EXHIBIT 1
2,400,000 SHARES
ATC ENVIRONMENTAL INC.
COMMON STOCK
UNDERWRITING AGREEMENT
, 1995
Xxxxxx & Xxxxxxx, Inc.
Pennsylvania Merchant Group Ltd
c/o Rodman & Xxxxxxx, Inc.
Xxx Xxxxxxx Xxxxx
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
On behalf of the Several
Underwriters named in
Schedule I attached hereto.
Ladies and Gentlemen:
ATC Environmental Inc., a Delaware corporation (the "Company") and certain
Stockholders of the Company set forth on Schedule II attached hereto (the
"Selling Stockholders"), propose to sell to you and the other underwriters named
in Schedule I attached hereto (the "Underwriters"), for whom you are acting as
the Representatives, an aggregate of 2,400,000 shares (the "Firm Shares") of the
Company's Common Stock, $.01 par value per share (the "Common Stock") of which
1,700,000 shares (the "Company Shares") are to be issued and sold by the Company
and 700,000 shares (the "Selling Stockholder Shares") are to be sold by the
Selling Stockholders. The obligation of each Selling Stockholder to sell Firm
Shares shall be as set forth opposite his name on Schedule II attached hereto.
In addition, the Company proposes to grant to the Underwriters an option to
purchase up to an additional 360,000 shares (the "Option Shares"), of Common
Stock for the purpose of covering over-allotments in connection with the sale of
the Firm Shares. The Firm Shares and the Option Shares are together called the
"Shares."
1. SALE AND PURCHASE OF THE SHARES. On the basis of the representations,
warranties and agreements contained in, and subject to the terms and conditions
of, this Agreement:
(a) The Company agrees to issue and sell the Company Shares and the
Selling Stockholders, severally and not jointly, agrees to sell the Selling
Stockholder Shares to the several Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase at the purchase price per
share of Common Stock of $ (the "Initial Price"), the aggregate number
of Firm Shares set forth opposite such Underwriter's name in Schedule I
attached hereto. The Underwriters agree to offer the Firm Shares to the
public as set forth in the Prospectus.
(b) The Company grants to the several Underwriters an option to purchase
all or any part of the 360,000 Option Shares at the Initial Price. The
number of Option Shares to be purchased by each Underwriter shall be the
same percentage (adjusted by the Representative to eliminate fractions) of
the total number of Option Shares to be purchased by the Underwriters as
such Underwriter is purchasing of the Firm Shares. Such option may be
exercised only to cover over-allotments in the sales of the Firm Shares by
the Underwriters and may be exercised in whole or in part at any time on or
before 12:00 noon, New York City time, on the business day before the Firm
Shares Closing Date (as defined below), and from time to time thereafter
within 30 days after the date of this Agreement, upon written or telegraphic
notice, or verbal or telephonic notice confirmed by written or telegraphic
notice, by the Representative to the Company no later than 12:00 noon, New
York City time, on the business day before the Firm Shares Closing Date or
at least two business days before any Option Shares Closing Date (as defined
below), as the case may be, setting forth the number of Option Shares to be
purchased and the time and date (if other than the Firm Shares Closing Date)
of such purchase.
2. DELIVERY AND PAYMENT. Delivery by the Company and the Selling
Stockholders of the Firm Shares to the Representatives for the respective
accounts of the Underwriters, and payment of the purchase price by certified or
official bank check or checks payable in New York Clearing House (next day)
funds to the Company and the Selling Stockholders, shall take place at the
offices of Xxxxxx & Xxxxxxx, Inc., at Xxx Xxxxxxx Xxxxx, 000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx, 00000, at 10:00 a.m., New York City time, on the third business day
following the date on which the public offering of the Shares commences (unless
such date is postponed in accordance with the provisions of Section 10(b)), or
at such time and place on such other date, not later than 10 business days after
the date of this Agreement, as shall be agreed upon by the Company, the Selling
Stockholders and the Representatives (such time and date of delivery and payment
are called the "Firm Shares Closing Date"). The public offering of the Shares
shall be deemed to have commenced at the time, which is the earlier of (a) the
time, after the Registration Statement (as defined in Section 4 below) becomes
effective, of the release by you for publication of the first newspaper
advertisement which is subsequently published relating to the Shares or (b) the
time, after the Registration Statement becomes effective, when the Shares are
first released by you for offering by the Underwriters or dealers by letter or
telegram.
In the event the option with respect to the Option Shares is exercised,
delivery by the Company of the Option Shares to the Representatives for the
respective accounts of the Underwriters and payment of the purchase price by
certified or official bank check or checks payable in New York Clearing House
(next day) funds to the Company shall take place at the offices of Xxxxxx &
Xxxxxxx, Inc. specified above at the time and on the date (which may be the same
date as, but in no event shall be earlier than, the Firm Shares Closing Date)
specified in the notice referred to in Section 1(b) (such time and date of
delivery and payment is called the "Option Shares Closing Date"). The Firm
Shares Closing Date and the Option Shares Closing Dates are called,
individually, a "Closing Date" and, together, the "Closing Dates."
Certificates evidencing the Shares shall be registered in such names and
shall be in such denominations as the Representatives shall request at least two
full business days before the Firm Shares Closing Date or the Option Shares
Closing Date, as the case may be, and shall be made available to the
Representatives for checking and packaging, at such place as is designated by
the Representatives, on the full business day before the Firm Shares Closing
Date or the Option Shares Closing Date, as the case may be.
3. PUBLIC OFFERING. The Company and the Selling Stockholders understand
that the Underwriters propose to make a public offering of the Shares, as set
forth in and pursuant to the Prospectus (as defined in Section 4 below), as soon
after the effective date of the Registration Statement and the date of this
Agreement as the Representatives deem advisable. The Company and the Selling
Stockholders hereby confirm that the Underwriters and dealers have been
authorized to distribute or cause to be distributed each preliminary prospectus
and are authorized to distribute the Prospectus (as from time to time amended or
supplemented if the Company furnishes amendments or supplements thereto to the
Underwriters).
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDERS.
(a) The Company represents and warrants to, and agrees with, the several
Underwriters that:
(i) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, and may have filed one or
more amendments thereto, on Form S-2 (Registration No. 33-61921),
including in such registration statement and each such amendment a
related preliminary prospectus (a "Preliminary Prospectus"), for the
registration of the Shares and the Option Shares, in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"). In
addition, the Company has filed or will promptly file a further amendment
to such registration statement, in the form heretofore delivered to you.
As used in this Agreement, the term "Registration Statement" means such
registration statement, as amended, on file with the Commission at the
time such registration statement becomes effective (including the
prospectus, financial statements, exhibits, and all other documents filed
as a part thereof or incorporated by reference directly or indirectly
therein (such incorporated documents being herein collectively
"Incorporated Documents")), provided that such Registration Statement, at
the time it becomes effective, may omit such information as is permitted
to be omitted from the Registration Statement
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when it becomes effective pursuant to Rule 430A of the General Rules and
Regulations promulgated under the Act (the "Regulations"), which
information ("Rule 430 Information") shall be deemed to be included in
such Registration Statement when a final prospectus is filed with the
Commission in accordance with Rules 430A and 424(b)(1) or (4) of the
Regulations; the term "Preliminary Prospectus" means each prospectus
included in the Registration Statement, or any amendments thereto, before
it becomes effective under the Act, the form of prospectus omitting Rule
430A Information included in the Registration Statement when it becomes
effective, if applicable (the "Rule 430A Prospectus"), and any prospectus
filed by the Company with your consent pursuant to Rule 424(a) of the
Regulations; and the term "Prospectus" means the final prospectus
included as part of the Registration Statement, except that if the
prospectus relating to the securities covered by the Registration
Statement in the form first filed on behalf of the Company with the
Commission pursuant to Rule 424(b) of the Regulations shall differ from
such final prospectus, the term "Prospectus" shall mean the prospectus as
filed pursuant to Rule 424(b) from and after the date on which it shall
have first been used.
(ii) When the Registration Statement becomes effective, and at all
times subsequent thereto to and including the Closing Dates, and during
such longer period as the Prospectus may be required to be delivered in
connection with sales by the Underwriters or a dealer, the Registration
Statement (and any post-effective amendment thereto) and the Prospectus
(as amended or as supplemented if the Company shall have filed with the
Commission any amendment or supplement to the Registration Statement or
the Prospectus) will contain all statements which are required to be
stated therein in accordance with the Act and the Regulations, will
comply with the Act and the Regulations, and 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, and no event will have occurred which should have been set
forth in an amendment or supplement to the Registration Statement or the
Prospectus which has not then been set forth in such an amendment or
supplement; if a Rule 430A Prospectus is included in the Registration
Statement at the time it becomes effective, the Prospectus filed pursuant
to Rules 430A and 424(b)(1) or (4) will contain all Rule 430A
Information; and each Preliminary Prospectus, as of the date filed with
the Commission, did 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; except that no
representation or warranty is made in this Section 4(a)(ii) with respect
to statements or omissions made in reliance upon and in conformity with
written information furnished to the Company as stated in Section 7(b)
with respect to any Underwriter by or on behalf of such Underwriter
through the Representatives expressly for inclusion in any Preliminary
Prospectus, the Registration Statement, or the Prospectus, or any
amendment or supplement thereto. Each of the Incorporated Documents
complies in all material respects with the requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations thereunder.
