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EXHIBIT 1
__________ Shares
JLM INDUSTRIES, INC.
Common Stock
UNDERWRITING AGREEMENT
____________, 1997
Xxxxxxxxxxx & Co., Inc.
X.X. Xxxxxxx & Sons, Inc.
c/o Oppenheimer & Co., Inc
Xxxxxxxxxxx Xxxxx
000 Xxxxxxx Xxxxxx
World Financial Center
New York, New York 10281
On behalf of the Several
Underwriters named on
Schedule I attached hereto.
Ladies and Gentlemen:
JLM Industries, Inc., a Delaware corporation (the "Company"),
and Xxxx X. Xxxxxxxxx (the "Selling Stockholder") propose, subject to the terms
and conditions contained herein, to sell to you and the other underwriters
named on Schedule I to this Agreement (the "Underwriters"), for whom you are
acting as Representatives (the "Representatives"), an aggregate of __________
shares (the "Firm Shares") of the Company's Common Stock, $0.01 par value (the
"Common Stock"). Of the _____ Firm Shares, _______ are to be issued and sold
by the Company and ________ are to be sold by the Selling Stockholder. The
respective amounts of the Firm Shares to be purchased by each of the several
Underwriters are set forth opposite their names on Schedule I hereto. In
addition, the Company also proposes to grant to the Underwriters an option to
purchase up to an additional __________ shares (the "Option Shares") of Common
Stock from it 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."
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1. Sale and Purchase of the Shares. On the basis of the
representations, warranties and covenants contained in, and subject to the
terms and conditions of, this Agreement:
(a) The Company agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at a price of $ _____ per share
(the "Initial Price"), the number of Firm Shares set forth opposite
the name of such Underwriter under the column "Number of Firm Shares
to be Purchased from the Company" on Schedule I to this Agreement,
subject to adjustment in accordance with Section 11 hereof. The
Selling Stockholder agrees to sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to
purchase from the Selling Stockholder, at the Initial Price, the
number of Firm Shares set forth opposite the name of such Underwriter
under the column "Number of Firm Shares to be Purchased from the
Selling Stockholder" on Schedule I to this Agreement, subject to
adjustment in accordance with Section 11 hereof.
(b) The Company grants to the several
Underwriters an option to purchase, severally and not jointly, all or
any part of the 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 Representatives 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 overallotments 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 45 days after the date of this
Agreement, in each case upon written or telegraphic notice, or verbal
or telephonic notice confirmed by written or telegraphic notice, by
the Representatives 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 the 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 Stockholder 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 drawn to the order of the Company for the shares purchased
from the Company and to the Selling Stockholder for the shares purchased from
the Selling Stockholder, against delivery of the respective certificates
therefor to the Representatives, shall take place at the offices of Xxxxxx &
Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York City
time, (a) on the third full business day following the first day that the
shares are traded, (b) if this Agreement is executed and delivered after 4:30
p.m., New York City time, on the fourth business day following the date of this
Agreement, or (c) at such time on such other date, not later than the fourth
full business day following the Effective Date (as hereinafter defined), as
shall be agreed upon by the Company,
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the Selling Stockholder and the Representatives (such time and date of delivery
and payment are called the "Firm Shares Closing Date").
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 & Xxxxx 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 are called the "Option Shares Closing Date"). The Firm
Shares Closing Date and the Option Shares Closing Date 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 business days before the Firm Shares Closing Date or, in the case
of Option Shares, on the day of notice of exercise of the option as described
in Section 1(b) and shall be made available to the Representatives for checking
and packaging, at such place as is designated by the Representatives, one full
business day before the Firm Shares Closing Date (or the Option Shares Closing
Date in the case of the Option Shares).
3. Registration Statement and Prospectus; Public
Offering. The Company has prepared in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the published
rules and regulations thereunder (the "Rules") adopted by the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-1
(No. 333-_______), including a preliminary prospectus relating to the Shares,
and has filed with the Commission such registration statement and such
amendments thereto as may have been required to the date of this Agreement.
Copies of such registration statement (including all amendments thereof) and of
the related preliminary prospectus have heretofore been delivered by the
Company to you. The term "preliminary prospectus" means any preliminary
prospectus (as described in Rule 430 of the Rules) included at any time as part
of the registration statement or filed with the Commission by the Company with
the consent of the Representatives pursuant to Rule 424(a) of the Rules. The
registration statement, as amended at the time and on the date it became
effective (the "Effective Date"), including all exhibits and information, if
any, deemed to be part of the registration statement pursuant to Rule 424(b),
Rule 430A and Rule 434 of the Rules, is called the "Registration Statement."
The term "Prospectus" as used in this Agreement means the prospectus in the
form included in the Registration Statement or (A) if Rule 430(A) of the Rules
is relied on, the term "Prospectus" means the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules and (B) if Rule 434 of the
Rules is relied on, then (i) the term "Prospectus" means the "prospectus
subject to completion" (as such term is defined in Rule 434(g) of the Rules)
together with the term sheet (the "Term Sheet") required under Rule 434(b) of
the Rules and (ii) the date of such Prospectus shall be deemed to be the date
of the Term Sheet. If the Company files a registration statement to register a
portion of the Shares and relies on Rule 462(b) of the Rules for such
registration statement to become effective upon filing with the Commission (the
"Rule 462(b) Registration Statement"), then any reference to the "Registration
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Statement" herein shall be deemed to include both the registration statement
referred to above (No. 333-______) and the Rule 462(b) Registration Statement,
as each such registration statement may be amended pursuant to the Securities
Act.
The Company and the Selling Stockholder understand that the
Underwriters propose to make a public offering of the Shares, as set forth in
and pursuant to the Prospectus, as soon after the Effective Date and the date
of this Agreement as the Representatives deem advisable. The Company and the
Selling Stockholder 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. The
Company hereby represents and warrants to each Underwriter as follows:
(a) On the Effective Date, the Registration
Statement complied, and on the date of the Prospectus, the date any
post-effective amendment to the Registration Statement becomes
effective, the date any supplement or amendment to the Prospectus is
filed with the Commission and each Closing Date, the Registration
Statement and the Prospectus (and any amendment thereof or supplement
thereto) will comply, in all material respects, with the applicable
provisions of the Securities Act and the Rules; the Registration
Statement did not, as of the Effective Date, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and on the other dates referred to
above neither the Registration Statement nor the Prospectus, nor any
amendment thereof or supplement thereto, will contain any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading. When any related preliminary
prospectus was first filed with the Commission (whether filed as part
of the Registration Statement or any amendment thereto or pursuant to
Rule 424(a) of the Rules) and when any amendment thereof or supplement
thereto was first filed with the Commission, such preliminary
prospectus as amended or supplemented complied in all material
respects with the applicable provisions of the Securities Act and the
Rules and did not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading;
provided, however, that none of the representations and warranties in
this paragraph 4(a) shall apply to statements in, or omissions from,
the Registration Statement or the Prospectus made in reliance upon,
and in conformity with, information herein or otherwise furnished in
writing to the Company by the Representatives on behalf of the several
Underwriters for use in the Registration Statement or the Prospectus.
