Contract
Exhibit
2.1
X.
XXXXX-FOOD INTERNATIONAL LTD.
_________,
2010
Xxxxxx
& Xxxxxxx, LLC
As
representative of the Underwriters named in Schedule I hereto,
c/o
Rodman & Xxxxxxx, LLC
1251
Avenue of the Xxxxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
X.
Xxxxx-Food International Ltd., an Israeli corporation (“Company”), confirms its
agreement, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the “Underwriters”) an aggregate of [*] shares
of the Company’s ordinary shares, NIS 0.10 par value per share (the “Common Stock”), and, at the
election of the Underwriters in the circumstances specified in Section 2 hereto,
up to _____ additional shares of Common Stock. The ____ shares to be
sold by the Company are herein called the “Firm Shares” and the _____
additional shares to be sold by the Company are herein called the “Optional Shares.” The Firm
Shares and the Optional Shares that the Underwriter elects to purchase pursuant
to Section 2 hereof are herein collectively referred to as the “Securities.”
1. The
Company represents and warrants to, and agrees with, each of the Underwriters
that, except as set forth on the Disclosure Schedule:
(i) A
registration statement on Form F-1 (File No. 333-163223) (as amended by all
pre-effective amendments thereto, the “Initial Registration
Statement”) in respect of the Securities has been filed with the
Securities and Exchange Commission (the “Commission”). The
Initial Registration Statement and any post-effective amendment thereto have
been declared effective by the Commission; other than a registration statement,
if any, increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became effective upon filing, no other
document with respect to the Initial Registration Statement has heretofore been
filed under the Act with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has been
issued and, to the best of the Company's knowledge, no proceeding for that
purpose has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act is hereinafter called a "Preliminary Prospectus"; the
various parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and including the
information contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof and
deemed by virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective, each as amended at
the time such part of the Initial Registration Statement became effective or
such part of the Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively called the "Registration Statement"; the
Preliminary Prospectus relating to the Securities that was included in the
Registration Statement immediately prior to the Applicable Time (as defined in
Section 1(iii) hereof) is hereinafter called the "Pricing Prospectus"; such
final prospectus, in the form first filed pursuant to Rule 424(b) under the Act,
is hereinafter called the "Prospectus"; and any "issuer
free writing prospectus" as defined in Rule 433 under the Act relating to the
Securities is hereinafter called an "Issuer Free Writing
Prospectus"; all references in this Agreement to the Initial Registration
Statement, the Rule 462(b) Registration Statement, a Preliminary Prospectus, the
Pricing Prospectus and the Prospectus, or any amendments or supplements to any
of the foregoing, shall be deemed to refer to and include any documents
incorporated by reference therein (the "Incorporated Documents"), and
shall include any copy thereof filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System);
(ii) No
order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of the
Commission thereunder, and did not contain an 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, in the light of the circumstances under which
they were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an
Underwriter through Xxxxxx & Xxxxxxx, LLC expressly for use
therein.
(iii) For
the purposes of this Agreement, the "Applicable Time" is [____]
p.m. (Eastern time) on the date of this Agreement. The Pricing Prospectus, as
supplemented by the Issuer Free Writing Prospectuses, if any, listed on Schedule
II hereto, taken together as of the Applicable Time, did not include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and each Issuer Free
Writing Prospectus, if any, listed on Schedule II hereto does not conflict with
the information contained in the Registration Statement, the Pricing Prospectus
or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented
by and taken together with the Pricing Prospectus as of the Applicable Time, did
not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to statements or omissions
made in an Issuer Free Writing Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter through
Xxxxxx & Xxxxxxx, LLC expressly for use therein
(iv) The
Registration Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement or the Prospectus will conform, in
all material respects with the requirements of the Act and the rules and
regulations of the Commission thereunder, and do not and will not, as of the
applicable effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an 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 representations and
warranties set forth in the immediately preceding sentence shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through Xxxxxx
& Xxxxxxx, LLC expressly for use therein;
(v) Each
of the Incorporated Documents conformed when so filed in all material respects
to the requirements of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and the applicable rules and regulations of the Commission
thereunder and did not, as of their respective filing dates, contain an 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.