(iii) Neither the Commission nor the "blue sky" or securities
authority of any jurisdiction has issued an order (a "Stop Order")
suspending the effectiveness of the Registration Statement, preventing or
suspending the use of any Preliminary Prospectus, the Prospectus, the
Registration Statement, or any amendment or supplement thereto, refusing
to permit the effectiveness of the Registration Statement, or suspending
the registration or qualification of the Firm Shares or the Option Shares
nor has any of such authorities instituted or threatened to institute any
proceedings with respect to a Stop Order.
(iv) Any contract, agreement, instrument, lease, or license required
to be described in the Registration Statement or the Prospectus has been
properly described therein. Any contract agreement, instrument, lease, or
license required to be filed as an exhibit to the Registration Statement
has been filed with the Commission as an exhibit to or has been
incorporated as an exhibit by reference into the Registration Statement.
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(v) The Company has no subsidiary or subsidiaries and does not
control, directly or indirectly, any corporation, partnership, joint
venture, association or other business organization, except for those
permitted to be excluded pursuant to Item 601, Exhibit 21 of Regulation
S-K or those disclosed under Exhibit 21 to the Company's Form 10-K for
the fiscal year ended February 28, 1995 on page 56 thereof (each such
corporation singly a "Subsidiary" and collectively the "Subsidiaries").
Each of the Company and each Subsidiary is a corporation duly organized,
validly existing, and in good standing under the laws of the state of its
incorporation, with full corporate power and authority, and all necessary
consents, authorizations, approvals, orders, licenses, certificates, and
permits of and from, and declarations and filings with, all federal,
state, local, and other governmental authorities and all courts and other
tribunals, to own, lease, license, and use its properties and assets and
to carry on its business as now being conducted and in the manner
described in the Prospectus. Each of the Company and each Subsidiary has
been duly qualified to do business and is in good standing in each
jurisdiction in which its respective ownership, leasing, licensing, or
character, location or use of property and assets or the conduct of its
respective business makes such qualification necessary. Neither the
Company nor any Subsidiary owns, leases or licenses any property or
conducts any business outside the United States of America.
(vi) The authorized capital stock of the Company consists of
20,000,000 shares of Common Stock, of which [5,857,390] shares are
outstanding. Each outstanding share of Common Stock has been duly and
validly authorized and issued, fully paid, and non-assessable, without
any personal liability attaching to the ownership thereof and has not
been issued and is not owned or held in violation of any preemptive
rights of stockholders. The Company owns all of the shares of capital
stock of the Subsidiaries, free and clear of all liens, claims, security
interests, restrictions, stockholders' agreements, voting trusts and any
other encumbrances whatsoever. There is no commitment, plan, preemptive
right or arrangement to issue, and no outstanding option, warrant, or
other right calling for the issuance of, shares of capital stock of the
Company or any of the Subsidiaries or any security or other instrument
which by its terms is convertible into, exercisable for, or exchangeable
for capital stock of the Company or any of the Subsidiaries, except as
may be properly described in the Prospectus. There is outstanding no
security or other instrument which by its terms is convertible into or
exchangeable for capital stock of the Company or any of the Subsidiaries,
except as may be properly described in the Prospectus.
(vii) The consolidated financial statements of the Company included in
the Registration Statement and the Prospectus fairly present with respect
to the Company the financial position, the results of operations, and the
other information purported to be shown therein at the respective dates
and for the respective periods to which they apply. Such financial
statements have been prepared in accordance with generally accepted
accounting principles (except to the extent that certain footnote
disclosures regarding any stub period may have been omitted in accordance
with the applicable rules of the Commission under the Exchange Act)
consistently applied throughout the periods involved, are correct and
complete, and are in accordance with the books and records of the
Company. The accountants whose report on the audited financial statements
is filed with the Commission as a part of the Registration Statement are,
and during the periods covered by their report(s) included in the
Registration Statement and the Prospectus were, independent certified
public accountants with respect to the Company within the meaning of the
Act and the Regulations. No other financial statements are required by
Form S-2 or otherwise to be included in the Registration Statement or the
Prospectus. There has at no time been a material adverse change in the
financial condition, results of operations, business, properties, assets,
liabilities, or future prospects of the Company or any of the
Subsidiaries from the latest information set forth in the Registration
Statement or the Prospectus, except as may be properly described in the
Prospectus.
(viii) There is no litigation, arbitration, claim, governmental or
other proceeding (formal or informal), or investigation before any court
or before any public body or board pending, threatened, or in prospect
(or any basis therefor) with respect to the Company or any of the
Subsidiaries, or any of their respective operations, business, properties
or assets, except as may be
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properly described in the Prospectus or such as individually or in the
aggregate do not now have and will not in the future have a material
adverse effect upon the operations, business, properties, assets or
financial condition of the Company and the Subsidiaries. Neither the
Company nor any of the Subsidiaries is involved in any labor dispute, nor
is such dispute threatened, which dispute would have a material adverse
effect upon the operations, business, properties, assets or financial
condition of the Company. Neither the Company nor any of the Subsidiaries
is in violation of, or in default with respect to, any law, rule,
regulation, order, judgment, or decree; nor is the Company or any of the
Subsidiaries required to take any action in order to avoid any such
violation or default.
(ix) The Company and each of the Subsidiaries has good and marketable
title in fee simple absolute to all real properties and good title to all
other properties and assets which the Prospectus indicates are owned by
it, and has valid and enforceable leasehold interests in each of such
items, free and clear of all liens, security interests, pledges, charges,
encumbrances, and mortgages (except as may be properly described in the
Prospectus). No real property owned, leased, licensed or used by the
Company or any of the Subsidiaries lies in an area which is, or to the
knowledge of the Company will be, subject to zoning, use or building code
restrictions which would prohibit, and no state of facts relating to the
actions or inaction of another person or entity or his or its ownership,
leasing, licensing or use of any real or personal property exists or will
exist which would prevent, the continued effective ownership, leasing,
licensing or use of such real property in the business of the Company or
any of the Subsidiaries as presently conducted or as the Prospectus
indicates it contemplates conducting (except as may be properly described
in the Prospectus).
(x) The Company and each of the Subsidiaries, and to the knowledge of
the Company, any other party, is not now or is not expected by the
Company to be in violation or breach of, or in default with respect to,
complying with any term, obligation or provision of any contract,
agreement, instrument, lease, license, indenture, mortgage, deed of
trust, note, arrangement or understanding which is material to the
Company or any of the Subsidiaries or by which any of its properties or
business may be bound or affected, and no event has occurred which with
notice or lapse of time or both would constitute such a default, and each
such contract, agreement, instrument, lease, license, indenture,
mortgage, deed of trust, note, arrangement or understanding is in full
force and is the legal, valid and binding obligation of the parties
thereto and is enforceable as to them in accordance with its terms. The
Company and each of the Subsidiaries enjoy peaceful and undisturbed
possession under all leases and licenses under which it is operating.
Neither the Company nor any of the Subsidiaries is a party to or bound by
any contract, agreement, instrument, lease, license, indenture, mortgage,
deed of trust, note, arrangement or understanding, or subject to any
charter or other restriction, which has had or may in the future have a
material adverse effect on the financial condition, results of
operations, business, properties, assets, liabilities or future prospects
of the Company and the Subsidiaries. Neither the Company nor any of the
Subsidiaries is in violation or breach of, or in default with respect to,
any term of its certificate of incorporation (or other charter document)
or by-laws or of any franchise, license, permit, judgment, decree, order,
statute, rule or regulation.
(xi) The Company and the Subsidiaries have filed all federal, state,
local and foreign tax returns which are required to be filed through the
date hereof, or have received extensions thereof, and have paid all taxes
shown on such returns and all assessments received by it to the extent
that the same are material and have become due.
(xii) Any patents, patent applications, trademarks, trademark
applications, trade names, service marks, copyrights, copyright
applications, franchises, and other intangible properties and assets
listed in the Registration Statement (all of the foregoing being
collectively herein called "Intangibles") that the Company and the
Subsidiaries own, possess or have pending, or under which they are
licensed, are in good standing and uncontested. There is no right under
any Intangible necessary to the business of the Company and the
Subsidiaries as presently conducted or as the Prospectus indicates the
Company contemplates conducting (except as may be so described in the
Prospectus). Neither the Company nor any of the Subsidiaries has
infringed, is infringing, or
5
has received any notice of infringement with respect to asserted
Intangibles of others. To the knowledge of the Company, there is no
infringement by others of Intangibles of the Company. To the knowledge of
the Company, there is no Intangible of others which has had or may in the
future have a materially adverse effect on the financial condition,
results of operations, business, properties, assets, liabilities or
future prospects of the Company and the Subsidiaries.