With respect to the preceding sentence, the Company acknowledges that
the only information furnished in writing by the Representatives on
behalf of the several Underwriters for use in the Registration
Statement or the Prospectus is the paragraph with respect to
stabilization on the inside front cover page of the Prospectus and the
statements contained under the caption "Underwriting" in the
Prospectus.
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(b) The Registration Statement is effective under
the Securities Act, and no stop order suspending the effectiveness of
the Registration Statement or suspending or preventing the use of the
Prospectus has been issued and no proceedings for that purpose have
been instituted or are threatened under the Securities Act; any
required filing of the Prospectus and any supplement thereto pursuant
to Rule 424(b) of the Rules has been or will be made in the manner and
within the time period required by such Rule 424(b).
(c) The financial statements of the Company
(including all notes and schedules thereto) included in the
Registration Statement and Prospectus present fairly the financial
position, the results of operations, the statements of cash flows and
the statements of stockholders' equity and the other information
purported to be shown therein of the Company and its consolidated
subsidiaries at the respective dates and for the respective periods to
which they apply; and such financial statements have been prepared in
conformity with generally accepted accounting principles, consistently
applied throughout the periods involved, are correct and complete and
are in accordance with the books and records of the Company and its
consolidated subsidiaries. The summary and selected financial data
included in the Prospectus present fairly the information shown
therein as at the respective dates and for the respective periods
specified, and the summary and selected financial data have been
presented on a basis consistent with the financial statements so set
forth in the Prospectus and other financial information. The pro
forma balance sheet and income statement information in the Prospectus
has been prepared in accordance with the applicable Rules and includes
all adjustments necessary for a fair presentation of the pro forma
financial position and results of operations of the Company and its
consolidated subsidiaries as of the dates and for the periods to which
they apply.
(d) Deloitte & Touche, whose report is filed with
the Commission as a part of the Registration Statement, are and,
during the periods covered by their reports, were independent public
accountants as required by the Securities Act and the Rules.
(e) The Company and each of its Subsidiaries (as
hereinafter defined) is a corporation duly organized, validly existing
and in good standing under their respective jurisdictions of
organization. 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 set forth on Schedule 4(e) hereto. The Company and each such
subsidiary or other entity (collectively, "Subsidiaries") is duly
qualified to do business and in good standing as a foreign corporation
in each jurisdiction in which the character or location of its assets
or properties (owned, leased or licensed) or the nature of its business
makes such qualification necessary except for such jurisdictions where
the failure to so qualify would not have a material adverse effect on
the assets or properties, business, results of operations prospects or
condition (financial or otherwise) of the Company and its Subsidiaries
considered as a whole (a "Material Adverse Effect"). Except as
disclosed in the Prospectus, the Company does not own, lease or license
any asset or property or conduct any, business outside the United
States of America. The Company and each of its Subsidiaries has all
requisite corporate power and authority, and all necessary
authorizations, approvals, consents,
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orders, licenses, certificates and permits of and from all
governmental or regulatory bodies or any other person or entity, to
own, lease and license its assets and properties and conduct its
businesses as now being conducted and as described in the Prospectus
except for such authorizations, approvals, consents, orders, material
licenses, certificates and permits the failure to so obtain would not
have a Material Adverse Effect; no such authorization, approval,
consent, order, license, certificate or permit contains a materially
burdensome restriction other than as disclosed in the Prospectus; and
the Company has all such corporate power and authority and such
authorizations, approvals, consents, orders, licenses, certificates
and permits to enter into, deliver and perform this Agreement and to
issue and sell the Shares.
(f) Each of the Company and its Subsidiaries
owns, or possesses adequate and enforceable rights, either as owner or
licensee, to use, all trademarks, trademark applications, trade names,
service marks, copyrights, copyright applications, licenses, know-how
and other similar rights and proprietary knowledge (collectively,
"Intangibles") necessary for the conduct of its business as described
in the Prospectus. Neither the Company nor any of its Subsidiaries
has received any notice of, or is aware of, any infringement of or
conflict with asserted rights of others with respect to any
Intangibles.
(g) The Company and each of its Subsidiaries has
good and marketable title in fee simple to each of the items of real
property and good and marketable title to each of the items of
personal property which are reflected in the financial statements
referred to in Section 4(b) or are referred to in the Registration
Statement or the Prospectus as being owned by it and valid and
enforceable leasehold interests in each of the items of real and
personal property which are referred to in the Registration Statement
or the Prospectus as being leased by it in each case free and clear of
all liens, encumbrances, claims, security interests and defects, other
than those described in the Prospectus.
(h) There is no action, suit or proceeding before
or by any court or governmental agency or body, domestic or foreign,
pending or, to the Company's knowledge, threatened (and the Company
does not know of any basis therefor) against or involving the assets,
properties or business of, the Company or its Subsidiaries or their
respective directors or officers which is required to be disclosed in
the Prospectus that is not so disclosed.
(i) Subsequent to the respective dates as of
which information is given in the Registration Statement and the
Prospectus, except as described therein, (i) there has not been any
material adverse change in the assets or properties, business, results
of operations, prospects or condition (financial or otherwise), of the
Company or its Subsidiaries, whether or not arising from transactions
in the ordinary course of business; (ii) none of the Company or its
Subsidiaries has sustained any loss or interference with its assets,
businesses or properties (whether owned or leased) from fire,
explosion, earthquake, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or any court or legislative or
other governmental action, order or decree
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which would have a Material Adverse Effect; and (iii) and since the
date of the latest balance sheet included in the Prospectus, except as
reflected therein, the Company has not (1) issued any securities,
other than those issuances set forth on Schedule 4(i) hereto. [i.e.
the issuance of securities pursuant to the exercise of options
granted under stock option plans or agreements existing prior to the
date of the latest balance sheet included in the Registration
Statement and Prospectus], or incurred any liability or obligation,
direct or contingent, for borrowed money, except for borrowings under
its existing credit facilities in the ordinary course of business, (2)
entered into any transaction not in the ordinary course of business or
(3) declared or paid any dividend or made any distribution on any
shares of its capital stock or redeemed, purchased or otherwise
acquired or agreed to redeem, purchase or otherwise acquire any shares
of its stock.
(j) There is no document, contract or other
agreement of a character required to be described in the Registration
Statement or Prospectus or to be filed as an exhibit to the
Registration Statement which is not described or filed as required by
the Securities Act or the Rules. Each agreement described in the
Registration Statement and the Prospectus or listed in the Exhibits to
the Registration Statement is in full force and effect and is valid
and enforceable by and against the Company in accordance with its
terms. Neither the Company, nor to the Company's knowledge, any other
party is in default in the observance or performance of any term or
obligation to be performed by it under any such agreement, and no
event has occurred which with notice or lapse of time or both would
constitute such a default, in any such case which default or event
would have a Material Adverse Effect. No default exists, and no event
has occurred which with notice or lapse of time or both would
constitute a default, in the due performance and observance of any
term, covenant or condition, by the Company or any of its Subsidiaries
of any other agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which any of them or their
respective properties or businesses may be bound or affected which
default or event would have a Material Adverse Effect.
