MEDLEY CREDIT ACCEPTANCE CORP.
1,600,000 SHARES OF COMMON STOCK AND
REDEEMABLE WARRANTS TO PURCHASE
1,600,000 SHARES OF COMMON STOCK
UNDERWRITING AGREEMENT
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June ( ), 1997
PCM SECURITIES LIMITED, L.P.
00 Xxx Xxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies/Gentlemen:
Medley Credit Acceptance Corp., a Delaware corporation (the
"Company"), hereby confirms its agreement with PCM Securities
Limited, L.P. (the "Underwriter") and, for purposes of Section 8
hereof only, Xxx Xxxxxxxxxx & Co., Inc. (the "Qualified
Independent Underwriter"; the Underwriter and the Qualified
Independent Underwriter are sometimes hereinafter referred to
collectively as the Underwriter), as follows:
1. Description of Shares. Subject to the immediately
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following paragraph, the Company proposes to issue and sell
through the Underwriter, as agent for the Company, a minimum of
1,200,000 shares of its authorized and unissued Common Stock, par
value $.01 per share ("Common Stock"), and redeemable warrants to
purchase a minimum of 1,200,000 shares of Common Stock (the
"Warrants"), on a best efforts, all or none basis (the "Minimum
Offering"), and a maximum of 1,600,000 shares of Common Stock and
Warrants to purchase 1,600,000 shares of Common Stock (the
"Maximum Offering"). The shares of Common Stock and Warrants in
excess of the Minimum Offering will be offered on a best efforts
basis.
Of the shares of Common Stock being offered, 1,000,000
shares (in the event of the Minimum Offering and 1,400,000 shares
in the event of the Maximum Offering) are being offered directly
by the Company and 200,000 shares are being offered directly by
Medley Group, Inc., the Company's parent ("Group"). The Company
is assuming all obligations, responsibilities and potential
liabilities of Group hereunder.
The Common Stock, the Warrants, and the shares of
Common Stock underlying the Warrants (the "Warrant Shares", are
sometimes hereinafter collectively called the "Securities").
2. Representations, Warranties and Agreements of the
-------------------------------------------------
Company.
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The Company represents and warrants to and agrees with
the Underwriter that:
(a) A registration statement on Form SB-2 (File No.
333-24937) with respect to the Securities, including a prospectus
(subject to completion), has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933,
as amended (the "Act"), and the applicable rules and regulations
(the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") under the Act and has been filed
with the Commission and such amendments to such registration
statement, and such amended prospectuses (subject to completion)
as may have been required prior to the date hereof have been
similarly prepared and filed with the Commission; and the Company
will file such additional amendments to such registration
statement, and such amended prospectuses as may hereafter be
required. Copies of such registration statement and amendments,
of each related prospectus (subject to completion) (the
"Preliminary Prospectuses"), including all documents incorporated
by reference therein, have been delivered to you. The Company
and the transactions contemplated by this Agreement meet the
requirements for using Form SB-2 under the Act.
If the registration statement relating to the
Securities has been declared effective under the Act by the
Commission, the Company will prepare and promptly file with the
Commission any information omitted from the registration
statement pursuant to Rule 430A(a) and Rule 424(b) of the Rules
and Regulations or as part of a post-effective amendment to the
registration statement (including a final form of prospectus).
If the registration statement relating to the Securities has not
been declared effective under the Act by the Commission, the
Company will prepare and promptly file an amendment to the
registration statement, including a final form of prospectus.
The term "Registration Statement" as used in this Agreement shall
mean such registration statement, including financial statements,
schedules and exhibits, in the form in which it became or
becomes, as the case may be, effective (including, if the Company
omitted information from the registration statement pursuant to
Rule 430A(a), the information deemed to be a part of the
registration statement at the time it became effective pursuant
to Rule 430A(b) of the Rules and Regulations) and, in the event
of any amendment thereto after the effective date of such
registration statement, shall also mean (from and after the
effectiveness of such amendment such registration statement as so
amended. The term "Prospectus" as used in this Agreement shall
mean the prospectus relating to the Securities as included in
such Registration Statement at the time it becomes effective
(including, if the Company omitted information from the
Registration Statement pursuant to Rule 430A(a) of the Rules and
Regulations, the information deemed to be a part of the
Registration Statement at the time it became effective pursuant
to Rule 430A(b) of the Rules and Regulations). Notwithstanding
the foregoing, if any revised prospectus shall be provided to the
Underwriter by the Company for use in connection with the
offering of the Securities that differs from the prospectus
referred to in the immediately preceding sentence (whether or not
such revised prospectus is required to be filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations),
the term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to the Underwriters for
such use. Any reference to the Registration Statement or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein as of the date of the
Registration Statement or the Prospectus, as the case may be, and
any reference to any amendment or supplement to the Registration
Statement or the Prospectus shall be deemed to refer to and
include any documents filed after such date under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), which,
upon filing, are incorporated by reference therein. As used in
this Agreement, the term "Incorporated Documents" means the
documents which at the time are incorporated by reference in the
Registration Statement, the Prospectus or any amendment or
supplement thereto.
(b) The Commission has not issued any order preventing
or suspending the use of any Preliminary Prospectus or instituted
proceedings for that purpose, and each such Preliminary
Prospectus has conformed in all material respects to the
requirements of the Act and the Rules and Regulations and, as of
its date, has not included any untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and at the time the Registration
Statement became or becomes, as the case may be, effective and at
all times subsequent thereto up to and on the Closing Date
(hereinafter defined) (i) the Registration Statement and the
Prospectus, and any amendments or supplements thereto, contained
and will contain all material information required to be included
therein by the Act and the Rules and Regulations and will in all
material respects conform to the requirements of the Act and the
Rules and Regulations, (ii) the Registration Statement, and any
amendments or supplements thereto, did not and will not include
any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, and (iii) the Prospectus,
and any amendments or supplements thereto, did not and will not
include any untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that none of the representations
and warranties contained in this subparagraph (b) shall apply to
information contained in or omitted from the Registration
Statement or Prospectus, or any amendment or supplement thereto,
in reliance upon, and in conformity with, written information
relating to any Underwriter furnished to the Company by such
Underwriter specifically for use in the preparation thereof.
The Incorporated Documents heretofore filed, when
they were filed (or, if any amendment with respect to any such
document was filed, when such amendment was filed), conformed in
all material respects with the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder; any
further Incorporated Documents so filed will, when they are
filed, conform in all material respects with the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder; no such document when it was filed (or, if an
amendment with respect to any such document was filed, when such
amendment was filed), 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; and no such further amendment will contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(c) Each of the Company and its affiliates has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation with full power and authority (corporate and other)
to own, lease and operate its properties and conduct its business
as described in the Prospectus; each of the Company and its
affiliates is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which
the ownership or leasing of its properties or the conduct of its
business requires such qualification, except where the failure to
be so qualified or be in good standing would not have a material
adverse effect on the condition (financial or otherwise),
earnings, operations, business or business prospects of the
Company; no proceeding has been instituted in any such
jurisdiction, revoking, limiting or curtailing, or seeking to
revoke, limit or curtail, such power and authority or
qualification; each of the Company or its affiliates is in
possession of and operating in compliance with all
authorizations, licenses, certificates, consents, orders and
permits from state, federal and other regulatory authorities
which are material to the conduct of its business, all of which
are valid and in full force and effect; neither the Company nor
any of its affiliates is in violation of its respective charter
or bylaws or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained
in any material bond, debenture, note or other evidence of
indebtedness, or in any material lease, contract, indenture,
mortgage, deed of trust, loan agreement, joint venture or other
agreement or instrument to which the Company or any of its
affiliates is a party or by which it or any of its affiliates or
their respective properties may be bound; and neither the Company
nor any of its affiliates is in material violation of any law,
order, rule, regulation, writ, injunction, judgment or decree of
any court, government or governmental agency or body, domestic or
foreign, having jurisdiction over the Company or any of its
affiliates or over their respective properties of which it has
knowledge. Except as set forth in the Prospectus, the Company
does not own or control, directly or indirectly, any corporation,
association or other entity.