(xiii) Neither the Company nor any Subsidiary, any director, officer,
agent, employee or other person associated with or acting on behalf of
the Company and the Subsidiaries has, directly or indirectly: used any
corporate funds for unlawful contributions, gifts, entertainment, or
other unlawful expenses relating to political activity; made any unlawful
payment to foreign or domestic government officials or employees or to
foreign or domestic political parties or campaigns from corporate funds;
violated any provision of the Foreign Corrupt Practices Act of 1977, as
amended; or made any bribe, rebate, payoff, influence payment, kickback,
or other unlawful payment. No transaction has occurred between or among
the Company, the Subsidiaries, or the Selling Stockholders and any of its
or their officers or directors or any affiliates or affiliates of any
such officer or director, except as described in the Prospectus.
(xiv) The Company has all requisite power and authority to execute,
deliver and perform this Agreement. All necessary corporate proceedings
of the Company have been duly taken to authorize the execution, delivery
and performance of this Agreement. This Agreement has been duly
authorized, executed, and delivered by the Company, is the legal, valid
and binding obligation of the Company, and is enforceable as to the
Company in accordance with its terms. No consent, authorization,
approval, order, license, certificate or permit of or from, or
declaration or filing with, any federal, state, local or other
governmental authority or any court or other tribunal is required by the
Company or the Subsidiaries for the execution, delivery or performance by
the Company of this Agreement (except filings under the Act which have
been or will be made before the applicable Closing Date and such consents
consisting only of consents under "blue sky" or securities laws which
have been obtained at or prior to the date of this Agreement). No consent
of any party to any contract, agreement, instrument, lease, license,
indenture, mortgage, deed of trust, note, arrangement or understanding to
which the Company or the Subsidiaries are a party, or to which any of its
respective properties or assets are subject, is required for the
execution, delivery or performance of this Agreement, and the execution,
delivery and performance of this Agreement, will not violate, result in a
breach of, conflict with, accelerate the due date of any payments under,
or (with or without the giving of notice or the passage of time or both)
entitle any party to terminate or call a default under any such contract,
agreement, instrument, lease, license, indenture, mortgage, deed of
trust, note, arrangement or understanding, or violate or result in a
breach of any term of the certificate of incorporation (or other charter
document) or by-laws of the Company, or violate, result in a breach of,
or conflict with any law, rule, regulation, order, judgment or decree
binding on the Company or any of the Subsidiaries or to which any of
their operations, business, properties or assets are subject.
(xv) The Company Shares and the Option Shares are validly authorized.
The Firm Shares, when issued and delivered in accordance with this
Agreement, and the Option Shares, when delivered in accordance with this
Agreement, will be duly and validly issued, fully paid, and non-
assessable, without any personal liability attaching to the ownership
thereof, and will not be issued in violation of any preemptive rights of
stockholders, optionholders, warrantholders and any other persons and the
Underwriters will receive good title to the Company Shares and Option
Shares purchased by them, respectively, free and clear of all liens,
security interests, pledges, charges, encumbrances, stockholders'
agreements and voting trusts.
(xvi) The Common Stock, the Firm Shares and the Option Shares conform
to all statements relating thereto contained in the Registration
Statement or the Prospectus.
(xvii) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as may
otherwise be properly described therein, there has not been any material
adverse change in the assets or properties, business or results of
6
operations or financial condition of the Company or the Subsidiaries,
whether or not arising from transactions in the ordinary course of
business; neither the Company nor the Subsidiaries has sustained any
material loss or interference with its business or properties from fire,
explosion, earthquake, flood or other calamity, whether or not covered by
insurance; since the date of the latest balance sheet included in the
Registration Statement and the Prospectus, except as reflected therein,
neither the Company nor the Subsidiaries has undertaken any liability or
obligation, direct or contingent, except for liabilities or obligations
undertaken in the ordinary course of business; and neither the Company
nor the Subsidiaries has (A) issued any securities or incurred any
liability or obligation, primary or contingent, for borrowed money, (B)
entered into any transaction not in the ordinary course of business, or
(C) declared or paid any dividend or made any distribution on any of its
capital stock or redeemed, purchased or otherwise acquired or agreed to
redeem, purchase or otherwise acquire any shares of its capital stock.
(xviii) Neither the Company nor any of its officers, directors or
affiliates (as defined in the Regulations), has taken or will take,
directly or indirectly, prior to the termination of the underwriting
syndicate contemplated by this Agreement, any action designed to
stabilize or manipulate the price of any security of the Company, or
which has caused or resulted in, or which might in the future reasonably
be expected to cause or result in, stabilization or manipulation of the
price of any security of the Company, to facilitate the sale or resale of
any of the Firm Shares or the Option Shares.
(xix) The Company has obtained from each of its executive officers and
directors and the Selling Stockholders, his enforceable written
agreement, in form and substance satisfactory to counsel for the
Underwriters, that for a period of 180 days from the date on which the
public offering of the Shares commences they will not, without your prior
written consent, offer, pledge, sell, contract to sell, grant any option
for the sale of, or otherwise dispose of, directly or indirectly, any
shares of Common Stock or other securities of the Company (or any
security or other instrument which by its terms is convertible into,
exercisable for, or exchangeable for shares of Common Stock or other
securities of the Company, including, without limitation, any shares of
Common Stock issuable under any employee stock options), beneficially
owned by them, except with respect to Shares being sold in connection
herewith or their being a beneficial owner of any such Shares.
(xx) The Company is not, and does not intend to conduct its business
in a manner in which it would be, an "investment company" as defined in
Section 3(a) of the Investment Company Act of 1940 (the "Investment
Company Act").
(xxi) No person or entity has the right to require registration of
shares of Common Stock or other securities of the Company because of the
filing or effectiveness of the Registration Statement, except such person
or entities from whom written waivers of such rights have been received
prior to the date hereof.
(xxii) Except as may be set forth in the Prospectus, the Company has
not incurred any liability for a fee, commission or other compensation on
account of the employment of a broker or finder in connection with the
transactions contemplated by this Agreement.
(xxiii) No transaction has occurred between or among the Company, the
Subsidiaries, and any of their officers or directors or any affiliates of
any such officer or director, that is required to be described in and is
not described in the Registration Statement and the Prospectus.
(xxiv) The Common Stock, including the Shares, are authorized for
quotation on the NASDAQ National Market.
(xxv) Neither the Company, the Subsidiaries, nor any of their
affiliates is presently doing business with the government of Cuba or
with any person or affiliate located in Cuba. If, at any time after the
date that the Registration Statement is declared effective with the
Commission or with the Florida Department of Banking and Finance (the
"Florida Department"), whichever date is later, and prior to the end of
the period referred to in the first clause of Section 4(a)(ii) hereof,
the
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Company commences engaging in business with the government of Cuba or
with any person or affiliate located in Cuba, the Company will so inform
the Florida Department within ninety days after such commencement of
business in Cuba, and during the period referred to in Section 4(a)(ii)
hereof will inform the Florida Department within ninety days after any
change occurs with respect to previously reported information.
(b) The Selling Stockholders, severally and not jointly, represent and
warrant to, and agree with, the several Underwriters that:
(i) There is no litigation, arbitration, claim, governmental or other
proceeding (formal or informal), or investigation before any court or
beneficiary, public body or board pending, threatened, or in prospect (or
any basis therefor known to such Selling Stockholder) with respect to
such Selling Stockholder. Such Selling Stockholder is not in violation
of, or in default with respect to, any law, rule, regulation, order,
judgment, or decree; nor is such Selling Stockholder required to take any
action in order to avoid such violation or default.
(ii) Such Selling Stockholder has all requisite power and authority
to execute, deliver, and perform this Agreement. This Agreement has been
duly executed and delivered by or on behalf of such Selling Stockholder,
is the legal, valid and binding obligation of such Selling Stockholder,
and is enforceable as to such Selling Stockholder in accordance with its
terms. No consent, authorization, approval, order, license, certificate,
or permit of or from, or declaration or filing with, any federal, state,
local or other governmental authority or any court or other tribunal is
required by such Selling Stockholder for the execution, delivery or
performance of this Agreement (except filings under the Act which have
been made before the applicable Closing Date and such consents consisting
only of consents under "blue sky" or securities laws which have been
obtained at or prior to the date of this Agreement) by such Selling
Stockholder. No consent of any party to any contract, agreement,
instrument, lease, license, indenture, mortgage, deed of trust, note,
arrangement or understanding to which such Selling Stockholder is a
party, or to which any of such Selling Stockholder's properties or assets
are subject, is required for the execution, delivery or performance of
this Agreement; and the execution, delivery and performance of this
Agreement will not violate, result in a breach of, conflict with, or
(with or without the giving of notice of the passage of time or both)
entitle any party to terminate or call a default under any such contract,
agreement, instrument, lease, license, indenture, mortgage, deed of
trust, note, arrangement or understanding, or violate, result in a breach
of, or conflict with, any law, rule, regulation, order, judgment or
decree binding on such Selling Stockholder.
