Exhibit 1.2
NATIONS EXPRESS, INC.
700,000 Units
Each Unit Consisting of
Two Shares
of Common Stock
and
One Redeemable Common Stock Purchase Warrant
UNDERWRITING AGREEMENT
----------------------
, 2001
Xxxxxxxxx Securities, Inc Somerset Financial Group, Inc.
0000 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx, 00000 Xxxxxxxx, Xxxxxxxxxxx 00000
Dear Sirs:
Nations Express, Inc., a North Carolina 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"), seven
hundred thousand (700,000) units, (the "Units") each Unit consisting of two
shares 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. Xxxxxxxxx Securities, Inc. and Somerset Financial Group, Inc. are
referred to herein as the Managing 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.333-42080) 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 , 2001 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
430 A 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 effective date of the Registration Statement is referred to
herein as a "Preliminary Prospectus."
2. Discount, Delivery, and Sale of the Securities
(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 $ 00.00 per Unit before any underwriter expense allowances, an
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aggregate of 700,000 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.
(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 Managing Underwriters 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 comprising the Units 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 or Common Stock and Warrant Certificates, as applicable,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
105,000 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 thirty (30) 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.
(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 70,000 Units. 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". The Underwriters' Warrant 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-five percent (165%) 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.
3. Representations and Warranties of the Company.
(a) The Company represents and warrants to you as follows:
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(i) The Company has prepared and filed with the Commission a registration
statement, and an amendment or amendments thereto, on Form SB-2 (No.333-42080),
including any related Preliminary Prospectus for the registration of the
Securities, the Managing 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 , 2001. 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 Preliminary or Final
Prospectus ( collectively, the "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 Managing
UnderwritersUnderwriters' Warrants and to enter into this Agreement, the
Managing UnderwritersUnderwriters' Warrant dated as of the initial closing date
to be executed and delivered by the Company to the Managing Underwriters (the
"Managing UnderwritersUnderwriters' 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 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
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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 Managing
UnderwritersUnderwriters' 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 shareholders 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 Managing
UnderwritersUnderwriters' Warrant are not and will not be subject to any
preemptive or other similar rights of any shareholder, 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 Managing UnderwritersUnderwriters' Warrant has
been duly and validly taken; and the certificates representing the Securities,
the Option Securities and the Managing Underwriters 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,
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.
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(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 Stock
Option Plans) 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.
(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
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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, shareholders 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 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,
shareholders, 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
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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 xxxx, 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) Xxxxxx Xxxxxxxx, 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 eighteen) (18) months following such effective date with a further
prohibition for the sale of shares presently held by officers and directors
totaling 1, 176,000 shares and 490,000 stock options, during the period
beginning eighteen (18) months after the effective date of the Registration
Statement and ending thirty-six (36) months after such effective date, unless
the bid price for the combined security equals or surpasses a 100% premium from
the offering price for at least twenty (20) consecutive trading days or the
Company reports on an audited basis fully diluted earnings of $0.38 per share.
Those officers and directors of the Company who are affiliated with a member of
the NASD further agree in addition to the above that in order to comply with the
provisions of NASD Rule 2710 (c )(7)(C) of the Rules of Conduct not to sell any
shares of common stock during the present offering or sell, transfer, assign or
hypothecate such securities for ninety (90) days following the effective date of
the Registration Statement.
(xxvi) The Registered Securities have been approved for listing on The
American Stock 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
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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 shareholder 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 shareholders 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 Managing Underwriters 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 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 Dealers Regulation,, Inc. ("NASDR").
(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
8
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 Registration Statement
effective and will not at any time, whether before or after the effective date,
file any amendment to or supplement to the Registration Statement 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 post-effective amendment to the Registration
Statement, 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 Registration Statement or
any order preventing or suspending the use of any Prospectus or any order
suspending trading in the Units 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.
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 Managing UnderwritersUnderwriters'
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 Registration Statement and 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
9
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 Managing UnderwritersUnderwriters' 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
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 $50,000
previously paid to the Managing Underwriters 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
10
disbursements all on an accountable basis but not to exceed $75,000 and if any
excess remains, such excess will be returned to the Company. However, in the
event any unaccounted for portion of the $50,000 advanced to the Underwriter for
non-accountable expenses remains, the underwriter will reimburse the Company for
any remaining amount.
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 Initial 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, 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) any additional information of a public nature concerning the
Company (and any future subsidiaries) or its businesses which the
Underwriters may reasonably request.