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(vi) Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Securities, did not
and does not include any information that conflicted or conflicts with the
information contained in the Registration Statement or the Prospectus, including
any document incorporated by reference therein and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded or
modified. Any Issuer Free Writing Prospectus that conflicts in the
future with the information contained in the Registration Statement or the
Prospectus shall be immediately corrected or amended as set forth in Section
6(c). The representations and warranties set forth in the immediately
preceding sentence shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through Xxxxxx & Xxxxxxx, LLC expressly for use
therein;
(vii) Neither
the Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included in or incorporated by reference
into the Pricing Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth, contemplated or incorporated by reference in the
Pricing Prospectus, except for such loss or interference as would not,
individually or in the aggregate, have a material adverse effect on the
business, prospects, operations, assets, condition (financial or otherwise),
shareholders’ equity or results of operations of the Company and its
consolidated subsidiaries taken as a whole (a “Material Adverse Effect”);
and, since the respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, (A) there has not been any
material change in the capital stock or long-term debt of the Company or any of
its subsidiaries outside of the ordinary course of business other than grants of
stock options to employees of the Company pursuant to the Company’s equity
incentive plans in the ordinary course of business and the issuance of shares of
Common Stock upon the exercise of warrants and stock options by existing
security holders of the Company in the ordinary course of business or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, prospects, operations, assets,
condition (financial or otherwise) or results of operations of the Company and
its consolidated subsidiaries taken as a whole, (B) the Company and its
subsidiaries, considered as one entity, have not incurred any material liability
or obligation, indirect, direct or contingent, not in the ordinary course of
business nor entered into any material transaction or agreement not in the
ordinary course of business; and (C) there has been no dividend or distribution
of any kind declared, paid or made by the Company or, except for dividends paid
to the Company or other subsidiaries, any of its subsidiaries on any class of
capital stock or repurchase or redemption by the Company or any of its
subsidiaries of any class of capital stock, in each case, other than as set
forth or contemplated in the Pricing Prospectus;
(viii) Except
as set forth in the Pricing Prospectus, the Company and its subsidiaries do not
own any real property. Except as set forth in the Pricing Prospectus,
the Company and its subsidiaries have good and marketable title to all personal
property owned by them, in each case free and clear of all liens, encumbrances
and defects, except such as do not materially affect the value of such property
or do not interfere with the use made and proposed to be made of such property
by the Company and its subsidiaries or would not reasonably be expected to
result in a Material Adverse Effect; and any real property and buildings held
under lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as would not reasonably
be expected to result in a Material Adverse Effect;
(ix) The
Company has been duly incorporated and is validly existing as a corporation,
under the laws of its jurisdiction of organization, without debts to the
Registrar of Companies, with corporate power and authority to own its properties
and conduct its business as described in the Pricing Prospectus, and is duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification,
except where the failure to be so qualified and in good standing in any such
jurisdiction would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect; and each subsidiary of the Company has
been duly formed, incorporated or organized and is validly existing and in good
standing under the laws of its jurisdiction of formation, incorporation or
organization and each subsidiary of the Company has been duly qualified for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified and in good standing in any such jurisdiction would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect;
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(x) All
of the issued and outstanding shares of capital stock of the Company have been
duly authorized and are validly issued, fully paid and non-assessable, and have
been issued in compliance in all material respects with all applicable federal
and state securities laws or an exemption thereto and conform in all material
respects to the description of the capital stock set forth in the Pricing
Prospectus and the Prospectus; all of the shares of capital stock of each
subsidiary of the Company have been duly authorized and are validly issued,
fully paid and non-assessable, have been issued in compliance with all
applicable U.S. federal and state securities laws, if any, or an exemption
thereto and are owned directly by the Company, free and clear of all liens,
encumbrances, equities or claims, except to such extent as would not,
individually or in the aggregate, have a Material Adverse
Effect. None of the outstanding shares of capital stock
of the Company were issued in violation of any preemptive rights, rights of
first refusal or other similar rights to subscribe for or purchase securities of
the Company. There are no authorized or outstanding options,
warrants, preemptive rights, rights of first refusal or other rights to
purchase, or equity or debt securities convertible into or exchangeable or
exercisable for, any capital stock of the Company or any of its subsidiaries
other than as set forth in the Pricing Prospectus and the
Prospectus;
(xi) This
Agreement has been duly authorized, executed and delivered by the Company, and
is a valid and binding agreement of the Company, enforceable in accordance with
its terms, except as rights to indemnification or contribution hereunder may be
limited by applicable law or the public policy underlying such law and except as
the enforcement hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles;
(xii) There
are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of the
Company or to require the Company to include such securities with the Securities
registered pursuant to the Initial Registration Statement other than as
described in the Pricing Prospectus and the Prospectus, or as have been
satisfied, or waived in writing, in connection with the offering contemplated
hereby;
(xiii) The
issue and sale of the Securities and the compliance by the Company with all of
its obligations under this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, or give rise
to a right of termination under, or result in the acceleration of any obligation
under any statute, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, except for such conflicts, breaches, defaults, violations or rights as
would not, individually or in the aggregate, have a Material Adverse Effect, nor
will such action result in any violation of (A) the charter
or by-laws or similar organizational documents of the Company or any
of its subsidiaries or (B) any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties, except in the case of clause (B)
for such violations as would not reasonably be expected to have a Material
Adverse Effect;
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(xiv) No
consent, approval, authorization, order, registration, qualification, permit,
license, exemption, filing or notice (each an “Authorization”) of, from, with
or to any court, tribunal, government, governmental or regulatory authority,
self-regulatory organization or body (each, a “Regulatory Body”) is required
for the issue and sale of the Securities by the Company or the consummation by
the Company of the transactions contemplated by this Agreement, except (A) the
registration of the Securities under the Act; (B) such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities laws in connection with the purchase and distribution of the
Securities by the Underwriter; (C) such Authorizations as may be required under
the rules and regulations of the Financial Industry Regulation Authority, Inc.