(iii) Such Selling Stockholder has good title to such Selling
Stockholder Shares to be sold by such Selling Stockholder pursuant to
this Agreement, free and clear of all liens, security interests, pledges,
charges, encumbrances, stockholders' agreements and voting trusts and
when delivered in accordance with this Agreement, the Underwriters will
receive good title to such Selling Stockholder Shares purchased by them,
respectively, from such Selling Stockholder, free and clear of all liens,
security interests, pledges, charges, encumbrances, stockholders'
agreements and voting trusts.
(iv) Neither such Selling Stockholder nor any of such Selling
Stockholder's affiliates (as defined in the Regulations) has taken or
will take, directly or indirectly, prior to the termination of the
underwriting syndicate contemplated by this Agreement, any action
designed to stabilize or manipulate the price of any security of the
Company, or which has caused or resulted in, or which might in the future
reasonably be expected to cause or result in, stabilization or
manipulation of the price of any security of the Company, to facilitate
the sale or resale of any of such Selling Stockholder Shares.
(v) All information furnished or to be furnished to the Company by or
on behalf of such Selling Stockholder for use in connection with the
preparation of the Registration Statement and the Prospectus is true in
all respects and does not and 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.
8
(vi) Except as may be set forth in the Prospectus, such Selling
Stockholder has not incurred any liability for a fee, commission or other
compensation on account of the employment of a broker or finder in
connection with the transactions contemplated by this Agreement.
(vii) Such Selling Stockholder has no knowledge that, and does not
believe that, any representation or warranty of the Company in Section
4(a) is incorrect.
(viii) Such Selling Stockholder has not, directly or indirectly: used
any corporate funds for unlawful contributions, gifts, entertainment, or
other unlawful expenses relating to political activity; made any unlawful
payment to foreign or domestic government officials or employees or to
foreign or domestic political parties or campaigns from corporate funds;
violated any provision of the Foreign Corrupt Practices Act of 1977, as
amended; or made any bribe, rebate, payoff, influence payment, kickback,
or other unlawful payment.
(ix) The Selling Stockholder Shares to be sold by such Selling
Stockholder pursuant to this Agreement are duly and validly authorized
and issued, fully paid and non-assessable, and have not been issued and
are not owned or held in violation of any preemptive right of
stockholders, optionholders, warrantholders or other persons.
(x) No transaction has occurred between such person and the Company
that is required to be described in the Registration Statement or the
Prospectus.
5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters under this Agreement are several and not joint. The respective
obligations of the Underwriters to purchase the Shares are subject to each of
the following terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 6(a)(i) of this Agreement.
(b) No order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus shall have been or shall be in effect and no
order suspending the effectiveness of the Registration Statement shall be in
effect and no proceedings for such purpose shall be pending before or
threatened by the Commission, and any requests for additional information on
the part of the Commission (to be included in the Registration Statement or
the Prospectus or otherwise) shall have been complied with to the
satisfaction of the Representatives.
(c) The representations and warranties of the Company and the Selling
Stockholders contained in this Agreement and in the certificates delivered
pursuant to Section 5(d) shall be true and correct when made and on and as
of each Closing Date as if made on such date and the Company and each of the
Selling Stockholders shall have performed all covenants and agreements and
satisfied all the conditions contained in this Agreement required to be
performed or satisfied by it or him at or before such Closing Date.
(d) The Representatives shall have received on each Closing Date (i) a
certificate, addressed to the Representatives and dated such Closing Date,
of the chief executive or chief operating officer and the chief financial
officer of the Company to the effect that the persons executing such
certificate have carefully examined the Registration Statement, the
Prospectus and this Agreement and that the representations and warranties of
the Company in this Agreement are true and correct on and as of such Closing
Date with the same effect as if made on such Closing Date and the Company
has performed all covenants and agreements and satisfied all conditions
contained in this Agreement required to be performed or satisfied by it at
or prior to such Closing Date and (ii) certificates, addressed to the
Representatives and dated such Closing Date, of each of the Selling
Stockholders to the effect that the representations and warranties of such
Selling Stockholder are true and correct on and as of such Closing Date and
such Selling Stockholder has performed all covenants and agreements and
satisfied all conditions contained in this Agreement required to be
performed or satisfied by such Selling Stockholder at or prior to such
Closing Date.
(e) The Representatives shall have received at the time this Agreement
is executed and on each Closing Date a signed letter from Deloitte & Touche
LLP, addressed to the Representatives and dated,
9
respectively, the date of this Agreement and each such Closing Date, in form
and scope reasonably satisfactory to the Representatives, with reproduced
copies or signed counterparts thereof for each of the Underwriters
confirming that they are independent accountants within the meaning of the
Act and the Regulations, that the response to Item 10 of the Registration
Statement is correct in so far as it relates to them and stating in effect
that:
(i) in their opinion the audited financial statements and financial
statement schedules included or incorporated by reference in the
Registration Statement and the Prospectus and reported on by them comply
as to form in all material respects with the applicable accounting
requirements of the Act, the Exchange Act and the related published rules
and regulations thereunder;
(ii) on the basis of a reading of the amounts included in the
Registration Statement and the Prospectus under the headings "Summary
Financial Data" and "Selected Financial Data," which would not
necessarily reveal matters of significance with respect to the comments
set forth in such letter, a reading of the minutes of the meetings of the
stockholders and directors of the Company, and inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters of the Company as to transactions and events
subsequent to the date of the latest audited financial statements, except
as disclosed in the Registration Statement and the Prospectus, nothing
came to their attention which caused them to believe that:
(A) the amounts in "Summary Financial Data," and "Selected
Financial Data" included or incorporated by reference in the
Registration Statement and the Prospectus do not agree with the
corresponding amounts in the audited financial statements from which
such amounts were derived; or
(B) with respect to the Company, there were, at a specified date
not more than five business days prior to the date of the letter, any
decreases in net sales, income before income taxes and net income or
any increases in long-term debt of the Company or any decreases in
the capital stock, working capital or the stockholders' equity in the
Company, as compared with the amounts shown on the Company's audited
Balance Sheet for the fiscal year ended February 28, 1995 included in
the Registration Statement or the audited Statement of Operations,
for such year; and
(iii) they have performed certain other procedures as a result of
which they determined that information of an accounting, financial or
statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of
the Company) set forth in the Registration Statement and the Prospectus
and reasonably specified by the Representative agrees with the accounting
records of the Company.
References to the Registration Statement and the Prospectus in this
paragraph (e) are to such documents as amended and supplemented at the date of
such letter.
(f) The Representatives shall have received on each Closing Date from
Xxxxxx Xxxxx P.C., counsel for the Company, an opinion, addressed to the
Representatives and dated such Closing Date, and in form and scope
satisfactory to counsel for the Underwriters, with reproduced copies or
signed counterparts thereof for each of the Underwriters, to the effect
that:
(i) The Company has no subsidiary or subsidiaries and does not
control, directly or indirectly, any corporation, partnership, joint
venture, association or other business organization, except for those
permitted to be excluded pursuant to Item 601, Exhibit 21 or Regulation
S-K. Each of the Company and each Subsidiary is a corporation duly
organized, validly existing, and in good standing under the laws of the
State of Delaware, with full corporate power and authority to own, lease,
license and use its properties and assets and to conduct its business in
the manner described in the Prospectus. To the knowledge of such counsel,
the Company has all necessary consents, authorizations, approvals,
orders, certificates and permits of and from, and declarations and
filings with, all federal, state, local and other governmental
authorities and all courts and other tribunals, to own, lease, license
and use its properties and assets and to conduct its business in the
manner
10
described in the Prospectus. Each of the Company and each Subsidiary is
duly qualified to do business and is in good standing, in each state
where the failure to be so qualified could have a material adverse effect
on the operating condition (financial and otherwise) or business of the
Company. Neither the Company nor any Subsidiary owns, leases or licenses
any property or conducts any business outside the United States of
America. Except as set forth in or incorporated by reference into the
Registration Statement, the Company has no subsidiary or subsidiaries and
does not control, directly or indirectly, any corporation, partnership,
joint venture, association or other business organization, other than
those permitted to be excluded pursuant to Item 601, Exhibit 21 or
Regulation S-K.
(ii) The Company has authorized, issued and outstanding capital stock
as set forth under the caption "Capitalization" in the Prospectus. The
certificates evidencing the shares are in due and proper legal form. Each
outstanding share of Common Stock has been duly and validly authorized
and issued, fully paid, and non-assessable, without any personal
liability attaching to the ownership thereof, and has not been issued and
is not owned or held in violation of any preemptive right of
stockholders. The Company owns all of the shares of capital stock of the
Subsidiaries, free and clear of all lines, claims, security interests,
restrictions, stockholders' agreements, voting trusts and any other
encumbrances whatsoever. To the knowledge of such counsel, there is no
commitment, plan, or arrangement to issue, and no outstanding option,
warrant, or other right calling for the issuance of, any share of capital
stock of the Company or any of the Subsidiaries or any security or other
instrument which by its terms is convertible into, exercisable for, or
exchangeable for capital stock of the Company or any of the Subsidiaries,
except as may be properly described in the Prospectus. To the knowledge
of such counsel, there is outstanding no security or other instrument
which by its terms is convertible into, exercisable for or exchangeable
for capital stock of the Company or any of the Subsidiaries, except as
may be properly described in the Prospectus.