(d) The Company has full legal right, power and
authority to enter into this Agreement and perform the
transactions contemplated hereby. This Agreement has been duly
authorized, executed and delivered by the Company and is a valid
and binding agreement on the part of the Company, enforceable in
accordance with its terms, except as rights to indemnification
hereunder may be limited by applicable law and except as the
enforcement hereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by
general equitable principles; the performance of this Agreement
and the consummation of the transactions herein contemplated will
not result in a material breach or violation of any of the terms
and provisions of, or constitute a default under, (i) any bond,
debenture, note or other evidence of indebtedness, or under any
lease, contract, indenture, mortgage, deed of trust, loan
agreement, joint venture or other agreement or instrument to
which the Company or any of its affiliates is a party or by which
it or any of its affiliates or their respective properties may be
bound, (ii) the charter or bylaws of the Company or any of its
affiliates, or (iii) any law, order, rule, regulation, writ,
injunction, judgment or decree of any court, government or
governmental agency or body, domestic or foreign, having
jurisdiction over the Company or any of its affiliates or over
their respective properties. No consent, approval, authorization
or order of or qualification with any court, government or
governmental agency or body, domestic or foreign, having
jurisdiction over the Company or any of its affiliates or over
their respective properties is required for the execution and
delivery of this Agreement and the consummation by the Company or
any of its affiliates of the transactions herein contemplated,
except such as may be required under the Act, the Exchange Act or
under state or other securities or blue sky laws, all of which
requirements have been satisfied in all material respects.
(e) There is not any pending or, to the best of the
Company's knowledge, threatened action, suit, claim or proceeding
against the Company, any of its affiliates or any of their
respective officers or any of their respective properties, assets
or rights before any court, government or governmental agency or
body, domestic or foreign, having jurisdiction over the Company
or any of its subsidiaries or over their respective officers or
properties or otherwise which (i) might result in any material
adverse change in the condition (financial or otherwise),
earnings, operations, business or business prospects of the
Company and its affiliates considered as one enterprise or might
materially and adversely affect their properties, assets or
rights, (ii) might prevent consummation of the transactions
contemplated hereby or (iii) is required to be disclosed in the
Registration Statement or Prospectus and is not so disclosed; and
there are no agreements, contracts, leases or documents of the
Company or any of its subsidiaries of a character required to be
described or referred to in the Registration Statement or
Prospectus or any Incorporated Document or to be filed as an
exhibit to the Registration Statement or any Incorporated
Document by the Act or the Rules and Regulations or by the
Exchange Act or the rules and regulations of the Commission
thereunder which have not been accurately described in all
material respects in the Registration Statement or Prospectus or
any Incorporated Document or filed as exhibits to the
Registration Statement or any Incorporated Document.
(f) All outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are
fully paid and nonassessable, have been issued in compliance with
all federal and state securities laws, were not issued in
violation of or subject to any preemptive rights or other rights
to subscribe for or purchase securities, and the authorized and
outstanding capital stock of the Company is as set forth in the
Prospectus under the caption "Capitalization" and conforms in all
material respects to the statements relating thereto contained in
the Registration Statement and the Prospectus and any
Incorporated Document (and such statements correctly state the
substance of the instruments defining the capitalization of the
Company); the Common Stock and the Warrants have been duly
authorized for issuance and sale through the Underwriter pursuant
to this Agreement and, when issued and delivered by the Company
(or Group, with respect to its 200,000 shares) against payment
therefor in accordance with the terms of this Agreement, will be
duly and validly issued and fully paid and nonassessable, and
will be sold free and clear of any pledge, lien, security
interest, encumbrance, claim or equitable interest; and no
preemptive right, co-sale right, registration right, right of
first refusal or other similar right of shareholders exists with
respect to any of the Common Stock or Warrants or the issuance
and sale thereof other than those that have been expressly waived
prior to the date hereof and those that will automatically expire
upon and will not apply to the consummation of the transactions
contemplated on the Closing Date. No further approval or
authorization of any shareholder, the Board of Directors of the
Company or others is required for the issuance and sale or
transfer of the Securities except as may be required under the
Act, the Exchange Act or under state or other securities or blue
sky laws. Except as disclosed in the Prospectus and the
financial statements of the Company and the related notes thereto
included or incorporated by reference in the Prospectus, neither
the Company nor any affiliate has outstanding any options to
purchase, or any preemptive rights or other rights to subscribe
for or to purchase, any securities or obligations convertible
into, or any contracts or commitments to issue or sell, shares of
its capital stock or any such options, rights, convertible
securities or obligations. The description of the Company's
stock option, stock bonus and other stock plans or arrangements,
and the options or other rights granted and exercised thereunder,
set forth or incorporated by reference in the Prospectus
accurately and fairly presents the information required to be
shown with respect to such plans, arrangements, options and
rights.
(g) Daszkal, Xxxxxx & Xxxxxx and Xxxxxxxxx, Xxxxxxxx &
Co. which have examined the financial statements of the Company,
together with the related schedules and notes, as of December 31,
1996 and 1995, respectively, filed with the Commission as a part
of or incorporated by reference into the Registration Statement,
which are included or incorporated by reference in the
Prospectus, are independent accountants within the meaning of the
Act and the Rules and Regulations; the audited consolidated
financial statements of the Company, together with the related
schedules and notes, and the unaudited consolidated financial
information, forming part of the Registration Statement and
Prospectus, fairly present the financial position and the results
of operations of the Company and its subsidiaries at the
respective dates and for the respective periods to which they
apply; and all audited consolidated financial statements of the
Company, together with the related schedules and notes, and the
unaudited consolidated financial information, filed with the
Commission as part of or incorporated by reference into the
Registration Statement, have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved except as may be otherwise stated
therein. The selected and summary financial and statistical data
included in the Registration Statement present fairly the
information shown therein and have been compiled on a basis
consistent with the audited financial statements presented
therein. Except as set forth in the Prospectus, no other
financial statements or schedules are required to be included in
the Registration Statement.
(h) Subsequent to the respective dates as of which
information is given in the Registration Statement and
Prospectus, there has not been (i) any material adverse change in
the condition (financial or otherwise), earnings, operations,
business or business prospects of the Company, (ii) any
transaction that is material to the Company, except transactions
entered into in the ordinary course of business, (iii) any
obligation, direct or contingent, that is material to the
Company, incurred by the Company, except obligations incurred in
the ordinary course of business, (iv) any change in the capital
stock or outstanding indebtedness of the Company that is material
to the Company, (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company, or
(vi) any loss or damage (whether or not insured) to the property
of the Company which has been sustained or will have been
sustained which has a material adverse effect on the condition
(financial or otherwise), earnings, operations, business or
business prospects of the Company.
(i) Except as set forth in the Registration Statement
and Prospectus and any Incorporated Document, (i) the Company has
good and marketable title to all properties and assets described
in the Registration Statement and Prospectus and any Incorporated
Document as owned by it, free and clear of any pledge, lien,
security interest, encumbrance, claim or equitable interest,
other than such as would not have a material adverse effect on
the condition (financial or otherwise), earnings, operations,
business or business prospects of the Company, (ii) the
agreements to which the Company is a party described in the
Registration Statement and Prospectus and any Incorporated
Document are valid agreements, enforceable by the Company (as
applicable), except as the enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights
generally or by general equitable principles and, to the best of
the Company's knowledge, the other contracting party or parties
thereto are not in material breach or material default under any
of such agreements, and (iii) the Company has valid and
enforceable leases for all properties described in the
Registration Statement and Prospectus and any Incorporated
Document as leased by it, except as the enforcement thereof may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
Except as set forth in the Registration Statement and Prospectus
and any Incorporated Document, the Company owns or leases all
such properties as are necessary to its operations as now
conducted or as proposed to be conducted.
(j) The Company has timely filed all necessary
federal, state and foreign income and franchise tax returns and
has paid all taxes shown thereon as due, and there is no tax
deficiency that has been or, to the best of the Company's
knowledge, might be asserted against the Company that might have
a material adverse effect on the condition (financial or
otherwise), earnings, operations, business or business prospects
of the Company; and all tax liabilities are adequately provided
for on the books of the Company.
(k) The Company maintains insurance with insurers of
recognized financial responsibility of the types and in the
amounts generally deemed adequate for their respective businesses
and consistent with insurance coverage maintained by similar
companies in similar businesses, including, but not limited to,
insurance covering real and personal property owned or leased by
the Company against theft, damage, destruction, acts of vandalism
and all other risks customarily insured against, all of which
insurance is in full force and effect; the Company has not been
refused any insurance coverage sought or applied for; and the
Company has no 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 its business at a cost that would
not materially and adversely affect the condition (financial or
otherwise), earnings, operations, business or business prospects
of the Company.
(l) To the best of Company's knowledge, no labor
disturbance by the employees of the Company exists or is
imminent; and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its
principal suppliers, subassemblers, value added resellers,
subcontractors, original equipment manufacturers, authorized
dealers or international distributors that might be expected to
result in a material adverse change in the condition (financial
or otherwise), earnings, operations, business or business
prospects of the Company. No collective bargaining agreement
exists with any of the Company's employees and, to the best of
the Company's knowledge, no such agreement is imminent.