(“FINRA”); (D) such
Authorizations as may be required under the rules and regulations of The NASDAQ
Capital Market LLC; and (E) such other Authorizations the absence of which would
not, individually or in the aggregate, have a Material Adverse Effect; and no
event has occurred that has resulted in, or after notice or lapse of time or
both would reasonably be expected to result in, or would otherwise reasonably be
expected to result in revocation, suspension, termination or invalidation of any
such Authorization or any other impairment of the rights of the holder or maker
of any such Authorization;
(xv) All
corporate actions (including those of stockholders) necessary for the Company to
consummate the transactions contemplated in this Agreement have been obtained
and are in effect;
(xvi) Neither
the Company nor any of its subsidiaries is (A) in violation of its Certificate
of Incorporation or By-laws or other organizational documents or (B) in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound, except for such defaults specified under
subparagraph (B) herein that would not, individually or in the aggregate, have a
Material Adverse Effect;
(xvii) The
statements set forth in the Pricing Prospectus and the Prospectus under the
captions “Prospectus Summary” and “Description of Securities,” insofar as they
purport to constitute a summary of the terms of the Securities, and under the
caption “Underwriting”, insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate summaries of such
provisions in all material respects;
(xviii) Other
than as set forth in the Pricing Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, would reasonably be expected to, individually or in the aggregate,
have a Material Adverse Effect; and, no such proceedings are threatened or to
the Company’s knowledge contemplated by governmental authorities or threatened
by others;
(xix) There
are no statutes, regulations, contracts or other documents that are required to
be described in the Pricing Prospectus and no contracts or other documents
required to be filed or incorporated by reference as exhibits to the Initial
Registration Statement that are not described or filed or incorporated as
required except where the failure to disclose such statute, regulation, contract
or other document would not have a material adverse effect to the
Company;
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(xx) The
Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof, will not be an
“investment company”, as such term is defined in the Investment Company Act of
1940, as amended (the “Investment Company
Act”);
(xxi) At
the time of filing the Initial Registration Statement, the Company was not an
“ineligible issuer,” as defined in Rule 405 under the Act;
(xxii) Xxxxxxxxx
Almagor Zohar & Co., who have audited certain financial statements of the
Company and its subsidiaries, is an independent registered accounting firm as
required by the Act and the rules and regulations of the Commission
thereunder;
(xxiii) The
consolidated financial statements of the Company and its subsidiaries, including
all notes and schedules thereto, included in or incorporated by reference into
the Initial Registration Statement, the Pricing Prospectus and the Prospectus
present fairly the consolidated financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of income,
stockholders’ equity and cash flows of the Company and its subsidiaries for the
periods specified in conformity with generally accepted accounting principles,
consistently applied throughout the periods involved, other than as may be
expressly stated in the related notes thereto and, with respect to unaudited
periods other than routine year-end adjustments which are not material
individually or in the aggregate; no other financial statements or supporting
schedules are required to be included in the Initial Registration Statement, the
Pricing Prospectus and the Prospectus;
(xxiv) The
Company maintains a system of internal control over financial reporting (as such
term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the Company’s
principal executive officer and principal financial officer, or under their
supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles. The Company’s internal control over financial reporting
is effective and the Company is not aware of any material weaknesses in its
internal control over financial reporting;
(xxv) Since
the date of the latest audited financial statements of the Company included in
or incorporated by reference into the Pricing Prospectus, there has been no
change in the Company’s internal control over financial reporting that has
materially adversely affected, or is reasonably likely to materially adversely
affect, the Company’s internal control over financial reporting;
(xxvi) Except
as disclosed in the Initial Registration Statement, the Pricing Prospectus and
the Prospectus, the Company maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with
the requirements of the Exchange Act. Such disclosure controls and
procedures (A) are designed to ensure that material information relating to the
Company and its subsidiaries is made known to the Company’s principal executive
officer and principal financial officer by others within those entities; (B)
have been evaluated for effectiveness as of December 31, 2008; and (C) to the
knowledge of the Company are effective to perform the functions for which they
were established;
(xxvii) There
are no off-balance sheet arrangements, outstanding guarantees or other
contingent obligations of the Company that could reasonably be expected to have
a Material Adverse Effect;
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(xxviii) The
Company’s Chief Executive Officer and Chief Financial Officer have reviewed and
agreed with the selection, application and disclosure of critical accounting
policies and have consulted with the Company’s independent registered public
accounting firm with regard to such disclosure;
(xxviii) No