(iii) To the knowledge of such counsel, there is no litigation,
arbitration, claim, governmental or other proceeding (formal or
informal), or investigation before any court or before any public body or
board pending, threatened, or in prospect (or any basis therefor) with
respect to the Company or any of the Subsidiaries, any of the Selling
Stockholders or any of their respective operations, businesses,
properties, assets, or financial condition except as may be properly
described in the Prospectus or such as individually or in the aggregate
do not now have and are not in the future reasonably forseeable to have a
material adverse effect upon the operations, business, properties,
assets, or financial condition of the Company and the Subsidiaries. To
the knowledge of such counsel, neither the Company nor any of the Selling
Stockholders is involved in any labor dispute, nor is such dispute
threatened, which dispute would have a material adverse effect upon the
operations, business, properties, assets or financial condition of the
Company and the Subsidiaries. Neither the Company, any of the
Subsidiaries nor any of the Selling Stockholders is in violation of, or
in default with respect to, any law, rule, regulation, order, judgment,
or decree, except as may be properly described in the Prospectus or such
as in the aggregate do not now have and will not in the future have a
material adverse effect upon the operations, business, properties,
assets, or financial condition of the Company and of the Subsidiaries;
nor is the Company, any of the Subsidiaries nor any of the Selling
Stockholders required to take any action in order to avoid any such
violation or default.
(iv) To the knowledge of such counsel, neither the Company, any of
the Subsidiaries nor any other party is now or is expected by the Company
or any of the Selling Stockholders to be in violation or breach of, or in
default with respect to, complying with any term, obligation or provision
of any contract, agreement, instrument, lease, license, indenture,
mortgage, deed of trust, note, arrangement or understanding which is
material to the Company or any of the Subsidiaries or by which any of
their respective properties or businesses may be bound or affected and no
event has occurred which with notice or lapse of time or both would
constitute such a default.
11
(v) Neither the Company nor any of the Subsidiaries is in violation
or breach of, or in default with respect to, any term of its certificate
of incorporation (or other charter document) or by-laws.
(vi) Each of the Company, the Subsidiaries and the Selling
Stockholders has all requisite power and authority to execute, deliver
and perform this Agreement and to issue and sell the Shares. All
necessary corporate proceedings of the Company and the Subsidiaries have
been taken to authorize the execution, delivery and performance by the
Company of this Agreement. This Agreement has been duly authorized,
executed and delivered by each of the Company and the Selling
Stockholders, is the legal, valid and binding obligation of each of the
Company and each of the Selling Stockholders and (subject to applicable
bankruptcy, insolvency, and other laws affecting the enforceability of
creditors' rights generally) is enforceable as to the Company in
accordance with its terms. No consent, authorization, approval, order,
license, certificate or permit of or from, or declaration or filing with,
any federal state, local or other governmental authority or any court or
other tribunal is required by the Company, the Subsidiaries or any of the
Selling Stockholders, for the execution, delivery or performance by the
Company or any of the Selling Stockholders of this Agreement (except
filings under the Act which have been made prior to the Closing Date and
consents consisting only of consents under "blue sky" or securities
laws). To the knowledge of such counsel, no consent of any party to any
contract, agreement, instrument, lease, license, indenture, mortgage,
deed of trust, note, arrangement or understanding to which the Company,
the Subsidiaries or any of the Selling Stockholders are a party, or to
which any of their respective properties or assets are subject, is
required for the execution, delivery or performance of this Agreement;
and the execution, delivery and performance of this Agreement will not
violate, result in a breach of, conflict with, or (with or without the
giving of notice or the passage of time or both) entitle any party to
terminate or call a default under any such contract, agreement,
instrument, lease, license, indenture, mortgage, deed of trust, note,
arrangement or understanding, in each case known to such counsel, or
violate or result in a breach of any term of the certificate of
incorporation (or other charter document) or by-laws of the Company, or
violate, result in a breach of, or conflict with any law, rule,
regulation, order, judgment, or decree binding on the Company, any of the
Subsidiaries or any of the Selling Stockholders or to which any of their
respective operations, businesses, properties or assets are subject.
(vii) The Firm Shares and the Option Shares are duly and validly
authorized. Such opinion delivered at each of the Closing Dates shall
state that each Share, as the case may be, to be delivered on that date
is duly and validly issued, fully paid, and non-assessable, with no
personal liability attaching to the ownership thereof, and is not issued
in violation of any preemptive rights of stockholders, and the
Underwriters have received good title to the Shares purchased by them,
respectively, from the Company and each of the Selling Stockholders, as
applicable, for the consideration contemplated herein and in good faith
and without notice of any adverse claim within the meaning of the Uniform
Commercial Code, free and clear of any liens, security interests,
pledges, charges, encumbrances, stockholders' agreements, voting trusts
and other claims. The Common Stock, the Firm Shares and the Option Shares
conform to all statements relating thereto contained in the Registration
Statement or the Prospectus.
(viii) To the knowledge of such counsel, any contract, agreement,
instrument, lease or license required to be described in the Registration
Statement or the Prospectus has been properly described therein. To the
knowledge of such counsel, any contract, agreement, instrument, lease or
license required to be filed as an exhibit to the Registration Statement
has been filed with the Commission as an exhibit to or has been
incorporated as an exhibit by reference into the Registration Statement.
(ix) Insofar as statements in the Prospectus purport to summarize the
status of litigation or the provisions of laws, rules, regulations,
orders, judgments, decrees, contracts, agreements, instruments, leases or
licenses, such statements have been prepared or reviewed by such counsel
and to the knowledge of such counsel, accurately reflect the status of
such litigation and provisions purported to be summarized and are correct
in all material respects.
12
(x) The Company is not an "investment company" as defined in Section
3(a) of the Investment Company Act and, if the Company conducts its
business as set forth in the Prospectus, will not become an "investment
company" and will not be required to be registered under the Investment
Company Act.
(xi) To the knowledge of such counsel, no person or entity has the
right to require registration of shares of Common Stock or other
securities of the Company because of the filing or effectiveness of the
Registration Statement except such persons or entities from whom written
waivers of such rights have been received prior to the Closing Date.
(xii) The Registration Statement has become effective under the Act.
No Stop Order has been issued and no proceedings for that purpose has
been instituted or are threatened, pending, or to such counsel's
knowledge, contemplated.
(xiii) The Registration Statement, any Rule 430A Prospectus, and the
Prospectus, and any amendment or supplement thereto (other than financial
statements and other financial data and schedules which are or should be
contained in any thereof, as to which such counsel need express no
opinion), comply as to form in all material respects with the
requirements of the Act and the Regulations. To the knowledge of such
counsel, the conditions for the use of Form S-2 have been satisfied with
respect to the Registration Statement.
(xiv) Such counsel has no reason to believe that any of the
Registration Statement, any Rule 430A Prospectus, or the Prospectus, or
any amendment or supplement thereto (other than financial statements and
other financial data and schedules which are or should be contained in
any thereof, as to which such counsel need express no opinion), contains
any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading.
(xv) To the knowledge of such counsel, since the effective date of the
Registration Statement, no event has occurred which should have been set
forth in an amendment or supplement to the Registration Statement or the
Prospectus which has not been set forth in such an amendment or
supplement.
(xvi) The agreement of each officer and director of the Company and
each Selling Stockholder, stating that for a period of 180 days from the
date on which the public offering of the Shares commences, such party
will not, without the Representatives' prior written consent, offer,
pledge, sell, contract to sell, grant any option for the sale of, or
otherwise dispose of, directly or indirectly, any shares of Common Stock
(or any other securities of the Company or any security or other
instrument which by its terms is convertible into, exercisable for, or
exchangeable for shares of Common Stock or other securities of the
Company, including, without limitation, any shares of Common Stock
issuable under any employee stock options), beneficially owned by such
party, has been duly and validly authorized, executed and delivered by
such party and constitutes the legal, valid and binding obligation of
such party enforceable against such party in accordance with its terms.
In addition, such counsel shall state that such counsel has participated in
the preparation of the Registration Statement and the Prospectus and in
conferences with officers and other representative of the Company,
representative of the Representatives and representative of the independent
accountants of the Company, at which conferences the contents of the
Registration Statement and the Prospectus and related matters were discussed
and, although such counsel has not independently verified and is not passing
upon and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and the
Prospectus (except as specified in the foregoing opinion), on the basis of the
foregoing and relying as to materiality upon the representations of executive
officers of the Company after conferring with such executive officers, no facts
have come to the attention of such counsel which lead such counsel to believe
that the Registration Statement at the time it became effective contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated
13
therein or necessary to make the statements therein not misleading, or that the
Prospectus, except for the financial statements and other financial and
statistical data included therein as to which counsel need express no opinion,
as amended or supplemented on the date thereof contained any untrue statement of
a material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering their opinion as aforesaid, counsel may rely upon an opinion or
opinions, each dated the Closing Date, of other counsel retained by the Company
as to laws of any jurisdiction other than the Federal laws of the United States,
the laws of the State of New York or the General Corporate Law of the State of
Delaware, provided that (1) each such local counsel is reasonably acceptable to
the Representatives and (2) such reliance is expressly authorized by each
opinion so relied upon and a copy of each such opinion is addressed to the
Representatives and is in form and substance reasonably satisfactory to them and
their counsel. In addition, such counsel may rely, as to matters of fact, to the
extent such counsel deems proper, on certificates of responsible officers of the
Company, provided that executed copies of such certificates are provided to the
Representatives.