(k) None of the Company or its Subsidiaries is in
violation of any franchise, license, permit, judgment, decree, order,
statute, rule or regulation or any term or provision of its
Certificate of Incorporation or by-laws.
(l) Neither the execution, delivery and
performance of this Agreement by the Company nor the consummation of
any of the transactions contemplated hereby (including, without
limitation, the issuance and sale by the Company of the Shares) will
(i) give rise to a right to terminate or accelerate the due date of
any payment due under, or conflict with or result in the breach of any
term or provision of, or constitute a default (or an event which with
notice or lapse of time or both would constitute a default) under, or
require any consent or waiver under, or result in the execution or
imposition of any lien, charge or encumbrance upon any properties or
assets of the Company or any of its Subsidiaries pursuant to the terms
of, any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company or its Subsidiaries is a party or by
which it or its Subsidiaries or any of their properties or businesses
is bound, or any franchise, license, permit, judgment, decree, order,
statute, rule or regulation applicable to the
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Company or its Subsidiaries or (ii) violate any provision of
the Certificate of Incorporation, by-laws or other organizational
documents of the Company or any of its Subsidiaries.
(m) The Company's authorized and outstanding
capital stock is on the date hereof, and will be on the Closing Date,
as set forth under the caption "Capitalization" in the Prospectus.
The certificates evidencing the Shares are in due and proper legal
form and have been duly authorized for issuance by the Company. All
of the issued and outstanding shares of Common Stock have been duly
and validly issued and are fully paid and nonassessable and none of
them was issued in violation of any preemptive or other similar right.
The Shares have been duly authorized and the Shares to be sold by the
Company, when issued and sold pursuant to this Agreement, will be duly
and validly issued, fully paid and nonassessable and the Underwriters
will receive good title to such Shares, free and clear of all liens,
security interests, pledges, changes, claims and encumbrances. There
are no statutory preemptive or other similar rights to subscribe for
or to purchase or acquire any shares of Common Stock of the Company or
its Subsidiaries or any such rights pursuant to its Certificate of
Incorporation or by-laws or any agreement or instrument to or by which
the Company or any of its Subsidiaries is party or bound. Except as
disclosed in the Prospectus, there is no outstanding option, warrant
or other right calling for the issuance of, and there is no
commitment, plan or arrangement to issue, any share of stock of the
Company or its Subsidiaries or any security convertible into, or
exercisable or exchangeable for, such stock. The Common Stock, and
the Shares conform in all material respects to all statements in
relation thereto contained in the Registration Statement and the
Prospectus. All outstanding shares of capital stock of each
Subsidiary have been duly authorized and validly issued, and are fully
paid and nonassessable and are owned directly by the Company or by
another wholly-owned subsidiary of the Company free and clear of any
security interests, liens, encumbrances, equities or claims, other
than those described in the Prospectus.
(n) No holder of securities of the Company has
rights, which have not been waived, to the registration of shares of
Common Stock or other securities, as a result of the filing of the
Registration Statement by the Company or the offering contemplated
thereby. Each stockholder, director and executive officer of the
Company has delivered to the Representatives its, his or her
enforceable written agreement (each, a "Lock-up Agreement") in the
form attached to this Agreement. To the knowledge of the Company,
from _________, 1997 through the date hereof, no such stockholder,
director or executive officer has sold any of its Common Stock or
reduced its, his or her risk through the use of any option, put, call
or other derivative security relative to its Common Stock.
(o) All necessary corporate action has been duly
and validly taken by the Company to authorize the execution, delivery
and performance of this Agreement and the issuance and sale of the
Shares by the Company. This Agreement has been duly and validly
executed and delivered by the Company and constitutes and will
constitute a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms,
except (i) as the enforceability thereof may be limited by
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bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and
by general equitable principles and (ii) to the extent that rights to
indemnity or contribution under this Agreement may be limited by
Federal and state securities laws or the public policy underlying such
laws.
(p) No labor dispute with the employees of the
Company or its Subsidiaries exists or, to the knowledge of the
Company, is threatened; and the Company is not aware of any existing
or imminent labor disturbance by the employees of any of its principal
suppliers or contractors which would have a Material Adverse Effect.
The Company is not aware of any threatened or pending litigation
between the Company or its Subsidiaries and any of its executive
officers which, if adversely determined, could have a Material Adverse
Effect and has no reason to believe that such officers will not remain
in the employment of the Company.
(q) No transaction has occurred between or among
the Company and any of its officers or directors or any affiliate or
affiliates of any such officer or director that is required to be
described in and is not described in the Prospectus.
(r) The Company has not taken, nor will it take,
directly or indirectly, any action designed to or which might
reasonably be expected to cause or result in, or which has constituted
or which might reasonably be expected to constitute, the stabilization
or manipulation of the price of the Common Stock.
(s) Each of the Company and its Subsidiaries has
filed all Federal, state, local and foreign tax returns which are
required to be filed through the date hereof, or has received
extensions thereof and such returns are each true, correct and
complete in all material respects, and has 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 and there are no tax audits or
investigations pending which if adversely determined would have a
Material Adverse Effect.
(t) The books, records and accounts of the
Company accurately and fairly reflect, in reasonable detail, the
transactions in, and dispositions of, the assets of, and the results
of operations of, the Company. The Company maintains a system of
internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles and to
maintain asset accountability, (iii) access to assets is permitted
only in accordance with management's general or specific authorization
and (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(u) The Company and its Subsidiaries are insured
by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are
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customary in the businesses in which they are engaged or propose
to engage after giving effect to the transactions described in the
Prospectus; and neither the Company nor any Subsidiary of the Company
has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue their business at a cost that would not have a Material
Adverse Effect.
(v) Each approval, consent, order, authorization,
designation, declaration or filing of, by or with any regulatory,
administrative or other governmental body necessary in connection with
the execution and delivery by the Company of this Agreement and the
consummation of the transactions herein contemplated required to be
obtained or performed by the Company (except such additional steps as
may be required by the National Association of Securities Dealers,
Inc. (the "NASD") or may be necessary to qualify the Shares for public
offering by the Underwriters under the state securities or Blue Sky
laws) has been obtained or made and is in full force and effect.
(w) The Shares have been duly authorized for
quotation on the National Association of Securities Dealers Automated
Quotation ("NASDAQ") National Market System, subject to official
Notice of Issuance, and a registration statement has been filed on
Form 8-A pursuant to Section 12 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), which registration statement
complies in all material respects with the Exchange Act.