relationship, direct or indirect, exists between or among the Company, on the
one hand, and any director, officer, stockholder, customer, licensor or supplier
of the Company, on the other hand, which is required to be described in the
Initial Registration Statement, the Pricing Prospectus or the Prospectus and
which is not so described. There are no outstanding loans, advances
or guarantees of indebtedness by the Company to or for the benefit of any of the
executive officers or directors of the Company, except as disclosed in the
Initial Registration Statement, the Pricing Prospectus and the
Prospectus;
(xxix) To
the knowledge of the Company, no person associated with or acting on behalf of
the Company, including without limitation any director, officer, agent or
employee of the Company or its subsidiaries has, directly or indirectly, while
acting on behalf of the Company or its subsidiaries (A) used any corporate funds
for unlawful contributions, gifts, entertainment or other unlawful expenses
relating to political activity, (B) made any unlawful payment to foreign or
domestic government officials or employees or to foreign or domestic political
parties or campaigns from corporate funds, (C) violated any provision of the
Foreign Corrupt Practices Act of 1977, as amended or (D) made any other unlawful
payment;
(xxx) Except
as contemplated by this Agreement and as set forth in the Initial Registration
Statement and as set forth in the Disclosure Schedule, the Pricing Prospectus
and the Prospectus, no person is entitled to receive from the Company a
brokerage commission, finder’s fee or other like payment in connection with the
transactions contemplated herein;
(xxxi) Neither
the Company nor any of its subsidiaries or controlled affiliates does business
with the government of, or with any person located in any country in a manner
that violates in any material respect any of the economic sanctions programs or
similar sanctions-related measures of the United States as administered by the
United States Treasury Department’s Office of Foreign Assets Control; and the
net proceeds from the offering contemplated by this Agreement will not be used
to fund any operations in, finance any investments in or make any payments to
any country, or to make any payments to any person, in a manner that violates
any of the economic sanctions of the United States administered by the United
States Treasury Department’s Office of Foreign Assets Control;
(xxxii) Statistical,
industry-related and market-related data included in the Initial Registration
Statement, the Pricing Prospectus and the Prospectus are based on or derived
from sources that the Company reasonably and in good faith believes are reliable
and accurate in all material respects;
(xxxiii) The
Company has not distributed and will not distribute prior to the last Time of
Delivery (as defined in Section 4 hereof) and completion of the distribution of
the Securities, any offering material in connection with the offering and sale
of the Securities other than the Initial Registration Statement, the Pricing
Prospectus and the Prospectus or such other materials reviewed by the
Underwriter or otherwise required by applicable law;
(xxxiv) Except
as set forth in the Initial Registration Statement, the Pricing Prospectus and
the Prospectus, no material labor dispute with the employees of the Company or
any of its subsidiaries exists, or, to the knowledge of the Company, is
imminent; and the Company is not aware of any existing, threatened or imminent
labor disturbance by the employees of any of its principal suppliers,
manufacturers or contractors other than as would not reasonably be expected to
have a Material Adverse Effect;
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(xxxv) Except
as set forth in the Initial Registration Statement, the Pricing Prospectus and
the Prospectus, (A) the Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective business, other
than those the failure of which to possess would not reasonably be expected to
have a Material Adverse Effect, and (B) neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permit which,
individually or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would reasonably be expected to have a Material Adverse
Effect;
(xxxvi) The
Company and its subsidiaries (A) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”), (B) have
received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (C) are
in compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties) which
would, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect;
(xxxvii) The
Company and its subsidiaries own or possess all material patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names currently employed by
them in connection with the business now operated by them, and neither the
Company nor any of its subsidiaries has received any notice of infringement of
or conflict with asserted rights of others with respect to any of the foregoing
which, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would reasonably be expected to have a Material
Adverse Effect;
(xxxviii) The
Company and its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
customary in the businesses in which they are engaged; and neither the Company
nor any of its subsidiaries has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not have a Material Adverse
Effect;
(xxxix) None
of the Company and its subsidiaries, nor to the knowledge of the Company, any of
the Company’s or its subsidiaries’ directors, officers or controlling persons,
have taken or will take, directly or indirectly, any action designed to or that
might be reasonably expected to cause or result in stabilization or manipulation
of the price of the Common Stock to facilitate the sale or resale of the
Securities which is otherwise prohibited by Regulation M under the
Act;
(xl) Except
as disclosed in the Initial Registration Statement, the Pricing Prospectus and
the Prospectus, the Company and its subsidiaries have filed all necessary