(g) The Representatives shall have received on the Firm Shares Closing
Date from Xxxxxx Xxxxx, P.C., counsel to the Selling Stockholders, an
opinion, addressed to the Representatives, and dated such Closing Date, to
the effect that:
(i) The Selling Stockholders have all requisite power and authority
to execute, deliver and perform this Agreement and to issue and sell the
Shares. This Agreement has been duly authorized, executed and delivered
by each of the Selling Stockholders, is the legal, valid and binding
obligation of each of the Selling Stockholders and (subject to applicable
bankruptcy, insolvency, and other laws affecting the enforceability of
creditors' rights generally) is enforceable as to each of the Selling
Stockholders in accordance with its terms. No consent, authorization,
approval, order, license, certificate or permit of or from, or
declaration or filing with, any federal state, local or other
governmental authority or any court or other tribunal is required by any
of the Selling Stockholders, for the execution, delivery or performance
by the Selling Stockholders of this Agreement (except filings under the
Act which have been made prior to the Closing Date and consents
consisting only of consents under "blue sky" or securities laws). To the
knowledge of such counsel, no consent of any party to any contract,
agreement, instrument, lease, license, indenture, mortgage, deed of
trust, note, arrangement or understanding to which any of the Selling
Stockholders is a party, or to which any of their respective properties
or assets are subject, is required for the execution, delivery or
performance of this Agreement; and the execution, delivery and
performance of this Agreement will not violate, result in a breach of,
conflict with, or (with or without the giving of notice or the passage of
time or both) entitle any party to terminate or call a default under any
such contract, agreement, instrument, lease, license, indenture,
mortgage, deed of trust, note, arrangement or understanding, in each case
known to such counsel, or violate, result in a breach of, or conflict
with any law, rule, regulation, order, judgment, or decree binding on any
of the Selling Stockholders.
(ii) Such opinion delivered on the Firm Shares Closing Date shall
state that each Share, to be delivered on that date is duly and validly
issued, fully paid, and non-assessable, with no personal liability
attaching to the ownership thereof, and is not issued in violation of any
preemptive rights of stockholders, and the Underwriters have received
good title to the Shares purchased by them, respectively, from the
Selling Stockholders, as applicable, for the consideration contemplated
herein and in good faith and without notice of any adverse claim within
the meaning of the Uniform Commercial Code, free and clear of any liens,
security interests, pledges, charges, encumbrances, stockholders'
agreements, voting trusts and other claims.
(h) All proceedings taken in connection with the sale of the Firm Shares
and the Option Shares as herein contemplated shall be satisfactory in form
and substance to the Representatives and their counsel, and the Underwriters
shall have received from Squadron, Ellenoff, Plesent & Xxxxxxxxx, LLP, a
favorable opinion, addressed to the Representatives and dated such Closing
Date, with respect to the
14
Shares, the Registration Statement and the Prospectus, and such other
related matters, as the Representatives may reasonably request, and the
Company and the Selling Stockholders shall have furnished to Squadron,
Ellenoff, Plesent & Xxxxxxxxx, LLP, such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
6. COVENANTS OF THE COMPANY AND THE SELLING STOCKHOLDERS.
(a) The Company covenants and agrees as follows:
(i) The Company shall use its best efforts to cause the Registration
Statement to become effective as promptly as possible. If the Registration
Statement has become or becomes effective with a form of prospectus omitting
Rule 430A information, or filing of the Prospectus is otherwise required
under Rule 424(b), the Company will file the Prospectus, properly completed,
pursuant to Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to you of such timely filing. The Company shall notify
you immediately, and confirm such notice in writing, (A) when the
Registration Statement and any post-effective amendment thereto become
effective, (B) of the receipt of any comments from the Commission or the
"blue sky" or securities authority of any jurisdiction regarding the
Registration Statement, any post-effective amendment thereto, the
Prospectus, or any amendment or supplement thereto, and (C) of the receipt
of any notification with respect to a Stop Order. The Company shall not file
any amendment to the Registration Statement or supplement to the Prospectus
unless the Company has furnished the Representatives a copy for their review
prior to filing and shall not file any such proposed amendment or supplement
to which the Representatives reasonably object. The Company shall use its
best efforts to prevent the issuance of any Stop Order and, if issued, to
obtain as soon as possible the withdrawal thereof.
(ii) During the time when a prospectus relating to the Shares is
required to be delivered hereunder or under the Act or the Regulations,
comply so far as it is able with all requirements imposed upon it by the
Act, as now existing and as hereafter amended, and by the Regulations, as
from time to time in force, so far as necessary to permit the continuance of
sales of or dealings in the Shares in accordance with the provisions hereof
and the Prospectus. If, at any time when a prospectus relating to the Shares
is required to be delivered under the Act and the Regulations, any event as
a result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall be
necessary to amend or supplement the Prospectus to comply with the Act or
the Regulations, the Company promptly shall prepare and file with the
Commission, subject to the third sentence of paragraph (i) of this Section
6(a), an amendment or supplement which shall correct such statement or
omission or an amendment which shall effect such compliance.
(iii) The Company shall make generally available to its security holders
and to the Representatives as soon as practicable, but not later than 45
days after the end of the 12-month period beginning at the end of the fiscal
quarter of the Company during which the Effective Date (or 90 days if such
12-month period coincides with the Company's fiscal year), an earnings
statement (which need not be audited) of the Company, covering such 12-month
period, which shall satisfy the provisions of Section 11(a) of the Act or
Rule 158 of the Regulations.
(iv) The Company shall furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including all exhibits thereto, Incorporated Documents and
amendments thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto or Incorporated Documents) and all
amendments thereof and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act or the Regulations, as many
copies of any preliminary prospectus and the Prospectus and any amendments
thereof and supplements thereto as the Representatives may reasonably
request.
(v) The Company shall cooperate with the Representatives and their
counsel in endeavoring to qualify the Shares for offer and sale under the
laws of such jurisdictions as the Representatives may
15
designate and shall maintain such qualifications in effect so long as
required for the distribution of the Shares; provided, however, that the
Company shall not be required in connection therewith, as a condition
thereof, to qualify as a foreign corporation or to execute a general consent
to service of process in any jurisdiction or subject itself to taxation as
doing business in any jurisdiction.
(vi) For a period of five years after the date of this Agreement, the
Company shall supply to each of the Representatives, and to each other
Underwriter who may so request in writing, copies of such financial
statements and other periodic and special reports as the Company may from
time to time distribute generally to the holders of any class of its capital
stock and to furnish to each of the Representatives a copy of each annual or
other report it shall be required to file with the Commission.
(vii) Without the prior written consent of the Representatives, for a
period of 180 days from the date on which a public offering of the Shares
commences, the Company shall not issue, sell or register with the Commission
or otherwise dispose of, directly or indirectly, any securities of the
Company (or any securities convertible into or exercisable or exchangeable
for securities of the Company), except for the issuance of the Shares
pursuant to the Registration Statement.
(viii) On or before completion of this offering, the Company shall make
all filings required under applicable securities laws and by the NASDAQ
National Market.
(ix) Until the expiration of three years from the Closing Date, or such
later date as the Company and Xxxxxx & Xxxxxxx, Inc. may agree, if Xxxxxx &
Xxxxxxx, Inc., individually and not as a Representative of the Underwriters,
shall so indicate in writing to the Company, the Company shall use its best
efforts to cause an individual selected from time to time by Xxxxxx &
Xxxxxxx, Inc. to be elected as a director of the Company. Such director
shall be entitled to receive reimbursement for expenses and shall be
compensated in the same manner as the other directors of the Company. Xxxxxx
& Xxxxxxx, Inc. and such director shall be indemnified to the same extent as
the other directors of the Company.
(x) Prior to each Closing Date and for a period of 25 days thereafter,
you shall be given reasonable written prior notice of any press release or
other direct or indirect communication and of any press conference with
respect to the Company, the financial conditions, results of operations,
business, properties, assets, liabilities of the Company, or this offering.