(m) The Company owns or possesses adequate rights to
use all patents, patent rights, inventions, trade secrets, know-
how, trademarks, service marks, trade names and copyrights which
are necessary to conduct its businesses as described in the
Registration Statement and Prospectus and any Incorporated
Document; the expiration of any patents, patent rights, trade
secrets, trademarks, service marks, trade names or copyrights
would not have a material adverse effect on the condition
(financial or otherwise), earnings, operations, business or
business prospects of the Company; the Company has not received
any notice of, and has no knowledge of, any infringement of or
conflict with asserted rights of the Company by others with
respect to any patent, patent rights, inventions, trade secrets,
know-how, trademarks, service marks, trade names or copyrights;
and the Company has not received any notice of, and has no
knowledge of, any infringement of or conflict with asserted
rights of others with respect to any patent, patent rights,
inventions, trade secrets, know-how, trademarks, service marks,
trade names or copyrights which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, might
have a material adverse effect on the condition (financial or
otherwise), earnings, operations, business or business prospects
of the Company.
(n) The Company has filed an application for
registration of the Common Stock and Warrants pursuant to Section
12(g) of the Exchange Act with the National Association of
Securities Dealers, Inc. ("NASD") for listing those securities on
The Nasdaq SmallCap Market, and the Company has taken no action
designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act, nor has
the Company received any notification that the NASD is
contemplating not granting such registration or listing.
(o) The Company has been advised concerning the
Investment Company Act of 1940, as amended (the "1940 Act"), and
the rules and regulations thereunder, and has in the past
conducted, and intends in the future to conduct, its affairs in
such a manner as to ensure that it will not become an "investment
company" or a company "controlled" by an "investment company"
within the meaning of the 1940 Act and such rules and
regulations.
(p) The Company has not distributed and will not
distribute prior to the completion of the sale of the Common
Stock and Warrants, any offering material in connection with the
offering and sale of the Common Stock and Warrants other than any
Preliminary Prospectuses, the Prospectus, the Registration
Statement and other materials, if any, permitted by the Act.
(q) The Company has not at any time during the last
five (5) years (i) made any unlawful contribution to any
candidate for foreign office or failed to disclose fully any
contribution in violation of law, or (ii) made any payment to any
federal or state governmental officer or official, or other
person charged with similar public or quasi-public duties, other
than payments required or permitted by the laws of the United
States or any jurisdiction thereof.
(r) The Company 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 the Common Stock or Warrants to
facilitate the sale or resale of the Common Stock or Warrants or
the exercise of the Warrants.
(s) Each officer and director of the Company has
agreed in writing that such person will not, for a period of six
(6) months from the date that the Registration Statement is
declared effective by the Commission (the "Lock-up Period"),
offer to sell, contract to sell, or otherwise sell, dispose of,
loan, pledge or grant any rights with respect to (collectively, a
"Disposition") any shares of Common Stock, any options or
warrants to purchase any shares of Common Stock or any securities
convertible into or exchangeable for shares of Common Stock
(collectively, "Lock-up Securities") now owned or hereafter
acquired directly by such person or with respect to which such
person has or hereafter acquires the power of disposition,
otherwise than (i) as a bona fide gift or gifts, provided the
donee or donees thereof agree in writing to be bound by this
restriction, (ii) as a distribution to partners or shareholders
of such person, provided that the distributees thereof agree in
writing to be bound by the terms of this restriction, or (iii)
with the prior written consent of the Underwriter. The foregoing
restriction has been expressly agreed to preclude the holder of
the Lock-up Securities from engaging in any hedging or other
transaction which is designed to or reasonably expected to lead
to or in a Disposition of Lock-up Securities during the Lock-up
Period, even if such Lock-up Securities would be disposed of by
someone other than such holder. Such prohibited hedging or other
transactions would include, without limitation, any short sale
(whether or not against the box) or any purchase, sale or grant
of any right (including, without limitation, any put or call
option) with respect to any Lock-up Securities or with respect to
any security (other than a broad-based market basket or index)
that includes, relates to or derives any significant part of its
value from Lock-up Securities. Furthermore, such person has also
agreed and consented to the entry of stop transfer instructions
with the Company's transfer agent against the transfer of the
Lock-up Securities held by such person except in compliance with
this restriction. The Company has provided to counsel for the
Underwriter a complete and accurate list of all securityholders
of the Company and the number and type of securities held by each
securityholder. In addition, Group has agreed to prohibit the
sale by it of up to 800,000 shares of Common Stock under certain
circumstances until such time as the closing bid price for shares
of the Company's Common Stock exceeds certain targets for a
period of time, all as more fully set forth in the Prospectus.
(t) Except as set forth in the Registration Statement
and Prospectus and any Incorporated Document, (i) the Company is
in compliance with all rules, laws and regulations relating to
the use, treatment, storage and disposal of toxic substances and
protection of health or the environment ("Environmental Laws")
which are applicable to its business, (ii) the Company has
received no notice from any governmental authority or third party
of an asserted claim under Environmental Laws, which claim is
required to be disclosed in the Registration Statement and the
Prospectus and any Incorporated Document, (iii) the Company will
not be required to make future material capital expenditures to
comply with Environmental Laws and (iv) no property which is
owned, leased or occupied by the Company has been designated as a
Superfund site pursuant to the Comprehensive Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C.
(S) 9601, et seq.), or otherwise designated as a contaminated
site under applicable state or local law.
(u) 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 conformity with generally accepted
accounting principles and to maintain accountability for assets,
(iii) access to assets is permitted only in accordance with
management's general or specific authorization, and (iv) the
recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(v) There are no outstanding loans, advances (except
normal advances for business expenses in the ordinary course of
business) or guarantees of indebtedness by the Company to or for
the benefit of any of the officers or directors of the Company or
any of the members of the families of any of them, except as
disclosed in the Registration Statement and the Prospectus and
any Incorporated Document.
(w) The Company has complied with all provisions of
Section 517.075, Florida Statutes relating to doing business with
the Government of Cuba or with any person or affiliate located in
Cuba.
3. Purchase, Sale and Delivery of Shares. The Company
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appoints the Underwriter the agent of the Company (and Group) for
the period commencing on the date hereof until ( ), 1997,
extended by the Company and the Underwriter by their mutual
agreement for a period not to exceed an additional thirty (30)
days (the "Offering Termination Date"), to use Underwriter's best
efforts to offer and sell, on a best efforts, all or none basis,
a minimum of 1,200,000 shares of Common Stock (of which the
Company is offering 1,000,000 shares and Group is offering
200,000 shares) and Warrants to purchase a minimum of 1,200,000
shares of Common Stock, and a maximum of 1,600,000 shares of
Common Stock (of which the Company is offering 1,400,000 shares
and Group is offering 200,000 shares) and Warrants to purchase
1,600,000 shares of Common Stock at an offering price of $5.50
per share of Common Stock and $0.15 per Warrant. The shares of
Common Stock and Warrants in excess of the Minimum Offering will
be offered on a "best efforts" basis. The Underwriter shall have
the right to engage participating broker-dealers pursuant to
Section 7(d) hereof. The Underwriter hereby accepts such
appointment and agrees pursuant to the terms and conditions set
forth herein to use its best efforts to offer and sell the Common
Stock and Warrants as agent for the Company (and Group) during
the periods specified above, and to find purchasers for the
Common Stock and Warrants.
The Underwriter shall send, by noon of the next
business day after receipt, each purchaser's payment for his
Common Stock and/or Warrants to the Escrow Agent designated in
the following paragraph. All subscription proceeds shall be
deposited directly into a special account or Escrow Account
("Escrow Account") at SunTrust/South Florida, National
Association (the "Escrow Agent"), subject to an escrow agreement
in the form agreed by the Company, the Underwriter and the Escrow
Agent. Purchasers shall be instructed to make their checks
payable to "SunTrust Bank, Escrow Agent for Medley Credit
Acceptance Corp." The Underwriter shall promptly give notice to
the Company if and when the Minimum Offering has been sold, or
upon the Underwriter's decision to terminate the offering for any
breach of any term, condition, warranty or representation
contained in this Agreement by the Company. If the Offering is
terminated prior to the closing of the Minimum Offering, all
subscriptions will be returned by the Escrow Agent to their
respective subscribers without interest and without deduction.