federal and state income and franchise tax returns or have received extensions
thereof and have paid all taxes shown on such returns to be required to be paid
by any of them and, if due and payable, any related or similar assessment, fine
or penalty levied against any of them except for any assessment, fine or penalty
that is currently being contested in good faith except where failure to file
such returns or pay, or make provision to pay, all such taxes and assessments
would not reasonably be expected to have a Material Adverse
Effect. The Company has made adequate charges, accruals and reserves
in the applicable financial statements referred to in paragraph 1(a)(xxiii)
above in respect of all federal and state income and franchise taxes for all
periods as to which the tax liability of the Company or any of its subsidiaries
has not been finally determined. Except as set forth in the Initial
Registration Statement, the Pricing Prospectus and the Prospectus, the Company
has no knowledge of any tax deficiency which might be asserted against the
Company or any subsidiary which could reasonably be expected to result in a
Material Adverse Effect;
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(xli) Except
as disclosed in the Initial Registration Statement, the Pricing Prospectus and
the Prospectus, the Common Stock is registered pursuant to Section 12(b) of the
Exchange Act and is listed on The Nasdaq Capital 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 or delisting the Common
Stock from The Nasdaq Capital Market, nor has the Company received any
notification that the Commission, Nasdaq or FINRA contemplating terminating such
registration or listing;
(xlii) The
Company and its subsidiaries have no “employee benefit plan” (as defined under
the Employee Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder (collectively, “ERISA”)) established or
maintained by the Company, its subsidiaries or their “ERISA Affiliates” (as defined
below). “ERISA
Affiliate ” means, with respect to the Company or a subsidiary, any
member of any group of organizations described in Sections 414(b),(c),(m) or (o)
of the Internal Revenue Code of 1986, as amended, and the regulations and
published interpretations thereunder (the “Code”) of which the Company or
such subsidiary is a member.
(xliii) There
is and has not been any failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such, to comply with any
provision of the Sarbanes Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”),
including Section 402 related to loans and Sections 302 and 906 related to
certifications, which would have a Material Adverse Effect;
(xlvii) Except
as described in the Pricing Prospectus and the Prospectus or prior filings with
the U.S. Securities and Exchange Commission and as set forth on the Disclosure
Schedule, the Company has not made any direct or indirect payments (in cash,
securities or otherwise) to: (i) any person, as a finder’s fee, consulting fee
or otherwise, in consideration of such person raising capital for the Company or
introducing to the Company persons who raised or provided capital to the
Company; (ii) to any FINRA member; or (iii) to any person or entity that has any
direct or indirect affiliation or association with any FINRA member, within the
twelve months prior to the date hereof;.
(xlviii) None
of the net proceeds of the offering will be paid by the Company to any
participating FINRA member or its affiliates, except as specifically authorized
herein; and.
(xlix) No
officer, director or any beneficial owner of the Company’s unregistered
securities has any direct or indirect affiliation or association with any FINRA
member (as determined in accordance with the rules and regulations of FINRA)
except as set forth in the Initial Registration Statement, the Pricing
Prospectus and the Prospectus. The Company will advise Xxxxxx &
Xxxxxxx, LLC and Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP if it learns that any
officer, director or owner of at least 5% of the Company’s outstanding Common
Stock (or securities convertible into Common Stock) is or becomes an affiliate
or associated person of a FINRA member participating in the
offering.
9
2. Subject
to the terms and conditions herein set forth, (a) the Company agrees to sell to
each of the Underwriters, and each of the
Underwriters agree, severally and not
jointly, to purchase from the Company, at a purchase price per Firm Share of
$[93% of the per share offering price], the number of Firm Shares
set forth opposite its
name in Schedule I hereto and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares as provided
below, the Company agrees to sell to each of the Underwriters, and each of the
Underwriters agree, severally and not jointly, to purchase from the Company, at
the purchase price per share set forth in clause (a) of this Section 2, the
number of Optional Shares set forth opposite its name in Schedule I
hereto.
The
Company, as and to the extent indicated in Schedule I hereto, hereby grants to
the Underwriters the right to purchase at its election up to ________ shares of
Common Stock or fifteen percent (15%) of the Firm Shares sold in the offering
from the Company (the “Optional
Shares”) at the purchase price per Optional Share set forth in the
paragraph above, for the sole purpose of covering sales of shares in excess of
the number of Firm Shares. Any such election to purchase Optional
Shares may be exercised only by written notice from you to the Company, given
within a period of 30 calendar days after the date of this Agreement and setting
forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by you but in no
event earlier than the Time of Delivery or, unless you and the Company otherwise
agree in writing, earlier than two or later than ten business days after the
date of such notice.
3. Upon
the authorization by you of the release of the Firm Shares, the several
Underwriters propose to offer the Firm Shares for sale upon the terms and
conditions set forth in the Prospectus.