(b) The Company agrees to pay, or reimburse if paid by the Representatives,
whether or not the transactions contemplated hereby are consummated or this
Agreement is terminated, all costs and expenses relating to the registration and
public offering of the Shares including those relating to: (i) the preparation,
printing, filing and distribution of the Registration Statement including all
exhibits thereto, each preliminary prospectus, the Prospectus, all amendments
and supplements to the Registration Statement and the Prospectus, and any
documents required to be delivered with any Preliminary Prospectus or the
Prospectus, and the printing, filing and distribution of the Agreement Among
Underwriters, this Agreement and related documents; (ii) the preparation and
delivery of certificates for the Shares to the Underwriters; (iii) the
registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the various jurisdictions referred to in Section
6(a)(v), including the fees and disbursements of counsel for the Underwriters in
connection with such registration and qualification and the preparation,
printing, distribution and shipment of preliminary and supplementary Blue Sky
memoranda; (iv) the furnishing (including costs of shipping and mailing) to the
Representatives and to the Underwriters of copies of each preliminary
prospectus, the Prospectus and all amendments or supplements to the Prospectus,
and of the several documents required by this Section to be so furnished, as may
be reasonably requested for use in connection with the offering and sale of the
Shares by the Underwriters or by dealers to whom Shares may be sold; (v) the
filing fees of the National Association of Securities Dealers, Inc. in
connection with its review of the terms of the public offering; (vi) the
furnishing (including costs of shipping and mailing) to the Representatives and
to the Underwriters of copies of all reports and information required by Section
6(a)(vi); (vii) inclusion of the Shares for quotation on the NASDAQ National
Market System; and (viii) all transfer taxes, if any, with respect to the sale
and delivery of the Shares by the Company and the Selling Stockholder to the
Underwriters. Except as otherwise contemplated by Section 9 hereof, the
Underwriters will pay their own counsel fees and expenses to the extent not
otherwise covered by clause (iii) above, and their own travel and
16
travel-related expenses in connection with the distribution of the Shares.
Without limiting the Company's obligations set forth above, the Selling
Stockholders agree to pay all of the other costs and expenses incident to the
performance of its obligations under this Agreement and the sale of the Shares
by them hereunder.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act against any and all losses,
claims, damages and liabilities, joint or several (including any reasonable
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claim
asserted), to which they, or any of them, may become subject under the Act, the
Exchange Act or other Federal or state law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities arise out of
or are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, the Registration
Statement or the Prospectus or any amendment thereof or supplement thereto, or
arise out of or are based upon any omission or alleged omission to state therein
such fact required to be stated therein or necessary to make such statements
therein not misleading, or (ii) the merger of Aurora Environmental Inc. with and
into the Company, including for such purposes, any untrue statement or alleged
untrue statement of a material fact contained in any proxy statement or
registration statement related to such merger, or any amendment thereof as
supplement thereto, or arise out of or are based upon any omission or alleged
omission to state therein such fact required to be stated therein or necessary
to make such statements therein not misleading. The Selling Stockholders agree,
jointly and not severally, to indemnify each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, against any and all losses, claims, damages and
liabilities, joint or several (including any reasonable investigation, legal and
other expenses incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted), to which they, or any
of them, may become subject under the Act, the Exchange Act or other Federal or
state law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact with respect to such
Selling Stockholders contained in any preliminary prospectus, the Registration
Statement or the Prospectus or any amendment thereof or supplement thereto
(which amendments or supplements are furnished to such Selling Stockholders), or
which arise out of or are based upon any omission or alleged omission to state
therein such fact required to be stated therein or necessary to make such
statements therein not misleading, but only with reference to information
relating to such Selling Stockholders furnished in writing to the Company by or
on behalf of such Selling Stockholders expressly for use in connection with the
preparation of the Registration Statement and Prospectus or any amendment
thereof or supplement thereto. Such indemnity shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter) on account of any
losses, claims, damages or liabilities arising from the sale of the Shares to
any person by such Underwriter if such untrue statement or omission or alleged
untrue statement or omission was made in such preliminary prospectus, the
Registration Statement or the Prospectus, or such amendment or supplement, in
reliance upon and in conformity with information furnished in writing to the
Company by the Representatives on behalf of any Underwriter specifically for use
therein. The obligations of the Selling Stockholders, pursuant to this Section
7(a) and Section 8, shall be limited to an amount not exceeding the product of
the Per Share Price to Public of the Shares as set forth on the cover page of
the Prospectus and the number of Shares being sold by each of them. In no event
shall the indemnification agreement contained in this Section 7(a) inure to the
benefit of any Underwriter on account of any losses, claims, damages,
liabilities or actions arising from the sale of the Shares upon the public
offering to any person by such Underwriter if such losses, claims, damages,
liabilities or actions arise out of, or are based upon, a statement or omission
or alleged omission in a preliminary prospectus and if, in respect to such
statement, omission or alleged omission, the Prospectus differs in a material
respect from such preliminary prospectus and a copy of the Prospectus has not
been sent or given to such person at or prior to the confirmation of such sale
to such person. This indemnity agreement will be in addition to any liability
which the Company and the Selling Stockholders may otherwise have.
17
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, each
director of the Company, and each officer of the Company who signs the
Registration Statement and the Selling Stockholders, to the same extent as the
foregoing indemnity from the Company and the Selling Stockholders to each
Underwriter, but only insofar as such losses, claims, damages or liabilities
arise out of or are based upon any untrue statement or omission or alleged
untrue statement or omission which was made in any Preliminary Prospectus, any
Rule 430A Prospectus, the Registration Statement or the Prospectus, or any
amendment thereof or supplement thereto, which were made in reliance upon and in
conformity with information furnished in writing to the Company by the
Representatives on behalf of any Underwriter for specific use therein; provided,
however, that the obligation of each Underwriter to indemnify the Company
(including any controlling person, director or officer thereof) and the Selling
Stockholders shall be limited to the net proceeds received by the Company and
the Selling Stockholders, respectively, from such Underwriter. For all purposes
of this Agreement, the amounts of the selling concession and reallowance set
forth in the Prospectus constitute the only information furnished in writing by
or on behalf of any Underwriter expressly for inclusion in any Preliminary
Prospectus, any Rule 430A Prospectus, the Registration Statement or the
Prospectus or any amendment or supplement thereto.
(c) Any party that proposes to assert the right to be indemnified under this
Section will, promptly after receipt of notice of commencement of any action,
suit or proceeding against such party in respect of which a claim is to be made
against an indemnifying party or parties under this Section, notify each such
indemnifying party of the commencement of such action, suit or proceeding,
enclosing a copy of all papers served. No indemnification provided for in
Section 7(a) or 7(b) shall be available to any party who shall fail to give
notice as provided in this Section 7(c) if the party to whom notice was not
given was unaware of the proceeding to which such notice would have related and
was prejudiced by the failure to give such notice but the omission so to notify
such indemnifying party of any such action, suit or proceeding shall not relieve
it from any liability that it may have to any indemnified party for contribution
or otherwise than under this Section. In case any such action, suit or
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate in, and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably 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 and the approval by the indemnified
party of such counsel, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses, except as provided below and
except for the reasonable costs of investigation subsequently incurred by such
indemnified party in connection with the defense thereof. The indemnified party
shall have the right to employ its counsel in any such action, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment of counsel by such indemnified party has been
authorized in writing by the indemnifying parties, (ii) the indemnified party
shall have reasonably concluded that there may be a conflict of interest between
the indemnifying parties and the indemnified party in the conduct of the defense
of such action (in which case the indemnifying parties shall not have the right
to direct the defense of such action on behalf of the indemnified party), or
(iii) the indemnifying parties shall not have employed counsel to assume the
defense of such action within a reasonable time after notice of the commencement
thereof, in each of which cases the reasonable fees and expenses of counsel
shall be at the expense of the indemnifying parties. An indemnifying party shall
not be liable for any settlement of any action, suit, proceeding or claim
effected without its written consent.
8. CONTRIBUTION. In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in Sections 7(a) and
(b) is due in accordance with its terms but for any reason is held to be
unavailable from the Company, the Selling Stockholders or the Underwriters, the
Company, the Selling Stockholders and the Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities (including any investigation,
legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claims asserted,
but after deducting any contribution received by the Company from persons other
than the Underwriters, such as the Selling Stockholders, persons who control the
Company within the meaning of the Act, officers of the Company who
18
signed the Registration Statement and directors of the Company, who may also be
liable for contribution) to which the Company and the Selling Stockholders and
one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other from the
offering of the Shares or, if such allocation is not permitted by applicable law
or indemnification is not available as a result of the indemnifying party not
having received notice as provided in Section 7 hereof, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company and the Selling Stockholders on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Company, the Selling Stockholders and the Underwriters shall be deemed to
be in the same proportion as (x) the total proceeds from the Offering (net of
underwriting discounts but before deducting expenses) received by the Company or
the Selling Stockholders from the sale of the Shares, as set forth in the table
on the cover page of the Prospectus (but not taking into account the use of the
proceeds of such sale of Shares by the Company), bear to (y) the underwriting
discount received by the Underwriters, as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company, the Selling
Stockholders and the Underwriters shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
related to information supplied by the Company, the Selling Stockholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company,
the Selling Stockholders and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 8, (i) in no case shall any Underwriter (except as may be provided
in the Agreement Among Underwriters) be liable or responsible for any amount in
excess of the underwriting discount applicable to the Shares purchased by such
Underwriter hereunder, (ii) in no case shall any of the Selling Stockholders be
liable or responsible for any amount in excess of the product of the Per Share
Price to Public of the Shares as set forth on the cover page of the Prospectus
and the number of Shares being sold by each of them subject to the limitation
expressed in Section 7(a), and (iii) the Company shall be liable and responsible
for any amount in excess of the underwriting discount and the amount referred to
in clause (ii); provided, however (i) that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Company within the
meaning of the Section 15 of the Act or Section 20(a) of the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to clauses (i), (ii) and (iii) in the immediately
preceding sentence of this Section 8. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this Section, notify such party
or parties from whom contribution may be sought, but the omission so to notify
such party or parties from whom contribution may be sought shall not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have hereunder or otherwise than under this Section. No party
shall be liable for contribution with respect to any action, suit, proceeding or
claim settled without its written consent. The Underwriters' obligations to
contribute pursuant to this Section 8 are several in proportion to their
respective underwriting commitments and not joint.