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.
(l) Neither the Company nor any of its officers, directors, shareholders 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
11
(n) The Company shall cause the Securities to be listed on the American
Stock Exchange and for a period of five (5) years from the date hereof, and to
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.
(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) Reserved.
(t) The Company agrees to retain the Managing Underwriters for a period of
36 months at $3000 per month to continue the development of interest
and sponsorship in the common shares and will pay the sum of $108,000
therefore. (t) The Company subject to its approval, agrees for a
period of two years after the Closing, that the Managing Underwriters
may designate one person at their 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 reimbursed by
the Company. Such observer shall receive compensation no 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 Xxxxx & Xxx
Xxxxx PLLC counsel for the Company, in form and substance reasonably
satisfactory to the Underwriters and Xxxxxxx X. Xxxxxx, Esq., counsel to the
Underwriters, dated each such closing date, to the effect that:
12
(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 Managing UnderwritersUnderwriters' 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, shareholders'
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
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 shareholder 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 Managing UnderwritersUnderwriters' Warrant, and except
as described in the Prospectus. The Common Stock, the Warrants and the Managing
UnderwritersUnderwriters' 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 Managing
UnderwritersUnderwriters' Warrant Stock, upon issuance and delivery and payment
therefore in the manner described herein, the Warrant and the Managing
UnderwritersUnderwriters' 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.
13
(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.
(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-Our success
depends to a large degree on the continued services of Messrs. Xxxxxx,
Xxxxxxxxxx and XxXxxxxxx," "Risk of Personal injury and accident claims
resulting from our expedited ground services could materially impact our
profitability", Risk of additional expenses or taxes if the independent
truck-owner-operators are found to be employees rather than independent
contractors, "Management-Limitation of Liability" "Description of Capital
Stock," "Shares Eligible For Future Sale" "Shareholder Protection Act" and
"Control Share Acquisition Act" 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 Managing Underwriters 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
Initial 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.
14
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 Xxxxxx
Xxxxxxxx,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, 2001 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
shareholders and board of directors (and various committees thereof) of the
Company and its consolidated subsidiaries, if any, for the period from June 30,
2001 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, 2001, 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 Xxxxxx Xxxxxxxx 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 Xxxxx &
Xxx Xxxxx, PLLC 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.
15
(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, long-term 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 Managing UnderwritersUnderwriters' Warrant
substantially in the form filed as an Exhibit to the Registration Statement in
final form and substance satisfactory to the Underwriters, and (ii) the Managing
UnderwritersUnderwriters' 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 the American Stock Exchange.
(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
16
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 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
17
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'
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
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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.
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
18
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) Xxxxx Xxxxxx ceases to be employed
by the Company in his present capacity; (ix) the Securities are not
listed on The American Stock Exchange.
(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
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 Xxxxxxxxx Securities, Inc.,1120 Xxxxxxx
Xxxxxx, Xxxxxx, XX,00000, Attn: President;to Somerset Financial Group, Inc. 00
Xxxxxx Xxxxxx, Xxxxxxxx, XX, 00000, Attn: Capital Markets Division; and to the
Company, to Xxxxx Xxxxxx, President, Nations Express, Inc. Xxxxxxxxx, XX 00000.
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 Colorado, 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. Units. The Underwriters acknowledge and agree that to comply with the
Rules of Conduct of NASD Regulation, Inc. it will continue to trade the Units as
such for not less than (30) days following the effective date of the
Registration Statement. The Company hereby acknowledges and agrees that the
Managing Underwriters shall determine, in their sole discretion, the appropriate
time after such period to cause the Units to begin trading separately as shares
of Common Stock and Warrants and that such change shall be given in writing to
the Company by the Managing Underwriters.
If the foregoing correctly sets forth the understanding between the Company
and you, as Managing Underwriters 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.
19
Very truly yours,
Nations Express, Inc.
By:
----------------------------------
(Authorized Officer)
Xxxxx Xxxxxx, President
Accepted as of the date first above written:
Xxxxxxxxx Securities, Inc. Somerset Financial Group, Inc.
As Managing Underwriters of the several Underwriters
By: By:
----------------------------- ------------------------------
EXHIBIT A
SCHEDULE I
UNDERWRITERS
Underwriter 700,000 Units
Each Unit Consisting of Two
Shares of Common Stock and
One Redeemable Warrant
Xxxxxxxxx Securities, Inc.
20
Somerset Financial Group, Inc.
TOTAL 700,000 Units
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21