4. The
Company will deliver the Securities to the Underwriter against
receipt of payment of the purchase price
therefore by wire transfer of Federal (same-day) funds to the account specified
by the Company pursuant to written instructions of the Company. The
time and date of such delivery and payment shall be, with respect to the
Securities, 9:30 a.m., New York time, on
_______, 2010, or such other time and date as the Company and the Underwriter shall
agree, and upon satisfaction by the Company of all of the conditions to closing
set forth in this Agreement (the “Time of
Delivery”). If
the Underwriter so requests, delivery of the Firm Shares and Optional Shares, if
any, shall be made by credit through full fast transfer to the accounts at the
Depositary Trust Company designated by the Underwriter. The documents to be
delivered at the Time of Delivery by or
on behalf of the parties hereto pursuant to Section 6 hereof, will be delivered
at the offices of Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP (the “Closing
Location”). A meeting will be held at the Closing Location at
3:00 p.m., New York
City time, on the New York Business Day next preceding such Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, “New York Business Day” means any day
other than a Saturday, a Sunday or a legal holiday or a day on which banking
institutions are authorized or obligated by law to close in New York City. The Company
acknowledges and agrees that (i) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the several Underwriters, on the other, (ii) in
connection therewith and with the process leading to such transaction each
Underwriter is acting solely as a principal and not the agent or fiduciary of
the Company, (iii)
no Underwriter has assumed a fiduciary responsibility in favor of the Company
with respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently
advising the Company on other matters) or any other obligation to the Company
except the obligations expressly set forth in this Agreement and
(iv) the Company has consulted its own legal and financial advisors
to the extent it deemed appropriate. The Company agrees that it will
not claim that the Underwriter owes a fiduciary or
similar duty to the Company, in connection with such transaction or the process
leading thereto.
10
This
Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company, on the one hand, and the Underwriters, or any of
them, on the other, with respect to the subject matter hereof.
The
Company and each of the Underwriters hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
5. The
Company agrees with each of the Underwriters:
(a) To
prepare the Prospectus in a form reviewed by you and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commission’s close of
business on the second business day following the execution and delivery of this
Agreement; or, if applicable, such earlier time as may be required by Rule
430(a)(3) under the Act; to make no further amendment or any supplement to the
Registration Statement or the Prospectus prior to the Time of Delivery which
shall not be reviewed by you promptly after reasonable notice thereof; to advise
you, promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and to
furnish you with copies thereof (including copies of any Incorporated
Documents); to file promptly all material required to be filed by the Company
with the Commission pursuant to Rule 433(d) under the Act; to advise you,
promptly after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
preliminary prospectus or other prospectus in respect of the Securities, of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, of the receipt of any notification with respect to the suspension
of the shares of Common Stock for quotation on The NASDAQ Capital Market, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending the use
of any preliminary prospectus or other prospectus or suspending any such
qualification, to promptly use its best efforts to obtain the withdrawal of such
order; if required by Rule 430B(h) under the Act, to prepare a form of
prospectus in a form approved by you and to file such form of prospectus
pursuant to Rule 424(b) under the Act not later than may be required by Rule
424(b) under the Act, and to make no further amendment or supplement to such
form of prospectus which shall not be reviewed by you promptly after reasonable
notice thereof;
(b) Promptly
from time to time to take such action as you may reasonably request to qualify
the Securities for offering and sale under the securities laws of such
jurisdictions as you may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of the Securities, provided
that in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction;
11
(c) Prior
to 10:00 A.M., New York City time, on the New York Business Day next succeeding
the date of this Agreement and from time to time, to furnish the Underwriters
with written and electronic copies of the Prospectus in New York City in such
quantities as you may reasonably request (including copies of any Incorporated
Documents), and, if the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is required at any time prior to the
expiration of three months after the time of issue of the Prospectus in
connection with the offering or sale of the Securities and if at such time any
events shall have occurred as a result of which, in the opinion of counsel to
the Company, the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus in order to comply with the Act, to notify you and
upon your request to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many written and electronic copies as you may
from time to time reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or effect such
compliance (including copies of any Incorporated Documents), and in case any
Underwriter is required to deliver a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) in connection with sales of any of the
Securities at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter, to prepare
and deliver to such Underwriter as many written and electronic copies as you may