9. TERMINATION. This Agreement may be terminated with respect to the
Shares to be purchased on any Closing Date by the Representatives by notifying
the Company at any time prior to the purchase of the Shares:
(a) in the absolute discretion of the Representatives at or before any
Closing Date: (i) if on or prior to such date, any domestic or international
event or act or occurrence has materially disrupted, or in the opinion of
the Representatives will in the future materially disrupt, the securities
markets; (ii) if
19
there has occurred any new outbreak or material escalation of hostilities or
other calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in the judgment of the Representatives,
inadvisable to proceed with the Offering; (iii) if there shall be such a
material adverse change in general financial, political or economic
conditions or the effect of international conditions on the financial
markets in the United States such as to make it, in the judgment of the
Representatives, inadvisable or impracticable to market the Shares; (iv) if
trading in the Shares has been suspended by the Commission or trading
generally on the New York Stock Exchange, Inc., the American Stock Exchange,
Inc. or the NASDAQ National Market has been suspended or limited, or minimum
or maximum ranges for prices for securities shall have been fixed, or
maximum ranges for prices for securities have been required, by said
exchanges or by order of the Commission, the National Association of
Securities Dealers, Inc., or any other governmental or regulatory authority;
or (v) if a banking moratorium has been declared by any state or federal
authority, or
(b) at or before any Closing Date, if any of the conditions specified in
Section 5 shall not have been fulfilled when and as required by this
Agreement.
If this Agreement is terminated pursuant to any of its provisions, neither
the Company nor the Selling Stockholders shall be under any liability to any
Underwriter, and no Underwriter shall be under any liability to the Company or
the Selling Stockholders, except that (y) if this Agreement is terminated by the
Representatives or the Underwriters because of any failure, refusal or inability
on the part of the Company or the Selling Stockholders or all of them to comply
with the terms or to fulfill any of the conditions of this Agreement, the
Company and the Selling Stockholders will reimburse the Underwriters for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
incurred by them in connection with the proposed purchase and sale of the Shares
or in contemplation of performing their obligations hereunder and (z) no
Underwriter who shall have failed or refused to purchase the Shares agreed to be
purchased by it under this Agreement, without some reason sufficient hereunder
to justify cancellation or termination of its obligations under this Agreement,
shall be relieved of liability to the Company and the Selling Stockholders or to
the other Underwriters for damages occasioned by its failure or refusal.
10. SUBSTITUTION OF UNDERWRITERS. If one or more of the Underwriters shall
fail (other than for a reason sufficient to justify the cancellation or
termination of this Agreement under Section 9) to purchase on any Closing Date
the Shares agreed to be purchased on such Closing Date by such Underwriter or
Underwriters, the Representatives may find one or more substitute underwriters
to purchase such Shares or make such other arrangements as the Representatives
may deem advisable or one or more of the remaining Underwriters may agree to
purchase such Shares in such proportions as may be approved by the
Representatives, in each case upon the terms set forth in this Agreement. If no
such arrangements have been made by the close of business on the business day
following such Closing Date:
(a) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall not exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date, then
each of the nondefaulting Underwriters shall be obligated to purchase such
Shares on the terms herein set forth in proportion to their respective
obligations hereunder; provided, that in no event shall the maximum number
of Shares that any Underwriter has agreed to purchase pursuant to Section 1
be increased pursuant to this Section 10 by more than one-ninth of such
number of Shares without the written consent of such Underwriter, or
(b) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall exceed 10% of the Shares that all
the Underwriters are obligated to purchase on such Closing Date, then the
Company shall be entitled to an additional business day within which it may,
but is not obligated to, find one or more substitute underwriters reasonably
satisfactory to the Representatives to purchase such Shares upon the terms
set forth in this Agreement.
In any such case, either the Representatives or the Company shall have the
right to postpone the applicable Closing Date for a period of not more than five
business days in order that necessary changes and arrangements (including any
necessary amendments or supplements to the Registration Statement or Prospectus)
may be effected by the Representatives and the Company. If the number of Shares
to be
20
purchased on such Closing Date by such defaulting Underwriter or Underwriters
shall exceed 10% of the Shares that all the Underwriters are obligated to
purchase on such Closing Date, and none of the nondefaulting Underwriters or the
Company shall make arrangements pursuant to this Section within the period
stated for the purchase of the Shares that the defaulting Underwriters agreed to
purchase, this Agreement shall terminate with respect to the Shares to be
purchased on such Closing Date without liability on the part of any
nondefaulting Underwriter to the Company and the Selling Stockholders and
without liability on the part of the Company and the Selling Stockholders,
except in both cases as provided in Sections 6(b), 7, 8 and 9. The provisions of
this Section shall not in any way affect the liability of any defaulting
Underwriter to the Company or the Selling Stockholders or the nondefaulting
Underwriters arising out of such default. A substitute underwriter hereunder
shall become an Underwriter for all purposes of this Agreement.
11. MISCELLANEOUS. The respective agreements, representations, warranties,
indemnities and other statements of the Company or its officers, of the Selling
Stockholders and of the Underwriters set forth in or made pursuant to this
Agreement shall remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or the Selling
Stockholders or any of the officers, directors or controlling persons referred
to in Sections 7 and 8 hereof, and shall survive delivery of and payment for the
Shares. The provisions of Sections 6(b), 7, 8 and 9 shall survive the
termination or cancellation of this Agreement.
This Agreement has been and is made for the benefit of the Underwriters, the
Company and the Selling Stockholders and their respective successors and assigns
and, to the extent expressed herein, for the benefit of persons controlling any
of the Underwriters, or the Company, and directors and officers of the Company,
and their respective successors and assigns, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include any purchaser of Shares from any Underwriter merely
because of such purchase.
All notices and communications hereunder shall be in writing and mailed or
delivered, or by telefax or telegraph if subsequently confirmed by letter, (a)
if to the Representatives, to them in care of Xxxxxx & Xxxxxxx, Inc., Xxx
Xxxxxxx Xxxxx, 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx
Xxxxxxxxx, Managing Director, telecopy: (000) 000-0000, (b) if to the Company,
to the Company's agent for service as such agent's address appears on the cover
page of the Registration Statement, and (c) if to the Selling Stockholders, to
such Selling Stockholder at its address appearing in Schedule II.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to principles of conflict of laws.
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, or neuter, singular or plural, as the identity of the
person or persons or entity or entities require.
All section headings herein are for convenience of reference only and are
not part of this Agreement, and no construction or inference shall be derived
therefrom.
21
Please confirm that the foregoing correctly sets forth the agreement among
us.
Very truly yours,
ATC ENVIRONMENTAL INC.
By:___________________________________
Name:
Title:
XXXXXX XXXXX 1995 CHARITABLE
REMAINDER TRUST
By:___________________________________
Name: Xxx Xxxxxxxx
Title: Trustee
By: __________________________________
Xxxxxx Xxxxx
Confirmed on behalf of itself
and as the Representative of the several Underwriters
named in Schedule I annexed hereto:
XXXXXX & XXXXXXX, INC.
By: __________________________________
Name:
Title:
PENNSYLVANIA MERCHANT GROUP LTD
By:___________________________________
Name:
Title:
22
SCHEDULE I
NUMBER OF FIRM
SHARES TO BE
NAME OF UNDERWRITER PURCHASED
------------------------------------------------------------------------------------------------- ---------------
Xxxxxx & Xxxxxxx, Inc............................................................................
Pennsylvania Merchant Group Ltd..................................................................
Total........................................................................................ 2,400,000
23
SCHEDULE II
NUMBER OF
SHARES
NAME OF SELLING STOCKHOLDER TO BE SOLD
------------------------------------------------------------------------------------------------------ -----------
Xxx Xxxxxxxx, as trustee for the Xxxxxx Xxxxx 1995 Charitable Remainder Trust
[Address]............................................................................................ 560,000
Xxxxxx Xxxxx
ATC Environmental, Inc.
000 Xxxx 00xx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 10010............................................................................. 140,000
-----------
Total............................................................................................. 700,000
24