(x) The Company has complied with all of the
requirements and filed the required forms as specified in Florida
Statutes Section 517.075.
(y) There are no affiliations with the NASD among
the Company's officers, directors or, to the best of the knowledge of
the Company, any five percent or greater stockholder of the Company,
except as set forth in the Registration Statement or otherwise
disclosed in writing to the Representatives of the Underwriters.
(z) (i) Each of the Company and its Subsidiaries
is in compliance in all material respects with all rules, laws and
regulation relating to the use, treatment, storage and disposal of
toxic substances and protection of health or the environment
("Environmental Law") which are applicable to its business; (ii) none
of the Company or its Subsidiaries has received any notice from any
governmental authority or third party of an asserted claim under
Environmental Laws; (iii) each of the Company and its Subsidiaries has
received all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its business and is in
compliance with all terms and conditions of any such permit, license
or approval; (iv) to the Company's knowledge, no facts currently exist
that will require the Company or its Subsidiaries to make future
material capital expenditures to comply with Environmental Laws; and
(v) no property which is or has been owned, leased or occupied by the
Company or its Subsidiaries has been designated as a Superfund site
pursuant to the Comprehensive Environmental
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Response, Compensation of Liability Act of 1980, as amended (42 U.S.C.
Section 9601, et seq.), or otherwise designated as a contaminated site
under applicable state or local law.
(aa) The Company is not an "investment company"
within the meaning of the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(bb) None of the Company, its Subsidiaries or any
other person associated with or acting on behalf of the Company or its
Subsidiaries including, without limitation, any director, officer,
agent or employee of the Company or its Subsidiaries has, directly or
indirectly, while acting on behalf of the Company or its Subsidiaries
(A) used any corporate funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political
activity; (B) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political
parties or campaigns from corporate funds; (C) violated any provision
of the Foreign Corrupt Practices Act of 1977, as amended; or (D) made
any other unlawful payment.
5. Representations and Warranties of the Selling
Stockholder. The Selling Stockholder hereby represents and warrants to each
Underwriter as follows:
(a) The Selling Stockholder has caused
certificates for the number of Shares to be sold by such Selling
Stockholder hereunder to be delivered to ____________ (the
"Custodian"), endorsed in blank or with blank stock powers duly
executed, with a signature appropriately guaranteed, such certificates
to be held in custody by the Custodian for delivery, pursuant to the
provisions of this Agreement and an agreement dated
__________________, 1997 among the Custodian and the Selling
Stockholder (the "Custody Agreement").
(b) The Selling Stockholder has granted an
irrevocable power of attorney (the "Power of Attorney") to the person
named therein, on behalf of the Selling Stockholder, to execute and
deliver this Agreement and any other document necessary or desirable
in connection with the transactions contemplated hereby and to deliver
the shares to be sold by the Selling Stockholder pursuant hereto.
(c) This Agreement, the Custody Agreement, the
Power of Attorney and the Lock-Up Agreement have each been duly
authorized, executed and delivered by or on behalf of the Selling
Stockholder. Each of the Custody Agreement, the Power of Attorney and
the Lock-Up Agreement constitutes a legal, valid and binding agreement
of the Selling Stockholder, enforceable in accordance with its terms.
(d) The execution and delivery by the Selling
Stockholder of, and the performance by the Selling Stockholder of its
obligations under, this Agreement will not contravene any provision of
applicable law, or any agreement or other instrument binding upon the
Selling Stockholder or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Selling Stockholder, and no consent, approval, authorization or order
of or qualification with any governmental body or agency is
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required for the performance by the Selling Stockholder of its
obligations under this Agreement, except such as may be required
by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Shares.
(e) The Selling Stockholder has, and on the Firm
Shares Closing Date will have, valid marketable title to the Shares to
be sold by the Selling Stockholder and the legal right and power, and
all authorization and approval required by law, to enter into this
Agreement and to sell, transfer and deliver the Shares to be sold by
the Selling Stockholder.
(f) Upon delivery of and payment for the Shares
to be sold by the Selling Stockholder pursuant to this Agreement, the
several Underwriters will receive valid marketable title to such
Shares free and clear of any security interests, liens, encumbrances,
equities or claims.
(g) All information relating to the Selling
Stockholder furnished in writing by the Selling Stockholder expressly
for use in the Registration Statement and Prospectus is, and on each
Closing Date will be, true, correct, and complete, and does not, and
on each Closing Date will not, contain any untrue statement of a
material fact or omit to state any material fact necessary to make
such information not misleading.
(h) The Selling Stockholder has reviewed the
Registration Statement and Prospectus and, although the Selling
Stockholder has not independently verified the accuracy or
completeness of all the information contained therein, nothing has
come to the attention of the Selling Stockholder that would lead the
Selling Stockholder to believe that (i) on the Effective Date, the
Registration Statement contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein in order to make the statements made therein not misleading
and (ii) on the Effective Date the Prospectus contained and, on each
Closing Date contains, no untrue statement of a material fact or
omitted or omits to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, misleading.
(i) The sale of Shares by the Selling Stockholder
pursuant to this Agreement is not prompted by the Selling
Stockholder's knowledge of any material information concerning the
Company or its Subsidiaries which is not set forth in the Prospectus.
(j) The Selling Stockholder has not taken and
will not take, directly or indirectly, any action designed to or that
might 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 the Shares.
(k) The Selling Stockholder has no actual
knowledge that any representation or warranty of the Company set forth
in Section 4 above is untrue or inaccurate in any material respect.
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6. 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) Notification that the Registration Statement
has become effective shall have been received by the Representatives
and the Prospectus shall have been timely filed with the Commission in
accordance with Section 7(a) 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 Stockholder contained in this Agreement and in
the certificates delivered pursuant to Section 6(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 the Selling Stockholder shall have
performed all covenants and agreements and satisfied all the
conditions contained in this Agreement required to be performed or
satisfied by them at or before such Closing Date.
(d) The Representatives shall have received on
each Closing Date a certificate, addressed to the Representatives and
dated such Closing Date, of the president and chief executive officer
and the chief financial officer or chief accounting officer of the
Company to the effect that (i) the signers of 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 this Agreement required to be performed or
satisfied by it at or prior to such Closing Date, and (ii) no stop
order suspending the effectiveness of the Registration Statement has
been issued and to the best of their knowledge, no proceedings for
that purpose have been instituted or are pending under the Securities
Act.
(e) The Representatives shall have received on
the Firm Shares Closing Date a certificate, addressed to the
Representatives and dated such Closing Date, of the Selling
Stockholder, to the effect that the Selling Stockholder has carefully
examined the Registration Statement, the Prospectus and this Agreement
and that the representations and warranties of the Selling Stockholder
contained 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 Selling Stockholder has performed all covenants and agreements and
satisfied all conditions contained this Agreement required to be
performed or satisfied by him at or prior to such Closing Date.
