underwriters obligations hereunder to be fulfilled
prior to or at the Closing Date or the relevant Option Closing Date, as the case
may be, is not so fulfilled, the Underwriters may terminate this Agreement or,
if the Underwriters so elect, they may waive any such conditions which have not
been fulfilled or extend the time for their fulfillment.
6. Conditions of the Company's Obligations. The obligation of the Company to
sell and deliver the Securities is subject to the following:
(a) The provisions regarding the effective date, as described in Section
10.
(b) At the Initial Closing Date, no stop order suspending the
effectiveness of the Prospectus shall have been issued under the Act or any
proceedings therefor initiated or threatened by the Commission or by any state
securities department.
(c) Tender of payment by the Underwriters in accord with Section 2 hereof.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and its employees and each person, if any, who controls you within the meaning
of the Act, against any losses, claims, damages or liabilities, joint or several
(which shall, for any purposes of this Agreement, include, but not be limited
to, all costs of defense and investigation and all attorneys' fees), to which
each Underwriter or such controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission made in the Prospectus, or such amendment or supplement to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, which is in reliance upon and in conformity
with written information furnished by the Company to you specifically for use in
the preparation thereof, and provided further that the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of you with
respect to any person asserting any such loss, claim, damage or liability who
has purchased the Securities which are the subject thereof if you or any
participants failed to send or give a copy of the Prospectus to such person at
or prior to the written confirmation of the sale of such Securities to such
person and except that, with respect to any untrue statement or omission or any
alleged untrue statement or omission, made in any Pre-Effective Prospectus, the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any Underwriter (or to any person controlling any such underwriter)
from whom the person asserting any such loss, claim, damage or liability
purchased the securities concerned to the extent that such untrue statement or
omission, or alleged untrue statement or omission, has been corrected in a later
Pre-Effective Prospectus or in the Final Prospectus unless the Underwriter
circulated a later Pre-Effective Prospectus or the Final Prospectus to such
person
(b) Each Underwriter will indemnify and hold harmless the Company, each of
its directors, each of its officers, each person, if any, who controls the
Company within the meaning of the Act against any losses, claims, damages or
liabilities, joint or several (which shall, for all purposes of this Agreement,
include, but not be limited to, all costs of defense and investigation and all
attorneys' fees) to which the Company or any such director, officer or
controlling person may become subject under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or
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actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Prospectus, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission was made in the Prospectus, or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by you specifically for use in the
preparation thereof and from and against any and all losses caused by an untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus (if used within the Applicable Period and as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, if the person asserting such losses purchased Securities from such
Underwriter and a copy of the Final Prospectus ( as then amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of such Underwriter to such person, if
required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Securities to such person, and if the Prospectus
( as so amended or supplemented ) would have cured the defect giving rise to
such loss, claim, damage or liability. This indemnity will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in, and, to the extent that it may wish,
jointly with any other indemnifying party, similarly notified, to assume the
defense thereof, subject to the provisions herein stated, with counsel
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party
under this Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. The indemnified party shall have the right to employ
separate counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel shall not be at the expense of the
indemnifying party if the indemnifying party has assumed the defense of the
action with counsel reasonably satisfactory to the indemnified party; provided
that, if the indemnified party is you or a person who controls you, the fees and
expenses of such counsel shall be at the expense of the indemnifying party if
(i) the employment of such counsel has been specifically authorized in writing
by the indemnifying party or (ii) the named parties to any such action
(including any impleaded parties) include both you or such controlling person
and the indemnifying party and you or such controlling person shall have been
advised by such counsel that there is a conflict of interest which would prevent
counsel for the indemnifying party from representing the indemnifying party and
you or such controlling person (in which case the indemnifying party shall not
have the right to assume the defense of such action on behalf of you or such
controlling person, it being understood, however, that the indemnifying party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction or which are consolidated
into the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys for you and all such controlling persons, which firm
shall be designated in writing by you). No settlement of any action against an
indemnified party shall be made without the consent of the indemnified party,
which shall not be unreasonably withheld in light of all factors of importance
to such indemnified party.
8. Contribution. In order to provide for just and equitable contribution
under the Act in any case in which (i) the indemnifying party makes a claim for
indemnification pursuant to Section 7 hereof but it is judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that the express provisions of Section 7 provide for indemnification in such
case, or (ii) contribution under the Act may be required on the part of the
Underwriters, then the Company and the Underwriters in the aggregate shall
contribute to the aggregate losses, claims, damages, or liabilities to which
they may be subject (which shall, for all purposes of this Agreement, include,
but not be limited to, all costs of defense and investigation and all attorneys'
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fees) in either such case (after contribution from others) in such proportions
that the Underwriters are responsible in the aggregate for that portion of such
losses, claims, damages or liabilities determined by multiplying the total
amount of such losses, claims, damages or liabilities times the difference
between the public offering price and the commission to the Underwriter and
dividing the product thereof by the public offering price, and the Company, if
applicable, shall be responsible for that portion of such losses, claims,
damages or liabilities times the commission to the Underwriters and dividing the
product thereof by the public offering price; provided, however, that the
Underwriters shall not be required to so contribute any amount in excess of the
underwriting discount applicable to the Securities purchased by the Underwriters
hereunder if such allocation is not permitted by applicable law, then the
relative fault of the Company and the Underwriters in connection with the
statements or omissions which resulted in such damages and other relevant
equitable considerations shall also be considered. No person guilty of a
fraudulent misrepresentation (within the meaning of Section 12(2) of the Act)
shall be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation. The foregoing contribution agreement shall in no
way affect the contribution liabilities of any person having liability under
Section 12 of the Act other than the Company and the Underwriter. As used in
this paragraph, the term "Underwriters" includes any person who controls the
Underwriters within the meaning of Section 15 of the Act. If the full amount of
the contribution specified in this paragraph is not permitted by law, then any
Underwriter and each person who controls any Underwriter shall be entitled to
contribution from the Company, to the full extent permitted by law.