The first closing of the offering of Common Stock and
Warrants shall occur upon the sale of the Minimum Offering, which
shall be deemed to have occurred when the Company has received
subscriptions, and funds have cleared the banking system, for the
sale of the minimum of 1,200,000 shares of Common Stock
(1,000,000 shares of which will be sold by the Company and
200,000 shares of which will be sold by Group) and Warrants to
purchase a minimum of 1,200,000 shares of Common Stock (the
"Initial Closing"). After the Initial Closing, the Company and
the Underwriter shall hold one or more additional closings, as
proceeds of sale of the Common Stock and Warrants are received,
from time-to-time, but no less than every two weeks after the
Initial Closing.
Closings will be held at the offices of the
Underwriter, 0000 Xxxxx Xxxxxxx Xxxxxxx, 0xx Xxxxx, Xxxx Xxxxx,
Xxxxxxx, or in an alternative location and at such time and dates
as the Underwriter and the Company may mutually agree.
4. Further Agreements of the Company. The Company agrees
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with the Underwriter that:
(a) The Company will use its best efforts to cause the
Registration Statement and any amendment thereof, if not
effective at the time and date that this Agreement is executed
and delivered by the parties hereto, to become effective as
promptly as possible; the Company will notify you, promptly after
it shall receive notice thereof, of the time when the
Registration Statement, any subsequent amendment to the
Registration Statement or any abbreviated registration statement
has become effective or any supplement to the Prospectus has been
filed; if the Company omitted information from the Registration
Statement at the time it was originally declared effective in
reliance upon Rule 430A(a) of the Rules and Regulations, the
Company will provide evidence satisfactory to you that the
Prospectus contains such information and has been filed, within
the time period prescribed, with the Commission pursuant to
subparagraph (1) or (4) of Rule 424(b) of the Rules and
Regulations or as part of a post-effective amendment to such
Registration Statement as originally declared effective which is
declared effective by the Commission; if for any reason the
filing of the final form of Prospectus is required under Rule
424(b)(3) of the Rules and Regulations, it will provide evidence
satisfactory to you that the Prospectus contains such information
and has been filed with the Commission within the time period
prescribed; it will notify you promptly of any request by the
Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information;
promptly upon your request, it will prepare and file with the
Commission any amendments or supplements to the Registration
Statement or Prospectus which, in the opinion of counsel for the
Underwriter ("Underwriter's Counsel"), may be necessary or
advisable in connection with the distribution of the Common Stock
and Warrants by the Underwriter; it will promptly prepare and
file with the Commission, and promptly notify you of the filing
of, any amendments or supplements to the Registration Statement
or Prospectus which may be necessary to correct any statements or
omissions, if, at any time when a prospectus relating to the
Common Stock and Warrants is required to be delivered under the
Act, any event shall have occurred as a result of which the
Prospectus or any other prospectus relating to the Common Stock
and Warrants as then in effect would include any untrue statement
of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; in case the
Underwriter is required to deliver a prospectus nine (9) months
or more after the effective date of the Registration Statement in
connection with the sale of the Common Stock and Warrants, it
will prepare promptly upon request such amendment or amendments
to the Registration Statement and such prospectus or prospectuses
as may be necessary to permit compliance with the requirements of
Section 10(a)(3) of the Act; and it will file no amendment or
supplement to the Registration Statement or Prospectus or the
Incorporated Documents, or, prior to the end of the period of
time in which a prospectus relating to the Common Stock and
Warrants is required to be delivered under the Act, file any
document which upon filing becomes an Incorporated Document,
which shall not previously have been submitted to you a
reasonable time prior to the proposed filing thereof or to which
you shall reasonably object in writing, subject, however, to
compliance with the Act and the Rules and Regulations, the
Exchange Act and the rules and regulations of the Commission
thereunder and the provisions of this Agreement.
(b) The Company will advise you, promptly after it
shall receive notice or obtain knowledge, of the issuance of any
stop order by the Commission suspending the effectiveness of the
Registration Statement or of the initiation or threat of any
proceeding for that purpose; and it will promptly use its best
efforts to prevent the issuance of any stop order or to obtain
its withdrawal at the earliest possible moment if such stop order
should be issued.
(c) The Company will use its best efforts to qualify
the Securities for offering and sale under the securities laws of
such jurisdictions as you may designate and to continue such
qualifications in effect for so long as may be required for
purposes of the distribution of the Common Stock and Warrants,
except that the Company shall not be required in connection
therewith or as a condition thereof to qualify as a foreign
corporation or to execute a general consent to service of process
in any jurisdiction in which it is not otherwise required to be
so qualified or to so execute a general consent to service of
process. In each jurisdiction in which the Securities shall have
been qualified as above provided, the Company will make and file
such statements and reports in each year as are or may be
required by the laws of such jurisdiction.
(d) The Company will furnish to you, as soon as
available, and, in the case of the Prospectus in no event later
than the first (1st) full business day following the first day
that Common Stock and Warrants are traded, copies of the
Registration Statement (three of which will be signed and which
will include all exhibits), each Preliminary Prospectus, the
Prospectus and any amendments or supplements to such documents,
including any prospectus prepared to permit compliance with
Section 10(a)(3) of the Act, and the Incorporated Documents
(three of which will include all exhibits) all in such quantities
as you may from time to time reasonably request.
(e) The Company will make generally available to its
securityholders as soon as practicable, but in any event not
later than the forty-fifth (45th) day following the end of the
fiscal quarter first occurring after the first anniversary of the
effective date of the Registration Statement, an earnings
statement (which will be in reasonable detail but need not be
audited) complying with the provisions of Section 11(a) of the
Act and covering a twelve (12) month period beginning after the
effective date of the Registration Statement.
(f) During a period of five (5) years after the date
hereof, the Company will furnish to its shareholders as soon as
practicable after the end of each respective period, annual
reports (including financial statements audited by independent
certified public accountants) and unaudited quarterly reports of
operations for each of the first three quarters of the fiscal
year, and will furnish to the Underwriter hereunder, upon request
(i) concurrently with furnishing such reports to its
shareholders, statements of operations of the Company for each of
the first three (3) quarters in the form furnished to the
Company's shareholders, (ii) concurrently with furnishing to its
shareholders, a balance sheet of the Company as of the end of
such fiscal year, together with statements of operations, of
shareholders' equity, and of cash flows of the Company for such
fiscal year, accompanied by a copy of the certificate or report
thereon of independent certified public accountants, (iii) as
soon as they are available, copies of all reports (financial or
other) mailed to shareholders, (iv) as soon as they are
available, copies of all reports and financial statements
furnished to or filed with the Commission, any securities
exchange or the NASD, (v) every material press release and every
material news item or article in respect of the Company or its
affairs which was generally released to shareholders or prepared
by the Company or any of its subsidiaries, and (vi) any
additional information of a public nature concerning the Company
or its business which you may reasonably request. During such
five (5) year period, if the Company shall have active
subsidiaries, the foregoing financial statements shall be on a
consolidated basis to the extent that the accounts of the Company
and its subsidiaries are consolidated, and shall be accompanied
by similar financial statements for any significant subsidiary
which is not so consolidated.
(g) The Company will apply the net proceeds from the
sale of the Common Stock and Warrants being sold by it in the
manner set forth under the caption "Use of Proceeds" in the
Prospectus.
(h) The Company will maintain a warrant and transfer
agent and, if necessary under the jurisdiction of incorporation
of the Company, a registrar (which may be the same entity as the
transfer agent) for its Common Stock and Warrants.
(i) If the transactions contemplated hereby are not
consummated by reason of any failure, refusal or inability on the
part of the Company to perform any agreement on its part to be
performed hereunder or to fulfill any condition of the
Underwriter's obligations hereunder, or if the Company shall
terminate this Agreement pursuant to Section 11(a) hereof, or if
the Underwriters shall terminate this Agreement pursuant to
Section 11(b)(i), the Company will reimburse the Underwriter for
all out-of-pocket expenses (including fees and disbursements of
Underwriter's Counsel) incurred by the Underwriter in
investigating or preparing to market or marketing the Common
Stock and Warrants.
(j) If at any time during the ninety (90) day period
after the Registration Statement becomes effective, any rumor,
publication or event relating to or affecting the Company shall
occur as a result of which in your opinion the market price of
the Common Stock has been or is likely to be materially affected
(regardless of whether such rumor, publication or event
necessitates a supplement to or amendment of the Prospectus), the
Company will, after written notice from you advising the Company
to the effect set forth above, forthwith prepare, consult with
you concerning the substance of and disseminate a press release
or other public statement, reasonably satisfactory to you,
responding to or commenting on such rumor, publication or event.