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(f) The Representatives shall have received on
the Effective Date, at the time this Agreement is executed and on each
Closing Date, a signed letter from Deloitte & Touche addressed to the
Representatives and dated, respectively, the Effective Date, the date
of this Agreement and each such Closing Date, in form and substance
reasonably satisfactory to the Representatives, confirming that they
are independent accountants to the Company within the meaning of the
Securities Act and the Rules, that the response to Item 10 of the
Registration Statement is correct insofar as it relates to them and
stating that:
(i) in their opinion the audited
financial statements and financial statement schedules
included 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 Securities
Act and the Rules;
(ii) on the basis of a reading of the
amounts included in the Registration Statement and the
Prospectus under the headings "Summary Financial and Other
Data" and "Selected Financial Data," carrying out certain
procedures (but not an examination in accordance with
generally accepted auditing standards) 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 and Other Data," and "Selected Financial
Data" included in the Registration Statement and the
Prospectus do not agree with the corresponding
amounts in the audited or unaudited 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
change in the capital stock of the Company, increase
in the long-term debt of the Company or any decreases
in net income or in stockholders' equity in the
Company, as compared with the amounts shown on the
Company's audited balance sheet for the fiscal year
ended December 31, 1996 included in the Registration
Statement; and
(iii) they have performed certain other
procedures as may be permitted under generally acceptable
auditing standards as a result of which they determined that
certain 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
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and the Prospectus and reasonably specified by the
Representatives agrees with the accounting records of the
Company; and
(iv) based upon the procedures set forth in
clauses (ii) and (iii) above and a reading of the amounts
included in the Registration Statement under the headings
"Summary Financial and Other Data" and "Selected Financial
Data" included in the Registration Statement and Prospectus
and a reading of the financial statements, from which certain
of such data were derived, nothing has come to their attention
that gives them reason to believe that the "Summary Financial
and Other Data" and "Selected Financial Data" included in the
Registration Statement and Prospectus do not comply as to the
form in all material respects with the applicable accounting
requirements of the Securities Act and the Rules or that the
information set forth therein is not fairly stated in relation
to the financial statements included in the Registration
Statement or Prospectus from which certain of such data were
derived are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included in the Registration Statement and Prospectus.
References to the Registration Statement and the
Prospectus in this paragraph (e) are to such documents as
amended and supplemented at the date of the letter.
(g) The Representatives shall have received on
each Closing Date from Trenam, Kemker, Scharf, Barkin, Frye, X'Xxxxx &
Xxxxxx, counsel for the Company, an opinion, addressed to the
Representatives and dated such Closing Date, and stating in effect
that:
(i) Each of the Company and its
Subsidiaries has been duly organized and is validly existing
as a corporation in good standing under the laws of their
respective jurisdictions of organization. Each of the Company
and its Subsidiaries is duly qualified and in good standing as
a foreign corporation in each jurisdiction in which the
character or location of its assets or properties (owned,
leased or licensed) or the nature of its businesses makes such
qualification necessary, except for such jurisdictions where
the failure to so qualify would not have a Material Adverse
Effect.
(ii) Each of the Company and its
Subsidiaries has the corporate power and authority to own,
lease and license its assets and properties and conduct its
business as now being conducted and as described in the
Registration Statement and the Prospectus and with respect to
the Company, to enter into, deliver and perform this Agreement
and to issue and sell the Shares.
(iii) The Company has authorized, issued
and outstanding capital stock as set forth in the Registration
Statement and the Prospectus under the caption
"Capitalization"; the certificates evidencing the Shares are
in due and proper legal
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form and issuance by the Company; all of the issued and
outstanding shares of Common Stock of the Company have been
duly and validly authorized and issued and are fully paid and
nonassessable. There are no statutory preemptive or other
similar rights to subscribe for or to purchase or acquire any
shares of Common Stock of the Company or its Subsidiaries or
any such rights pursuant to the Company's Certificate of
Incorporation or by-laws or any agreement filed or required to
be filed as an exhibit to the Registration Statement. The
Shares when issued and sold pursuant to this Agreement will be
duly and validly authorized and issued, fully paid and
nonassessable and free and clear of all security interests,
liens, encumbrances, equities or claims. To the best of such
counsel's knowledge, except as disclosed in the Registration
Statement and the Prospectus, there is no outstanding option,
warrant or other right calling for the issuance of, and no
commitment, plan or arrangement to issue, any share of stock
of the Company or any of its Subsidiaries, or any security
convertible into, exercisable for, or exchangeable for stock
of the Company or any of its Subsidiaries. The issued and
outstanding shares of capital stock of each of the Company's
Subsidiaries have been duly authorized and validly authorized
and issued, are fully paid and nonassessable and are owned by
the Company or by another wholly owned subsidiary of the
Company, free and clear of any perfected security interest or,
to the knowledge of such counsel, any other security
interests, liens, encumbrances, equities or claims, other than
those described in the Registration Statement and the
Prospectus.
(iv) Each of the Lock-Up Agreements
executed by the Company's stockholders, directors and
executive officers has been duly and validly delivered by such
persons and constitutes the legal, valid and binding
obligation of each such person enforceable against each such
person in accordance with its terms, except as the
enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles.
(v) To such counsel's knowledge, no
holder of securities of the Company has rights, which have not
been waived, to the registration of shares of Common Stock or
other securities, as a result of the filing of the
Registration Statement by the Company or the offering
contemplated thereby.
(vi) All necessary corporate action has
been duly and validly taken by the Company to authorize the
execution, delivery and performance of this Agreement and the
issuance and sale of the Shares. This Agreement has been duly
and validly executed and delivered by the Company and this
Agreement constitutes the legal, valid and binding obligation
of the Company enforceable against the Company in accordance
with its terms except (A) as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles and (B)
to the extent that rights to indemnity or contribution
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under this Agreement may be limit Federal or state securities
laws or the public policy underlying such laws.
(vii) Neither the execution, delivery and
performance of this Agreement by the Company nor the
consummation of any of the transactions contemplated hereby
(including, without limitation, the issuance and sale by the
Company of the Shares) will (A) give rise to a right to
terminate or accelerate the due date of any payment due under,
or conflict with or result in the breach of any term or
provision of, or constitute a default (or any event which with
notice or lapse of time, or both, would constitute a default)
under, or require consent or waiver under (except those which
have been obtained), or result in the execution or imposition
of any lien, charge or encumbrance upon any properties or
assets of the Company or any of its Subsidiaries pursuant to
(1) the terms of any indenture, mortgagee, deed trust, note or
other agreement or instrument of which such counsel is aware
and to which the Company or any of its Subsidiaries is a party
by which it or any of its properties or businesses is bound or
(2) any franchise, license, permit, judgment, decree, order,
statute, rule or regulation of which such counsel is aware or
(B) violate any provision of the Certificate of Incorporation,
by-laws or other organizational document of the Company or any
of its Subsidiaries.