request of an amended or supplemented Prospectus complying with Section 10(a)(3)
of the Act (including copies of any Incorporated Documents);
(d) To
make generally available to its securityholders as soon as practicable, but in
any event not later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act), an earning
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule
158);
(e) During
a period of three years from the effective date of the Registration Statement,
unless otherwise publicly available in electronic format on the website of the
Company or filed with the Commission, to furnish to its shareholders as soon as
practicable after the end of each fiscal year an annual report (including a
balance sheet and statements of income, stockholders’ equity and cash flows of
the Company and its consolidated subsidiaries certified by independent public
accountants) in accordance with federal securities laws to the extent
applicable;
(f) During
a period of three years from the effective date of the Registration
Statement, unless otherwise publicly available in electronic format on the
website of the Company or filed with the Commission, to furnish to you copies of
all reports or other communications (financial or other) furnished to
stockholders, and to make available to you as soon as they are available, copies
of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange or quotation system on which any
class of securities of the Company is listed or quoted (unless such reports and
financial statements are otherwise confidential, such as confidential treatment
requests);
(g) During
a period of three years from the effective date of the Registration Statement,
to maintain, at its expense, a registrar and transfer agent for the Common
Stock;
(h) To
use the net proceeds received by it from the sale of the Securities pursuant to
this Agreement in the manner specified in the Pricing Prospectus and the
Prospectus under the caption “Use of Proceeds”;
12
(i) If
the Company elects to rely upon Rule 462(b), the Company shall file a Rule
462(b) Registration Statement with the Commission in compliance with Rule 462(b)
by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the
Company shall at the time of filing either pay to the Commission the filing fee
for the Rule 462(b) Registration Statement or give irrevocable instructions for
the payment of such fee pursuant to Rule 111(b) under the Act;
(j) To
refrain from taking at any time, directly or indirectly, any action designed or
that might reasonably be expected to cause or result in, or that will
constitute, stabilization of the price of the shares of any security of the
Company; and; and
(k) The
Company and its subsidiaries will comply, in all material respects, with all
effective applicable provisions of the Xxxxxxxx-Xxxxx Act.
6. (a)
The Company represents and agrees that, without the prior consent of Xxxxxx
& Xxxxxxx, LLC, it has not made and will not make any offer
relating to the Securities that would constitute a “free writing prospectus” as
defined in Rule 405 under the Act; each Underwriter represents and agrees that,
without the prior consent of the Company and Xxxxxx & Xxxxxxx, LLC, it has
not made and will not make any offer relating to the Securities that would
constitute a free writing prospectus; any such free writing prospectus the use
of which has been consented to by the Company and Xxxxxx & Xxxxxxx, LLC is
listed on Schedule II hereto;
(b) The
Company and each Underwriter has complied and will comply with the requirements
of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus,
including timely filing with the Commission or retention where required and
legending; and the Company represents that it has satisfied and agrees that it
will satisfy the conditions under Rule 433 under the Act to avoid a requirement
to file with the Commission any electronic road show;
(c) The
Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free
Writing Prospectus would conflict with the information in the Registration
Statement, the Pricing Prospectus or the Prospectus or would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to
Xxxxxx & Xxxxxxx, LLC and, if requested by Xxxxxx & Xxxxxxx, LLC, will
prepare and furnish without charge to each Underwriter an Issuer Free Writing
Prospectus or other document which will correct such conflict, statement or
omission; provided, however, that this representation and warranty shall not
apply to any statements or omissions in an Issuer Free Writing Prospectus made
in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through Xxxxxx & Xxxxxxx, LLC expressly for use
therein.
(d) Each
underwriter represents that it is not subject to any pending proceeding under
Section 8A of the Securities Act with respect to the Offering (and will promptly
notify the Company if any such proceeding against it is initiated).
(e) Whether
or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company covenants and agrees with the Underwriters that the Company will pay or
cause to be paid the following: (i) all filing fees and communication expenses
relating to the registration of the Shares to be sold in the Offering (including
the Over-allotment Shares) with the Commission; (ii) all COBRADesk filing fees
associated with the review of the Offering by FINRA; all fees and expenses
relating to the listing of such Shares on the Nasdaq Capital Market, the Nasdaq
National Market or the NYSE Amex and on such other stock exchanges as the
Company and Xxxxxx together determine; (iii) all fees, expenses and
disbursements relating to the registration, qualification or exemption of such
Shares under the securities laws of such foreign jurisdictions as Xxxxxx and the
Company together determine; (iv) the costs of preparing, printing and delivering
certificates representing the Shares; (v) fees and expenses of the transfer
agent for the Common Stock; (vi) stock transfer and/or stamp taxes, if any,
payable upon the transfer of securities from the Company to Xxxxxx; (vii) the
fees and expenses of the Company’s accountants; and (viii) the fees and expenses
of the Company’s legal counsel and other agents and representatives.