5. Expenses.
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(a) The Company agrees with the Underwriter that:
(i) The Company will pay and bear all costs and
expenses in connection with the preparation, printing and filing
of the Registration Statement (including financial statements,
schedules and exhibits), Preliminary Prospectuses and the
Prospectus and the Incorporated Documents and any amendments or
supplements thereto; the printing of this Agreement, the Selected
Dealer Agreement, the Preliminary Blue Sky Survey and any
Supplemental Blue Sky Survey, the Underwriter's Questionnaire and
Power of Attorney, and any instruments related to any of the
foregoing; the issuance and delivery of the Common Stock and
Warrants hereunder to the purchasers thereof, including transfer
taxes, if any, the cost of all certificates representing the
Common Stock and Warrants and transfer agents' and registrars'
fees; the fees and disbursements of counsel for the Company; all
fees and other charges of the Company's independent certified
public accountants; the cost of furnishing to the Underwriter
copies of the Registration Statement (including appropriate
exhibits), Preliminary Prospectus and the Prospectus and the
Incorporated Documents, and any amendments or supplements to any
of the foregoing; NASD filing fees and the cost of qualifying the
Common Stock and Warrants under the laws of such jurisdictions as
you may designate (including filing fees and fees and
disbursements of Underwriter's Counsel in connection with such
NASD filings and blue sky qualifications); and all other expenses
directly incurred by the Company in connection with the
performance of their obligations hereunder. Notwithstanding the
foregoing, all fees and disbursements of the Qualified
Independent Underwriter shall be borne by the Underwriter and not
the Company.
(ii) In addition to its other obligations under
Section 8(a) hereof, the Company agrees that, as an interim
measure during the pendency of any claim, action, investigation,
inquiry or other proceeding described in Section 8(a) hereof, it
will reimburse the Underwriter on a monthly basis for all
reasonable legal or other expenses incurred in connection with
investigating or defending any such claim, action, investigation,
inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of
the Company's obligation to reimburse the Underwriter for such
expenses and the possibility that such payments might later be
held to have been improper by a court of competent jurisdiction.
To the extent that any such interim reimbursement payment is so
held to have been improper, the Underwriter shall promptly return
such payment to the Company together with interest, compounded
daily, determined on the basis of the prime rate (or other
commercial lending rate for borrowers of the highest credit
standing) listed from time to time in The Wall Street Journal
which represents the base rate on corporate loans posted by a
substantial majority of the nation's thirty (30) largest banks
(the "Prime Rate"). Any such interim reimbursement payments
which are not made to the Underwriters within thirty (30) days of
a request for reimbursement shall bear interest at the Prime Rate
from the date of such request.
(b) In addition to its other obligations under Section
8(b) hereof, the Underwriter agrees that, as an interim measure
during the pendency of any claim, action, investigation, inquiry
or other proceeding described in Section 8(b) hereof, it will
reimburse the Company on a monthly basis for all reasonable legal
or other expenses incurred in connection with investigating or
defending any such claim, action, investigation, inquiry or other
proceeding, notwithstanding the absence of a judicial
determination as to the propriety and enforceability of the
Underwriter's obligation to reimburse the Company for such
expenses and the possibility that such payments might later be
held to have been improper by a court of competent jurisdiction.
To the extent that any such interim reimbursement payment is so
held to have been improper, the Company shall promptly return
such payment to the Underwriter together with interest,
compounded daily, determined on the basis of the Prime Rate. Any
such interim reimbursement payments which are not made to the
Company within thirty (30) days of a request for reimbursement
shall bear interest at the Prime Rate from the date of such
request.
(c) It is agreed that any controversy arising out of
the operation of the interim reimbursement arrangements set forth
in Sections 5(a)(i) and 5(b) hereof, including the amounts of any
requested reimbursement payments, the method of determining such
amounts and the basis on which such amounts shall be apportioned
among the reimbursing parties, shall be settled by arbitration
conducted under the to the Code of Arbitration Procedure of the
NASD. Any such arbitration must be commenced by service of a
written demand for arbitration or a written notice of intention
to arbitrate, therein electing the arbitration tribunal. In the
event the party demanding arbitration does not make such
designation of an arbitration tribunal in such demand or notice,
then the party responding to said demand or notice is authorized
to do so. Any such arbitration will be limited to the operation
of the interim reimbursement provisions contained in Sections
5(a)(i) and 5(b) hereof and will not resolve the ultimate
propriety or enforceability of the obligation to indemnify for
expenses which is created by the provisions of Sections 8(a) and
8(b) hereof or the obligation to contribute to expenses which is
created by the provisions of Section 8(d) hereof.
6. Conditions of Underwriter's Obligations. The
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obligations of the Underwriter as provided herein shall be
subject to the accuracy, as of the date hereof and the date of
each Closing, of the representations and warranties of the
Company herein, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become
effective not later than 2:00 P.M., New York time, on the date
following the date of this Agreement, or such later date as shall
be consented to in writing by you; and no stop order suspending
the effectiveness thereof shall have been issued and no
proceedings for that purpose shall have been initiated or, to the
knowledge of the Company or any Underwriter, threatened by the
Commission, and any request of the Commission for additional
information (to be included in the Registration Statement or the
Prospectus or any Incorporated Document or otherwise) shall have
been complied with to the satisfaction of Underwriter's Counsel.
(b) All corporate proceedings and other legal matters
in connection with this Agreement, the form of Registration
Statement and the Prospectus, any Incorporated Document and the
registration, authorization, issue, sale and delivery of the
Common Stock and Warrants, shall have been reasonably
satisfactory to Underwriter's Counsel, and such counsel shall
have been furnished with such papers and information as they may
reasonably have requested to enable them to pass upon the matters
referred to in this Section.
(c) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have
been any change in the condition (financial or otherwise),
earnings, operations, business or business prospects of the
Company from that set forth in the Registration Statement or
Prospectus, which, in your sole judgment, is material and adverse
and that makes it, in your sole judgment, impracticable or
inadvisable to proceed with the public offering of the Common
Stock and Warrants as contemplated by the Prospectus.
(d) You shall have received on the Initial Closing
date the following opinion of counsel for the Company dated the
Initial Closing Date addressed to the Underwriter to the effect
that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation;
(ii) The Company has the corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus;
(iii) The Company is duly qualified to do
business as a foreign corporation and is in good standing in each
jurisdiction, if any, in which the ownership or leasing of their
properties or the conduct of its business requires such
qualification, except where the failure to be so qualified or be
in good standing would not have a material adverse effect on the
condition (financial or otherwise), earnings, operations or
business of the Company. To such counsel's knowledge, the
Company does not own or control, directly or indirectly, any
corporation, association or other entity;
(iv) The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus
under the caption "Capitalization" as of the dates stated
therein, the issued and outstanding shares of capital stock of
the Company have been duly and validly issued and are fully paid
and nonassessable, and, to such counsel's knowledge, will not
have been issued in violation of or subject to any preemptive
right, co-sale right, registration right, right of first refusal
or other similar right;
(v) The Common Stock and Warrants to be issued by
the Company pursuant to the terms of this Agreement have been
duly authorized and, upon issuance and delivery against payment
therefor in accordance with the terms hereof, will be duly and
validly issued and fully paid and nonassessable, and will not
have been issued in violation of or subject to any preemptive
right, co-sale right, registration right, right of first refusal
or other similar right;
(vi) The Company has the corporate power and
authority to enter into this Agreement and to issue, sell and
deliver the Securities to be issued and sold by it hereunder;
(vii) This Agreement has been duly authorized
by all necessary corporate action on the part of the Company and
has been duly executed and delivered by the Company and, assuming
due authorization, execution and delivery by you, is a valid and
binding agreement of the Company, enforceable in accordance with
its terms, except insofar as indemnification provisions may be
limited by applicable law and except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting creditors' rights generally
or by general equitable principles;
(viii) The Registration Statement has become
effective under the Act and, to such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are pending or threatened under the Act;
(ix) The Registration Statement and the
Prospectus, and each amendment or supplement thereto (other than
the financial statements (including supporting schedules) and
financial data derived therefrom as to which such counsel need
express no opinion), as of the effective date of the Registration
Statement, complied as to form in all material respects with the
requirements of the Act and the applicable Rules and Regulations;
and each of the Incorporated Documents (other than the financial
statements (including supporting schedules) and the financial
data derived therefrom as to which such counsel need express no
opinion) complied when filed pursuant to the Exchange Act as to
form in all material respects with the requirements of the Act
and the Rules and Regulations and the Exchange Act and the
applicable rules and regulations of the Commission thereunder;
(x) The information in the Prospectus under the
caption "Description of Securities," to the extent that it
constitutes matters of law or legal conclusions, has been
reviewed by such counsel and is a fair summary of such matters
and conclusions; and the forms of certificates evidencing the
Common Stock and Warrants and filed as exhibits to the
Registration Statement comply with Delaware law;
(xi) The description in the Registration Statement