(viii) To the best of such counsel's
knowledge, no default exists, and no event has occurred which
with notice or lapse of time, or both, would constitute a
default, in the due performance and observance of any term,
covenant or condition by the Company of any indenture,
mortgage, deed of trust, note or any other agreement or
instrument to which the Company is a party or by which it or
any of its assets or properties or businesses may be bound or
affected.
(ix) None of the Company or its
Subsidiaries is in violation of (A) to such counsel's
knowledge, any franchise, license, permit, judgment, decree,
order, statute, rule or regulation or (B) any term or
provision of its Certificate of Incorporation or by-laws.
(x) No consent, approval, authorization
or order of any court or governmental or regulatory body is
required for the execution, delivery or performance of this
Agreement by the Company or the consummation of the
transactions contemplated hereby or thereby, except such as
have been obtained under the Securities Act and such as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the
several Underwriters.
(xi) To such counsel's knowledge, there
is no action, suit or proceeding before any court or
governmental agency or body, domestic or foreign, pending or
threatened against, or involving the assets, properties or
businesses of,
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the Company or its Subsidiaries or their respective directors
or officers which is required to be described in the
Registration Statement which is not so described.
(xii) The statements in the Prospectus
under the captions "Description of Capital Stock,"
"____________" and "____________" insofar as such statements
constitute a summary of documents referred to therein or
matters of law, are fair summaries in all material respects
and accurately present the information called for with respect
to such documents and matters. All documents, contracts and
other agreements required to be filed as exhibits to or,
described in, the Registration Statement have been so filed
with the Commission or are fairly described in the
Registration Statement, as the case may be.
(xiii) The Registration Statement, all
preliminary prospectuses and the Prospectus and each amendment
or supplement thereto (except for the financial statements and
schedules and other financial and statistical data derived
therefrom included therein or omitted therefrom, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act
and the Rules.
(xiv) The Registration Statement is
effective under the Securities Act, and no stop order
suspending the effectiveness of the Registration Statement or
suspending or preventing the use of the Prospectus has been
issued and to such counsel's knowledge no proceedings for that
purpose have been instituted or are threatened under the
Securities Act; any required filing of the Prospectus and any
supplement thereto pursuant to Rule 424(b) of the Rules has
been made in the manner and within the time period required by
such Rule 424(b).
(xv) The Shares have been authorized for
listing on Nasdaq.
(xvi) The capital stock of the Company
conforms in all material respects to the description thereof
contained in the Prospectus under the caption "Description of
Capital Stock."
(xvii) The Company is not an "investment
company" or an entity "controlled" by an "investment company"
as such terms are defined in the Investment Company Act of
1940, as amended.
To the extent deemed advisable by such counsel, they may rely
as to matters of fact on certificates of responsible officers of the Company
and public officials and on the opinions of other counsel satisfactory to the
Representatives as to matters which are governed by laws other than the laws of
the States of Florida and Delaware or the Federal laws of the United States;
provided that such counsel shall state that in their opinion the Underwriters
and they are justified in relying on such other opinions. Copies of such
certificates and other opinions shall be furnished to the Representatives and
counsel for the Underwriters
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In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the Representatives and representatives of the
independent public accountants of the Company, at which conferences the
contents of the Registration Statement and the Prospectus and related matters
were discussed. While such counsel has not undertaken to independently verify
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, 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 (except with respect to the financial statements and notes and
schedules thereto and other financial data, as to which such counsel need
express no belief) contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus as amended or
supplemented (except with respect to the financial statements and notes
schedules thereto and other financial data, as to which such counsel need make
no statement) on the date thereof and the date of such opinion 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.
(h) The Representatives shall have received on
each Closing Date from Hunton & Xxxxxxxx, special counsel for the
Company, an opinion, addressed to the Representatives and dated such
Closing Date, and stating in effect that:
(i) (A) Each of the Company and its
Subsidiaries is in compliance in all material respects with
any and all applicable Environmental Laws; (B) none of the
Company or its Subsidiaries has received any notice from any
governmental authority or third party of an asserted claim
under any Environmental Law; (C) each of the Company and its
Subsidiaries has received all permits, licenses or other
approvals required of it under applicable Environmental Laws
to conduct its business and is in compliance with all terms
and conditions of any such permit, license or approval, except
where such failure to receive required permits, licenses or
other approvals or failure to comply with the terms and
conditions of such permits, licenses or other approvals would
not, singly or in the aggregate, have a Material Adverse
Effect; and (D) no property which is or has been owned, leased
or occupied by the Company or its Subsidiaries has been
designated as a Superfund site pursuant to the Comprehensive
Environmental Response, Compensation of Liability Act of 1980,
as amended (42 U.S.C. Section 9601, et seq.), or otherwise
designated as a contaminated site under applicable state or
local law.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the Representatives and representatives of the
independent public accountants of the Company, at which conferences the
contents of the Registration Statement and the Prospectus as they related to
the matters set forth in the foregoing opinion were discussed. While such
counsel has not
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undertaken to independently verify 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, no facts have come to the attention of
such counsel with respect to the matters set forth in the foregoing opinion
which lead such counsel to believe that the Registration Statement at the time
it became effective (except with respect to the financial statements and notes
and schedules thereto and other financial data, as to which such counsel need
express no belief) contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus as amended or
supplemented (except with respect to the financial statements and notes
schedules thereto and other financial data, as to which such counsel need make
no statement) on the date thereof and the date of such opinion 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.
(i) The Representatives shall have received on
the Firm Shares Closing Date from ___________________, counsel for the
Selling Stockholder, an opinion, addressed to the Representatives and
dated such Closing Date, and stating in effect that:
(i) This Agreement has been duly and
validly executed and delivered by or on behalf of the Selling
Stockholder.
(ii) This Agreement, the Custody
Agreement, the Power of Attorney and the Lock-Up Agreement
each constitute the legal, valid and binding obligation of the
Selling Stockholder enforceable against the Selling
Stockholder in accordance with their respective terms except
(A) as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles and (B) to the
extent that rights to indemnity or contribution under this
Agreement may be limited by Federal or state securities laws
or the public policy underlying such laws; and the Selling
Stockholder has full legal right and authority to enter into
this Agreement and to sell, transfer and deliver in the manner
provided in this Agreement, the Shares to be sold by the
Selling Stockholder hereunder.
(iii) The transfer and sale by the Selling
Stockholder of the Shares to be sold by the Selling
Stockholder as contemplated by this Agreement will not
conflict with, result in a breach of, or constitute a default
under any agreement or instrument known to such counsel to
which the Selling Stockholder is a party or by which the
Selling Stockholder or any of its properties may be bound, or
any franchise, license, permit, judgment, decree, order,
statute, rule or regulation.
(iv) All of the Selling Stockholder's
rights in the Shares to be sold by the Selling Stockholder
pursuant to this Agreement, have been transferred to the
Underwriters who have severally purchased such Shares pursuant
to this
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Agreement, free and clear of adverse claims, assuming
for purposes of this opinion that the Underwriters purchased
the same in good faith without notice of any adverse claims.