9. Effective Date. This Agreement shall become effective at 10:00 a.m. New
York time on the next full business day following the effective date of the
Registration Statement, or at such other time after the effective date of the
Prospectus as you in your discretion shall first commence the public offering of
any of the Securities covered thereby, provided, however, that at all times the
provisions of Sections 7, 8, 9 and 11 shall be effective.
10. Termination.
(a) This Agreement, may be terminated at any time prior to the Closing
Date by you if in your judgment it is impracticable to offer for sale
or to enforce contracts made by you for the sale of the Securities
agreed to be sold hereunder by reason of (i) the Company as a whole
having sustained a material loss, whether or not insured, by reason of
fire, earthquake, flood, accident or other calamity, or from any labor
dispute or court or government action, order or decree, (ii) trading
in securities of the Company having been suspended by a state
securities administrator or by the Commission, (iii) material
governmental restrictions having been imposed on trading in securities
generally (not in force and effect on the date hereof) or trading on
the New York Stock Exchange, American Stock Exchange, or in the
over-the-counter market shall have been suspended, (iv) a banking
moratorium having been declared by federal or New York State
authorities, (v) an outbreak or escalation of hostilities or other
national or international calamity having occurred, (vi) the passage
by the Congress of the United States or by any state legislative body,
of any act or measure, or the adoption of any orders, rules or
regulations by any governmental body or any authoritative accounting
institute or board, or any governmental executive, which is believed
likely by you to have a material impact on the business, financial
condition or financial statements of the Company; or (vii) any
material adverse change having occurred, since the respective dates as
of which information is given in the Prospectus, in the condition,
financial or otherwise, of the Company as a whole, whether or not
arising in the ordinary course of business, (viii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
ceases to be employed by the Company in his present capacity; (ix) the
Securities are not listed on any exchange or on Nasdaq Small Cap.
(b) If you elect to prevent this Agreement from becoming effective or
to terminate this Agreement as provided in this Section 10 or in Section 9, the
Company shall be promptly notified by you, by telephone or telegram, confirmed
by letter.
11. Representations, Warrants and Agreements to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company (or its officers) and the Underwriters set forth in or
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made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of the Underwriters, the Company, or
any of their officers or directors and will survive delivery of and payment for
the Securities.
12. Notices. All communications hereunder will be in writing and, except
as otherwise expressly provided herein, if sent to you, will be
mailed, delivered or telephoned and confirmed to you at Westport
Resources Investment Services Inc. ,Capital Markets Division, Attn:
▇▇▇▇ ▇▇▇▇, Vice President; and to the Company to ▇.▇. ▇▇▇▇▇▇,
President, Implant Sciences Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
#▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
13 Parties in Interest. This Agreement is made solely for the benefit of
the Underwriters, and the Company, and their respective controlling
persons, directors and officers, and their respective successors,
assigns, executors and administrators. No other person shall acquire
or have any right under or by virtue of this Agreement.
14. Headings. The Section headings in this Agreement have been inserted as
a matter of convenience of reference and are not a part of this
Agreement.
15. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut, without giving
effect to conflict of law principles.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which together shall constitute one and the same
instrument.
17. Miscellaneous. The Underwriters acknowledge and confirm to the Company
that they will hold the Units as a unit for the required minimum
30-day period from the first day of inclusion of trading, in
conformity with the Rules and Regulations of NASD Regulation, Inc.
If the foregoing correctly sets forth the understanding between the Company
and you, as Representative of the several underwriters, please so indicate in
the space provided below for such purpose, whereupon this letter and your
acceptance shall constitute a binding agreement between us.
Very truly yours,
Implant Sciences Corporation
By:
(Authorized Officer)
▇.▇. ▇▇▇▇▇▇, President
Accepted as of the date first above written:
Westport Resources Investment Services, Inc.
As Representative of the several Underwriters
By:
Vice President
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EXHIBIT A
SCHEDULE I
UNDERWRITERS
UNDERWRITER 1,000,000 Units
Each Unit Consisting of One
Share of Common Stock and
One Redeemable Warrant
Westport Resources Investment Services, Inc.
▇▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇▇▇▇▇▇▇ Securities, Inc.
TOTAL 1,000,000 Units
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