and the Prospectus of the charter and bylaws of the Company and
of statutes are accurate and fairly present the information
required to be presented by the Act and the applicable Rules and
Regulations;
(xii) To such counsel's knowledge, there are
no agreements, contracts, leases or documents to which the
Company is a party of a character required to be described or
referred to in the Registration Statement or Prospectus or any
Incorporated Document or to be filed as an exhibit to the
Registration Statement or any Incorporated Document which are not
described or referred to therein or filed as required;
(xiii) The performance of this Agreement and
the consummation of the transactions herein contemplated (other
than performance of the Company's indemnification obligations
hereunder, concerning which no opinion need be expressed) will
not (a) result in any violation of the Company's charter or
bylaws or (b) to such counsel's knowledge, result in a material
breach or violation of any of the terms and provisions of, or
constitute a default under, any bond, debenture, note or other
evidence of indebtedness, or any lease, contract, indenture,
mortgage, deed of trust, loan agreement, joint venture or other
agreement or instrument known to such counsel to which the
Company is a party or by which its properties are bound, or any
applicable statute, rule or regulation known to such counsel or,
to such counsel's knowledge, any order, writ or decree of any
court, government or governmental agency or body having
jurisdiction over the Company or over any of their properties or
operations;
(xiv) No consent, approval, authorization or
order of or qualification with any court, government or
governmental agency or body having jurisdiction over the Company
or over any of its properties or operations is necessary in
connection with the consummation by the Company of the
transactions herein contemplated, except such as have been
obtained under the Act or such as may be required under state or
other securities or blue sky laws in connection with the purchase
and the distribution of the Common Stock and Warrants by the
Underwriter;
(xv) To such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened against
the Company of a character required to be disclosed in the
Registration Statement or the Prospectus or any Incorporated
Document by the Act or the Rules and Regulations or by the
Exchange Act or the applicable rules and regulations of the
Commission thereunder, other than those described therein;
(xvi) To such counsel's knowledge, the Company
is not presently (a) in material violation of its respective
charter or bylaws, or (b) in material breach of any applicable
statute, rule or regulation known to such counsel or, to such
counsel's knowledge, any order, writ or decree of any court or
governmental agency or body having jurisdiction over the Company
or over any of their properties or operations;
(xvii) To such counsel's knowledge, except as
set forth in the Registration Statement and Prospectus and any
Incorporated Document, no holders of Common Stock or other
securities of the Company have registration rights with respect
to securities of the Company and, except as set forth in the
Registration Statement and Prospectus, all holders of securities
of the Company having rights known to such counsel to
registration of such shares of Common Stock or other securities,
because of the filing of the Registration Statement by the
Company have, with respect to the offering contemplated thereby,
waived such rights or such rights have expired by reason of lapse
of time following notification of the Company's intent to file
the Registration Statement or have included securities in the
Registration Statement pursuant to the exercise of and in full
satisfaction of such rights;
In addition, such counsel shall state that such counsel
has participated in conferences with officials and other
representatives of the Company, the Underwriter, Underwriter's
Counsel and the independent certified public accountants of the
Company, at which such conferences the contents of the
Registration Statement and Prospectus and related matters were
discussed, and although they have not verified the accuracy or
completeness of the statements contained in the Registration
Statement or the Prospectus, nothing has come to the attention of
such counsel which leads them to believe that, at the time the
Registration Statement became effective and at all times
subsequent thereto up to and on the Initial Closing Date, the
Registration Statement and any amendment or supplement thereto
and any Incorporated Document, when such documents became
effective or were filed with the Commission (other than the
financial statements including supporting schedules and other
financial and statistical information derived therefrom, as to
which such counsel need express no comment) contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or at the Initial Closing Date, the
Registration Statement, the Prospectus and any amendment or
supplement thereto and any Incorporated Document (except as
aforesaid) contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. Such counsel shall also state that the
conditions for the use of Form SB-2 set forth in the General
Instructions thereto have been satisfied.
Counsel rendering the foregoing opinion may rely as to
questions of law not involving the laws of the United States or
the State of Delaware upon opinions of local counsel, and as to
questions of fact upon representations or certificates of
officers of the Company, and of government officials, in which
case their opinion is to state that they are so relying and that
they have no knowledge of any material misstatement or inaccuracy
in any such opinion, representation or certificate. Copies of
any opinion, representation or certificate so relied upon shall
be delivered to the Underwriter, and to Underwriter's Counsel.
(e) You shall have received on the Initial Closing
Date a letter from Xxxxxxx, Xxxxxx & Xxxxxx addressed to the
Underwriter, dated the Closing Date confirming that they are
independent certified public accountants with respect to the
Company within the meaning of the Act and the applicable
published Rules and Regulations and based upon the procedures
described in such letter delivered to you concurrently with the
execution of this Agreement (herein called the "Original
Letter"), but carried out to a date not more than five (5)
business days prior to the Initial Closing Date as the case may
be, (i) confirming, to the extent true, that the statements and
conclusions set forth in the Original Letter are accurate as of
the Closing Date and (ii) setting forth any revisions and
additions to the statements and conclusions set forth in the
Original Letter which are necessary to reflect any changes in the
facts described in the Original Letter since the date of such
letter, or to reflect the availability of more recent financial
statements, data or information. The letter shall not disclose
any change in the condition (financial or otherwise), earnings,
operations, business or business prospects of the Company from
that set forth in the Registration Statement or Prospectus,
which, in your sole judgment, is material and adverse and that
makes it, in your sole judgment, impracticable or inadvisable to
proceed with the public offering as contemplated by the
Prospectus. The Original Letter from Daszkal, Xxxxxx & Xxxxxx
shall be addressed to or for the use of the Underwriter in form
and substance satisfactory to the Underwriter and shall (i)
represent, to the extent true, that they are independent
certified public accountants with respect to the Company within
the meaning of the Act and the applicable published Rules and
Regulations, (ii) set forth their opinion with respect to their
examination of the consolidated balance sheets of the Company as
of December 31, 1996, and related consolidated statements of
operations, shareholders' equity, and cash flows for the twelve
(12) months ended December 31, 1996, and (iii) address other
matters agreed upon by Xxxxxxx, Xxxxxx & Xxxxxx and you. In
addition, you shall have received from Daszkal, Xxxxxx & Xxxxxx a
letter addressed to the Company and made available to you for the
use of the Underwriter stating that their review of the Company's
system of internal accounting controls, to the extent they deemed
necessary in establishing the scope of their examination of the
Company's consolidated financial statements as of December 31,
1996, did not disclose any weaknesses in internal controls that
they considered to be material weaknesses.
(f) You shall have received on the Closing Date a
certificate of the Company, dated the Initial Closing Date signed
by the Chief Executive Officer and Chief Financial Officer of the
Company, to the effect that, and you shall be satisfied that:
(i) The representations and warranties of the
Company in this Agreement are true and correct, as if made on and
as of the Initial Closing date and the Company has complied with
all the agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for
that purpose have been instituted or are pending or threatened
under the Act;
(iii) When the Registration Statement became
effective and at all times subsequent thereto up to the delivery
of such certificate, the Registration Statement and the
Prospectus, and any amendments or supplements thereto and the
Incorporated Documents, when such Incorporated Documents became
effective or were filed with the Commission, contained all
material information required to be included therein by the Act
and the Rules and Regulations or the Exchange Act and the
applicable rules and regulations of the Commission thereunder, as
the case may be, and in all material respects conformed to the
requirements of the Act and the Rules and Regulations or the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, as the case may be, the Registration
Statement, and any amendment or supplement thereto, did not and
does not include any untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, the
Prospectus, and any amendment or supplement thereto, did not and
does not include any untrue statement of a material fact or omit
to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, and, since the effective date of the
Registration Statement, there has occurred no event required to
be set forth in an amended or supplemented Prospectus which has
not been so set forth; and
(iv) Subsequent to the respective dates as of
which information is given in the Registration Statement and
Prospectus, there has not been (a) any material adverse change in
the condition (financial or otherwise), earnings, operations,
business or business prospects of the Company, (b) any
transaction that is material to the Company, except transactions
entered into in the ordinary course of business, (c) any
obligation, direct or contingent, that is material to the
Company, incurred by the Company, except obligations incurred in
the ordinary course of business, (d) any change in the capital
stock or outstanding indebtedness of the Company or any of its
subsidiaries that is material to the Company and its subsidiaries
considered as one enterprise, (e) any dividend or distribution of
any kind declared, paid or made on the capital stock of the
Company or any of its subsidiaries, or (f) any loss or damage
(whether or not insured) to the property of the Company or any of
its subsidiaries which has been sustained or will have been
sustained which has a material adverse effect on the condition
(financial or otherwise), earnings, operations, business or
business prospects of the Company.