(v) No consent, approval, authorization,
license, certificate, permit or order of any court,
governmental or regulatory agency, authority or body or
financial institution is required in connection with the
performance of this Agreement by the Selling Stockholder or
the consummation of the transactions contemplated hereby,
including the delivery and sale of the Shares to be delivered
and sold by the Selling Stockholder, except such as may be
required under state securities or blue sky laws in connection
with the purchase and distribution of the Shares by the
several Underwriters.
To the extent deemed advisable by such counsel, they may rely
as to matters of fact on certificates of the Selling Stockholder and on the
opinions of other counsel satisfactory to the Representatives as to matters
which are governed by laws other than the laws of the States of Florida and
Delaware or the Federal laws of the United States; provided that such counsel
shall state that in their opinion the Underwriters and they are justified in
relying on such other opinions. Copies of such certificates and other opinions
shall be furnished to the Representatives and counsel for the Underwriters
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the Representatives and representatives of the
independent public accountants of the Company, at which conferences the
contents of the Registration Statement and the Prospectus and related matters
were discussed. While such counsel has not undertaken to independently verify
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, 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 (except with respect to the financial statements and notes and
schedules thereto and other financial data, as to which such counsel need
express no belief) contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus as amended or
supplemented (except with respect to the financial statements and notes
schedules thereto and other financial data, as to which such counsel need make
no statement) on the date thereof and the date of such opinion 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.
(j) All proceedings taken in connection with the
sale of the Firm Shares and the Option Shares as herein contemplated
shall be reasonably satisfactory in form and substance to the
Representatives and their counsel and the Underwriters shall have
received from Xxxxxx & Xxxxx, counsel for the Underwriters, an
opinion, addressed to the Representatives and dated such Closing Date,
with respect to the Shares, the Registration
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Statement and the Prospectus, and such other related matters, as
the Representatives may reasonably request, and the Company shall have
furnished to Xxxxxx & Xxxxx such documents is they may reasonably
request for the purpose of enabling them to pass upon such matters.
(k) The Representatives shall have received
copies of the Lock-up Agreements executed by each entity or person
described in Section 4(m).
(l) If the Shares have been qualified for sale in
Florida, the Representatives shall have received on each Closing Date
certificates, addressed to the Representatives, and dated such Closing
Date, of an executive officer of the Company, acting solely in his
capacity as an executive officer of the Company, to the effect that
the signer of such certificate has reviewed and understands the
provisions of Section 517.075 of the Florida Statutes, and represents
that, to his knowledge after due inquiry, the Company has complied,
and at all times will comply, with all provisions of Section 517.075
and further, that as of such Closing Date, neither the Company nor any
of its affiliates does business with the government of Cuba or with
any person or affiliate located in Cuba.
(m) The Company and the Selling Stockholder shall
have furnished or caused to be furnished to the Representatives such
further certificates and documents as the Representatives shall have
reasonably requested.
7. Covenants of the Company. (a) The Company covenants
and agrees with the several Underwriters as follows:
(i) The Company shall prepare the Prospectus in a
form approved by the Representatives and file such Prospectus
pursuant to Rule 424(b) under the Securities Act not later than the
Commission's close of business on the second business day following
the execution and delivery of this Agreement, or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) or Rule 434 under
the Securities Act.
(ii) The Company shall promptly advise the
Representatives (i) when any amendment to the Registration Statement
shall have become effective, (ii) of any request by the Commission for
any amendment of the Registration Statement or the Prospectus or for
any additional information, (iii) of the prevention or suspension of
the use of any preliminary prospectus or the Prospectus or of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (iv) of the receipt
by the Company of any notification with respect to the suspension the
qualification of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company shall not file any amendment of the Registration Statement or
supplement to the Prospectus unless the Company has furnished the
Representatives a copy for its 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
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issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(iii) If, at any time when a prospectus relating to
the Shares is required to be delivered under the Securities Act and
the Rules, any event occurs as a result of which the Prospectus as
then amended or supplemented would include any untrue statement of
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 Securities Act or the
Rules, the Company promptly shall prepare and file with the
Commission, subject to the second sentence of paragraph (ii) of this
Section 6(a) an amendment or supplements which shall correct such
statement or omission or in amendment which shall effect such
compliance.
(iv) 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 occurs (or 90 days if such 12-month
period coincides with the Company's fiscal year), an earning 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
Securities Act or Rule 158 of the Rules.
(v) The Company shall furnish to the
Representatives and counsel for the Underwriters, without charge,
signed copies of the Registration Statement (including all exhibits
thereto and amendments thereof) and to each other Underwriter a copy
of the Registration Statement (without exhibits thereto) and all
amendments thereof and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Securities Act or the
Rules, as many copies of any preliminary prospectus and the Prospectus
and amendments thereof and supplements thereto as the Representatives
may reasonably request.
(vi) In the event it becomes necessary to qualify
the Shares for sale in various states, the Company shall cooperate
with the Representatives and their counsel in endeavoring to qualify
the Shares for offer and sale in connection with this offering under
the state Blue Sky laws of such jurisdictions as the Representatives
may 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.
(vii) For a period of five years after the date of
this Agreement, the Company shall supply to 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
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class of its capital stock and to furnish to the Representatives a
copy of each annual or other report it shall be required to
file with the Commission (including the Report on Form SR required by
Rule 463 of the Rules).
(viii) Without the prior written consent of
Xxxxxxxxxxx & Co., Inc., for a period of 180 days after the date of
this Agreement, the Company and each of its individual directors and
executive officers shall not offer for sale, sell, contract to sell,
distribute, transfer, grant any option for the sale of, or otherwise
dispose of, directly or indirectly (other than on Form S-8 or on the
successor form), or exercise any registration rights with respect to,
any equity securities of the Company (or any securities convertible
into, exercisable for or exchangeable for equity securities of the
Company), except for the issuance of the Shares pursuant to the
Registration Statement and the issuance of options pursuant to the
Company's [Stock Option Plan] as described in the Registration
Statement and the Prospectus. In the event that during this period,
(i) any options are issued pursuant to the Company's [Stock Option
Plan] that are exercisable during such 180-day period or (ii) any
registration is effected on Form S-8 or on any successor form relating
to options that are exercisable during such 180-day period, the
Company shall obtain the written agreement of such grantee or holder
of such registered securities that, for a period of 180 days after the
date of this Agreement, such person will not, without the prior
written consent of Xxxxxxxxxxx & Co., Inc., offer for sale, sell,
distribute, grant any option for the sale of, or otherwise dispose of,
directly or indirectly, or exercise any registration rights with
respect to, any shares of Common Stock (or any securities convertible
into, exercisable for, or exchangeable for any shares of Common Stock)
owned by such person.
(ix) On or before completion of this offering, the
Company shall make all filings required under applicable securities
laws and by the NASDAQ National Market (including any required
registration under the Exchange Act.
(x) The Company shall file timely and accurate
reports in accordance with the provisions of Florida Statutes Section
517.05, or any successor provision, and any regulation promulgated
thereunder, if at any time after the Effective Date, the Company or
any of its affiliates commences engaging in business with the
government of Cuba or any person or affiliate located in Cuba.
(xi) The Company will apply the net proceeds from
the offering of the Shares in the manner set forth under "Use of
Proceeds" in the Prospectus.
(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 incident to
the public offering of the Shares and the performance of the obligations of the
Company under this Agreement 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 the
printing, filing and distribution of this Agreement; (ii) the preparation and
delivery of certificates for the Shares to the Representatives
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and 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 reasonable 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 reasonable
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 NASD in connection with its review of the terms of the public offering and
reasonable fees and disbursements of counsel for the Underwriters in connection
with such review; (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) the 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 to
the Underwriters. Subject to the provisions of Section 9, the Underwriters
agree to pay, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses incident to
the performance of the obligations of the Underwriters under this Agreement not
payable by the Company pursuant to the preceding sentence, including, without
limitation, the fees and disbursements of counsel for the Underwriters.
8. Indemnification.
(a) The Company and the Selling Stockholder
agree, jointly and severally, to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities 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
Securities 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 to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading; or (ii) any breach of the representations
and warranties set forth in Section 4 hereof, provided, however, that
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
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furnished in writing to the Company by the Representatives on behalf
of any Underwriter specifically for use therein. Notwithstanding the
foregoing, the liability of the Selling Stockholder pursuant to the
provisions of this Section 8(a) shall be limited to an amount equal to
the aggregate net proceeds received by such Selling Stockholder from
the sale of the Shares sold by the Selling Stockholder hereunder.
This indemnity agreement will be in addition to any liability which
the Company and the Selling Stockholder may otherwise have.
(b) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, the Selling
Stockholder, each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, each director of the Company, and each officer of the
Company who signs the Registration Statement, to the same extent as
the foregoing indemnity from the Company or the Selling Stockholder 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, the Registration Statement or the Prospectus,
or any amendment thereof or supplement thereto, contained in the last
paragraph of the cover page, in the paragraph relating to
stabilization on the inside front cover page of the Prospectus and the
statements contained under the caption "Underwriting" in the
Prospectus; provided, however, that the obligation of each Underwriter
to indemnify the Company or the Selling Stockholder (including any
controlling person, director or officer thereof), as the case may be,
shall be limited to the net proceeds received by the Company from such
Underwriter.
(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 8(a) or 8(b) shall be available to any party
who shall fail to give notice as provided in this Section 8(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.
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27
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 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 which consent shall not be
unreasonably withheld.
9. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnification provided
for in Section 8(a) or 8(b) is due in accordance with its terms but for any
reason is held to be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b), then each indemnifying party
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 any person entitled hereunder to contribution from any persons who
may be liable for contribution) to which the indemnified party may be subject
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Selling Stockholder 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 8
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 Stockholder 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 Stockholder 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
Stockholder, as set forth in the table on the cover page of the Prospectus,
bear to (y) the underwriting discounts 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 Stockholder or 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 Stockholder 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 Stockholder and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 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 9, (i) in no case shall any Underwriter
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(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) the Company shall be
liable and responsible for any amount in excess of such underwriting discount;
and (iii) in no case shall the Selling Stockholder be liable and responsible
for any amount in excess of the aggregate net proceeds of the sale of Shares
received by the Selling Stockholder hereunder; provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of Section
II(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 9, each person, if any, who controls an Underwriter within the meaning
of Section 15 of the Securities 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
Securities 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) and (ii) in the immediately preceding sentences of
this Section 9. 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 Underwriter's obligations to
contribute pursuant to this Section 9 are several in proportion to their
respective underwriting commitments and not joint.
10. Termination. This Agreement may be terminated with
respect to the Shares to be purchased on a Closing Date by the Representatives
by notifying the Company and the Selling Stockholder at any time:
(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
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 than 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
is 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. or Nasdaq 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 NASD or
any other governmental or regulatory authority; or (v) if a banking
moratorium has been declared by any state or Federal authority, or
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(b) at or before any Closing Date, that any of
the conditions specified in Section 6 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 Stockholder shall be under any
liability to any Underwriter, and no Underwriter shall be under any liability
to the Company, 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 Stockholder to comply with
the terms or to fulfill any of the conditions of this Agreement, the Company
will reimburse the Underwriters for all out-of-pocket expenses (including the
reasonable 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, the Selling Stockholder or to the other
Underwriters for damages occasioned by its failure or refusal.
11. 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 10) 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
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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 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 or the Selling Stockholder, and without liability on
the part of the Company or the Selling Stockholder, except in both cases as
provided in Sections 7(b), 8, 9 and 10. The provisions of this Section shall
not in any way affect the liability of any defaulting Underwriter to the
Company or the nondefaulting Underwriters arising out of such default. A
substitute underwriter hereunder shall become an Underwriter for all purposes
of this Agreement.
12. Miscellaneous. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers, of the Selling Stockholder 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 Stockholder or any of the officers, directors or
controlling persons referred to in Sections 8 and 9 hereof, and shall survive
delivery of and payment for the Shares. The provisions of Sections 7(b), 8, 9
and 10 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 Stockholder 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 telephone or telegraph if subsequently confirmed
in writing, (a) if to the Representatives, c/o Oppenheimer & Co., Inc.,
Xxxxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention:
____________________, with a copy to G. Xxxxx Xxxxxxx, Xxxxxx & Xxxxx, 000 Xxxx
Xxxxxx, Xxx Xxxx, XX 00000, facsimile (000) 000-0000; (b) if to the Company, to
its agent for service as such agent's address appears on the cover page of the
Registration Statement, with a copy to ______________________________________;
and (c) if to the Selling Stockholder to:____________________________________,
with a copy to:_________________________________________.
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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.
Please confirm that the foregoing correctly sets forth the agreement
among us.
Very truly yours,
JLM INDUSTRIES, INC.
By
--------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
--------------------------------------
Xxxx X. Xxxxxxxxx
Confirmed:
XXXXXXXXXXX & CO., INC.
X.X. XXXXXXX & SONS, INC.
Acting severally on behalf of themselves
and as representatives of the several
Underwriters named in Schedule I annexed
hereto.
By XXXXXXXXXXX & CO., INC.
By
--------------------------------------
Name:
Title:
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SCHEDULE I
Number of Firm Shares Number of Firm Shares Total Number of
to be Purchased from to be Purchased from Firm Shares to be
Name the Company the Selling Stockholder Purchased
---- ----------- ----------------------- ----------
Xxxxxxxxxxx & Co., Inc.
X.X. Xxxxxxx & Sons, Inc.
--------------
Total
==============
32