(g) The Company shall have obtained and delivered to
you an agreement from each officer and director of the Company in
writing prior to the date hereof that such person will not,
during the Lock-up Period, effect the Disposition of any
Securities now owned or hereafter acquired directly by such
person or with respect to which such person has or hereafter
acquires the power of disposition, otherwise than (i) as a bona
fide gift or gifts, provided the donee or donees thereof agree in
writing to be bound by this restriction, (ii) as a distribution
to partners or shareholders of such person, provided that the
distributees thereof agree in writing to be bound by the terms of
this restriction, or (iii) with the prior written consent of the
Underwriter. The foregoing restriction shall have been expressly
agreed to preclude the holder of the Lock-up Securities from
engaging in any hedging or other transaction which is designed to
or reasonably expected to lead to or result in a Disposition of
Securities during the Lock-up Period, even if such Lock-up
Securities would be disposed of by someone other than the such
holder. Such prohibited hedging or other transactions would
including, without limitation, any short sale (whether or not
against the box) or any purchase, sale or grant of any right
(including, without limitation, any put or call option) with
respect to any Lock-up Securities or with respect to any security
(other than a broad-based market basket or index) that includes,
relates to or derives any significant part of its value from
Lock-up Securities. Furthermore, such person will have also
agreed and consented to the entry of stop transfer instructions
with the Company's transfer agent against the transfer of the
Lock-up Securities held by such person except in compliance with
this restriction. In addition, you shall have been furnished with
an acknowledgement from Group as to its agreement regarding
800,000 shares of Common Stock as set forth in Section 2(s)
hereof.
(h) You shall be satisfied, in your own discretion,
that all indebtedness owing to the Company at the Initial Closing
date from Medley Refrigeration, Inc. will be satisfied in its
entirety from the offering proceeds held in escrow by the Escrow
Agent attributable to the sale by Group, in the Minimum Offering,
of Group's 200,000 shares of Common Stock.
(i) The Company shall have furnished to you such
further certificates and documents as you shall reasonably
request (including certificates of officers of the Company as to
the accuracy of the representations and warranties of the Company
herein, as to the performance by the Company of its obligations
hereunder and as to the other conditions concurrent and precedent
to the obligations of the Underwriter hereunder.
All such opinions, certificates, letters and documents
will be in compliance with the provisions hereof only if they are
reasonably satisfactory to Underwriter's Counsel. The Company
will furnish you with such number of conformed copies of such
opinions, certificates, letters and documents as you shall
reasonably request.
7. Compensation.
------------
(a) As compensation for the Underwriter's services
hereunder, the Company shall pay to the Underwriter in cash a
selling commission ("Commission") upon closing, on a pro-rata
basis, in an amount equal to ten percent (10%) of the aggregate
offering price of the Common Stock and Warrants sold by the
Underwriter. At the Initial Closing and each subsequent closing
until the Offering Termination Date, the Company shall pay the
Underwriter its Commission relating to the sale of the Common
Stock and Warrants subject to the Closing. All or any portion of
such Commission may be re-allowed to Selected Dealers (as
hereinafter defined). Anything in this Agreement to the contrary
notwithstanding, the Company shall not be required to pay a
Commission to Underwriters pursuant to this Section 7(a) or any
other provision, if to do so would cause the Company to violate
federal or state securities laws, regulations or rules or any
other law applicable to the offering.
(b) The Company shall pay the Underwriter at each
Closing a non-accountable expense allowance equal to 1.9% of
the aggregate offering price of the Common Stock and Warrants
subject to the Closing sold by the Underwriter to cover the
cost of marketing, legal, mailing, travel and other similar
expenses. The non-accountable expense allowance may not be
re-allowed to Selected Dealers.
(c) The Company hereby authorizes the Underwriter to
engage other qualified broker-dealers (the "Selected Dealers") to
assist the Underwriter in the placement of the Common Stock and
Warrants; provided that during all times that each such Selected
Dealer shall offer and sell the Common Stock and Warrants, each
such Selected Dealer shall be registered as a broker-dealer under
the Securities Exchange act of 1934 (the "1934 Act"), shall be a
member in good standing of NASD, and shall be authorized to offer
and sell the Common Stock and Warrants under the laws of the
jurisdiction in which the Common Stock and Warrants will be
offered and sold by such Selected Dealer. All Selected Dealers
will be required to execute a Selected Dealer Agreement, the form
of which is subject to the approval of the Company, with the
Company containing substantially the same terms an conditions as
this Agreement, including provisions for indemnification of the
Company to the same extent as your indemnification provided in
Section 8, below.
(d) The Underwriter may allow selected dealers
concessions not in excess of $.385 per share of Common Stock and
$.0105 per Warrant.
(e) The Company has agreed, in connection with the
exercise of the Warrants pursuant to solicitation (commencing one
year from the date of the Prospectus), to pay to the Underwriter
a fee of five percent (5%) of the exercise price for each Warrant
exercised; provided, however, that the Underwriter will not be
entitled to receive such compensation in Warrant exercise
transactions in which (i) the market price of the Common Stock at
the time of exercise is lower than the exercise price of the
Warrants; (ii) the Warrants are held in any discretionary
account; (iii) disclosure of compensation arrangements is not
made, in addition to the disclosure provided in the Prospectus,
in documents provided to holders of Warrants at the time of
exercise; (iv) the exercise of the Warrants is unsolicited; and
(v) the solicitation of exercise of the Warrants was in violation
of Rule 10b-6 promulgated under the Exchange Act. Holders of
Warrants will be required to designate in writing that they were
solicited in order for the exercise fee to be payable to the
Underwriter.
8. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless
each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may
become subject (including, without limitation, in its capacity as
an Underwriter, or, with respect to the Qualified Independent
Underwriter, as a "qualified independent underwriter" within the
meaning of Schedule E of the Bylaws of the NASD), under the Act,
the Exchange Act or otherwise, specifically including, but not
limited to, losses, claims, damages or liabilities (or actions in
respect thereof) arising out of or based upon (i) any breach of
any representation, warranty, agreement or covenant of the
Company herein contained, (ii) any untrue statement or alleged
untrue statement of any material fact contained in the
Registration Statement or any amendment or supplement thereto,
including any Incorporated Document, or the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or (iii) any untrue statement or alleged untrue
statement of any material fact contained in any Preliminary
Prospectus or the Prospectus or any amendment or supplement
thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading, and agrees to reimburse
each Underwriter for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however,
that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action
arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in the
Registration Statement, such Preliminary Prospectus or the
Prospectus, or any such amendment or supplement thereto, in
reliance upon, and in conformity with, written information
relating to any Underwriter furnished to the Company by such
Underwriter, directly or through you, specifically for use in the
preparation thereof and, provided further, that the indemnity
agreement provided in this Section 8(a) with respect to any
Preliminary Prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any losses, claims,
damages, liabilities or actions based upon any untrue statement
or alleged untrue statement of material fact or omission or
alleged omission to state therein a material fact purchased
Securities, if a copy of the Prospectus in which such untrue
statement or alleged untrue statement or omission or alleged
omission was corrected had not been sent or given to such person
within the time required by the Act and the Rules and
Regulations, unless such failure is the result of noncompliance
by the Company with Section 4(d) hereof.
The indemnity agreement in this Section 8(a) shall
extend upon the same terms and conditions to, and shall inure to
the benefit of, each person, if any, who controls any Underwriter
within the meaning of the Act or the Exchange Act. This
indemnity agreement shall be in addition to any liabilities which
the Company may otherwise have.
(b) The Underwriter agrees to indemnify and hold
harmless the Company against any losses, claims, damages or
liabilities, joint or several, to which the Company may become
subject under the Act or otherwise, specifically including, but
not limited to, losses, claims, damages or liabilities (or
actions in respect thereof) arising out of or based upon (i) any
breach of any representation, warranty, agreement or covenant of
such Underwriter herein contained, (ii) any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement or any amendment or supplement thereto,
including any Incorporated Document, or the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or (iii) any untrue statement or alleged untrue
statement of any material fact contained in any Preliminary
Prospectus or the Prospectus or any amendment or supplement
thereto, or the omission or alleged omission to state therein a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, in the case of subparagraphs (ii) and (iii) of this
Section 8(b) to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such Underwriter,
directly or through you, specifically for use in the preparation
thereof, and agrees to reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection
with investigating or defending any such loss, claim, damage,
liability or action. The indemnity agreement in this Section
8(b) shall extend upon the same terms and conditions to, and
shall inure to the benefit of, each officer of the Company who
signed the Registration Statement and each director of the
Company and each person, if any, who controls the Company within
the meaning of the Act or the Exchange Act. This indemnity
agreement shall be in addition to any liabilities which each
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to
be made against any indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement
thereof but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 8. In case
any such action is brought against any indemnified party, and it
notified the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and,
to the extent that it shall elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to
such indemnified party of the indemnifying party's election so to
assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified
party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (together with
appropriate local counsel) approved by the indemnifying party
representing all the indemnified parties under Section 8(a) or
8(b) hereof who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of
the indemnifying party. In no event shall any indemnifying party
be liable in respect of any amounts paid in settlement of any
action unless the indemnifying party shall have approved the
terms of such settlement; provided that such consent shall not be
unreasonably withheld. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and
indemnification could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on all claims that are the subject matter of such
proceeding.
(d) In order to provide for just and equitable
contribution in any action in which a claim for indemnification
is made pursuant to this Section 8 but it is judicially
determined (by the entry of a final judgment or decree by a court
of competent jurisdiction and the expiration of time to appeal or
the denial of the last right of appeal) that such indemnification
may not be enforced in such case notwithstanding the fact that
this Section 8 provides for indemnification in such case, all the
parties hereto shall contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after
contribution from others) in such proportion so that the
Underwriters severally and not jointly are responsible pro rata
for the portion represented by the percentage that the
underwriting discount bears to the initial public offering price,
and the Company is responsible for the remaining portion,
provided, however, that (i) the Underwriter shall not be required
to contribute any amount in excess of the amount by which the
commission and non-accountable expense allowance of the
Underwriter (or, in the case of the Qualified Independent
Underwriter, its compensation) exceeds the amount of damages
which such Underwriter has otherwise required to pay and (ii) no
person guilty of a fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation. The contribution agreement in this Section
8(d) shall extend upon the same terms and conditions to, and
shall inure to the benefit of, each person, if any, who controls
any Underwriter, or the Company within the meaning of the Act or
the Exchange Act and each officer of the Company who signed the
Registration Statement and each director of the Company.
(e) The parties to this Agreement hereby acknowledge
that they are sophisticated business persons who were represented
by counsel during the negotiations regarding the provisions
hereof including, without limitation, the provisions of this
Section 8, and are fully informed regarding said provisions.
They further acknowledge that the provisions of this Section 8
fairly allocate the risks in light of the ability of the parties
to investigate the Company and its business in order to assure
that adequate disclosure is made in the Registration Statement
and Prospectus as required by the Act and the Exchange Act.
9. Representations, Warranties, Covenants and Agreements
-----------------------------------------------------
to Survive Delivery. All representations, warranties, covenants
-------------------
and agreements of the Company and the Underwriters herein or in
certificates delivered pursuant hereto, and the indemnity and
contribution agreements contained in Section 8 hereof shall
remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter within the meaning of the Act
or the Exchange Act, or by or on behalf of the Company or any of
their officers, directors or controlling persons within the
meaning of the Act or the Exchange Act, and shall survive the
delivery of the Common Stock or Warrants to the subsidiaries
therefor or termination of this Agreement.
10. Effective Date of this Agreement and Termination.
------------------------------------------------
(a) This Agreement shall become effective at the
earlier of (i) 6:30 A.M., New York City time, on the first full
business day following the effective date of the Registration
Statement, or (ii) the time of the initial public offering of any
of the Common Stock and Warrants by the Underwriter after the
Registration Statement becomes effective. The time of the
initial public offering shall mean the time of the release by
you, for publication, of the first newspaper advertisement
relating to the Common Stock and Warrants, or the time at which
the Common Stock and Warrants are first generally offered by the
Underwriter to the public by letter, telephone, telegram or
telecopy, whichever shall first occur. By giving notice as set
forth in Section 12 before the time this Agreement becomes
effective, you or the Company, may prevent this Agreement from
becoming effective without liability of any party to any other
party, except as provided in Sections 4(j), 5 and 8 hereof.
(b) You shall have the right to terminate this
Agreement by giving notice as hereinafter specified at any time
on or prior to the Initial Closing date, (i) if the Company shall
have failed, refused or been unable to perform any agreement on
its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled is
not fulfilled, including, without limitation, any change in the
condition (financial or otherwise), earnings, operations,
business or business prospects of the Company and its
subsidiaries considered as one enterprise from that set forth in
the Registration Statement or Prospectus, which, in your sole
judgment, is material and adverse, or (ii) if additional material
governmental restrictions, not in force and effect on the date
hereof, shall have been imposed upon trading in securities
generally or minimum or maximum prices shall have been generally
established on the New York Stock Exchange or on the American
Stock Exchange or in the over the counter market by the NASD, or
trading in securities generally shall have been suspended on
either such exchange or in the over the counter market by the
NASD, or if a banking moratorium shall have been declared by
federal or New York authorities, or (iii) if the Company shall
have sustained a loss by strike, fire, flood, earthquake,
accident or other calamity of such character as to interfere
materially with the conduct of the business and operations of the
Company regardless of whether or not such loss shall have been
insured, or (iv) if there shall have been a material adverse
change in the general political or economic conditions or
financial markets as in your reasonable judgment makes it
inadvisable or impracticable to proceed with the offering, sale
and delivery of the Securities, or (v) if there shall have been
an outbreak or escalation of hostilities or of any other
insurrection or armed conflict or the declaration by the United
States of a national emergency which, in the reasonable opinion
of the Underwriter, makes it impracticable or inadvisable to
proceed with the public offering of the Securities as
contemplated by the Prospectus. In the event of termination
pursuant to subparagraph (i) above, the Company shall remain
obligated to pay costs and expenses pursuant to Sections 4(j), 5
and 8 hereof. Any termination pursuant to any of subparagraphs
(ii) through (v) above shall be without liability of any party to
any other party except as provided in Sections 5 and 8 hereof.
If you elect to prevent this Agreement from becoming effective or
to terminate this Agreement as provided in this Section 11, you
shall promptly notify the Company by telephone, telecopy or
telegram, in each case confirmed by letter. If the Company shall
elect to prevent this Agreement from becoming effective, the
Company shall promptly notify you by telephone, telecopy or
telegram, in each case, confirmed by letter.
11. Notices. All notices or communications hereunder,
-------
except as herein otherwise specifically provided, shall be in
writing and if sent to you shall be mailed, delivered,
telegraphed (and confirmed by letter) or telecopied (and
confirmed by letter) to you c/o PCM Securities Limited, L.P., 00
Xxx Xxxx, 0xx Xxxxx, Xxx Xxxx, New York, telecopier number (212)
344-4445, Attention: General Counsel; if sent to the Company,
such notice shall be mailed, delivered, telegraphed (and
confirmed by letter) or telecopied (and confirmed by letter) to
Medley Credit Acceptance Corp., 00000 X.X. South River Drive,
Miami, Florida 33178, telecopier number (000) 000-0000,
Attention: Xxxxxx X. Xxxxx, Chief Executive Officer;
12. Parties. This Agreement shall inure to the benefit of
-------
and be binding upon the Underwriters and the Company and their
respective executors, administrators, successors and assigns.
Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person or entity, other than the
parties hereto and their respective executors, administrators,
successors and assigns, and the controlling persons within the
meaning of the Act or the Exchange Act, officers and directors
referred to in Section 8 hereof, any legal or equitable right,
remedy or claim in respect of this Agreement or any provisions
herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and
exclusive benefit of the parties hereto and their respective
executors, administrators, successors and assigns and said
controlling persons and said officers and directors, and for the
benefit of no other person or entity. No purchaser of any of the
Common Stock or Warrants through the Underwriter shall be
construed a successor or assign by reason merely of such
purchase.
In all dealings with the Company under this Agreement,
you shall act on behalf of each Underwriter if there is more than
one, and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement made or given by you.
13. Applicable Law. This Agreement shall be governed by,
--------------
and construed in accordance with, the laws of the State of New
York.
14. Counterparts. This Agreement may be signed in several
------------
counterparts, each of which will constitute an original.
If the foregoing correctly sets forth the understanding
among the Company and the Underwriter, please so indicate in the
space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among the Company and the
Underwriter.
Very truly yours,
MEDLEY CREDIT ACCEPTANCE CORP.
By:
------------------------------------
Xxxxxx X. Xxxxx, President
Accepted as of the date first above written:
PCM SECURITIES LIMITED, L.P.
On their behalf and on behalf of the Qualified
Independent Underwriter
By:
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