13
(f) The
obligations of the Underwriter hereunder, as to the
Securities to be delivered at the Time of Delivery, shall be
subject to the condition that all representations and warranties and other
statements of the Company herein are, at and as of the Time of Delivery, true and
correct (except for such representations and warranties that are qualified by
materiality, which shall be true and correct as so qualified), subject to
immaterial exceptions which in the aggregate do not and are not likely to have a
material adverse effect on the Company’s business, operations or assets, the
condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional
conditions:
a. The
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 5(a)
hereof; all material required to be filed by the Company pursuant to Rule 433(d)
under the Act shall have been filed with the Commission within the applicable
time period prescribed for such filing by Rule 433; no stop order suspending the
effectiveness of the Initial Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and no stop order suspending or preventing the use
of the Prospectus or any Issuer Free Writing Prospectus shall have been
initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to your
reasonable satisfaction;
x. Xxxxxxxxxx
& Xxxxx LLP, U.S. counsel for the Company, shall have furnished to you their
written opinion, dated the Time of Delivery, in the form attached as Annex I(a)
hereto;
c. M.
Firon & Co., Israeli counsel for the Company, shall have furnished to you
their written opinion, dated the Time of Delivery, in the form attached as Annex
II(a) hereto;
d. On
the date of the Prospectus at a time prior to the execution of this Agreement,
and also at the Time of Delivery, Xxxxxxxxx Almagor Zohar & Co. shall have
furnished to you a letter, dated the date of delivery thereof, in form and
substance satisfactory to you and substantially in the form delivered
to you prior to the date hereof, containing statements and information of the
type ordinarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statements, and with respect to certain financial
information, contained in the Registration Statement, the Pricing Prospectus and
the Prospectus; provided that the letter delivered at the Time of Delivery shall
use a “cut-off date” not earlier than three days prior to the date
hereof;
e. (i)
Neither the Company nor any of its subsidiaries shall have sustained since the
date of the latest audited financial statements filed with the Commission as
part of the Registration Statement and included in the Pricing Prospectus and
the Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Pricing Prospectus, and (ii) since the respective
dates as of which information is given in the Pricing Prospectus there shall not
have been any change in the capital stock or long-term debt of the Company or
any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the business, operations, assets, condition
(financial or otherwise) or results of operations of the Company and its
consolidated subsidiaries, otherwise than as set forth or contemplated in the
Pricing Prospectus and the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), would be reasonably likely
to have a material and adverse effect on the Company’s business,
operations, assets, condition (financial or otherwise), results of operations or
prospects of the Company such that it would in the judgment of Xxxxxx &
Xxxxxxx, LLC, make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities being
delivered at such Time of Delivery on the terms and in the manner contemplated
in the Pricing Prospectus and the Prospectus;
14
f. On
or after the Applicable Time there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally on
the New York Stock Exchange or on The NASDAQ Capital Market;
(ii) a suspension or material limitation in trading in the Company’s securities
on The NASDAQ
Capital Market; (iii) a general
moratorium on commercial banking activities declared by either Federal or New
York or Israeli authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv) the
outbreak or escalation of hostilities involving the United States or Israel or
the declaration by the United States or Israel of a national emergency or war or
(v) the occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States, Israel or
elsewhere, if the effect of any such event specified in clause (iv) or (v) in
your judgment makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities being delivered at such Time of
Delivery on the terms and in the manner contemplated in the
Prospectus;
g. The
Firm Shares and Optional Shares, if any, to be sold at the Time of Delivery
shall have been duly listed for quotation on The NASDAQ Capital Market
and the Company shall have complied with all obligations of The NASDAQ Capital
Market relating to the sale of the Securities;
h. The
Company shall have complied with the provisions of Section 5(c) hereof with
respect to the furnishing of prospectuses on the New York Business Day next
succeeding the date of this Agreement;
i. The
Company shall have furnished or caused to be furnished to you at the Time of
Delivery certificates of officers of the Company satisfactory to you as to the
accuracy of the representations and warranties of the Company herein at and as
of such Time of Delivery, as to the performance by the
Company of all of its respective obligations hereunder to be
performed at or prior to the Time of Delivery, and as to such other matters as
you may reasonably request, and the Company shall have furnished or caused to be
furnished certificates as to the matters set forth in subsections (a) and (d) of
this Section;
j. FINRA
shall have raised no objection to the fairness and reasonableness of the
underwriting terms and arrangements;
l. On
or prior to the Closing Date, Willi-Food Investments Ltd. shall have entered
into a lock-up agreement with Xxxxxx & Xxxxxxx, LLC, in form acceptable to
Xxxxxx & Xxxxxxx, LLC pursuant to which such persons shall agree not to sell
any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for shares of Common Stock, subject to certain exceptions, for a
period of not less than 180 days from the date of this prospectus without the
prior written consent of Xxxxxx & Xxxxxxx, LLC, as representatives of the
underwriters.
15
7. (a)
The Company will indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of either Section 15 of
the Act or Section 20 of the Exchange Act from and against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter or
controlling person may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
any Prospectus or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or arise out of an untrue statement or alleged untrue statement of a
material fact included in any Preliminary Prospectus, the Pricing Prospectus,
any Issuer Free Writing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Incorporated Documents or the omission or alleged
omission therefrom of 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 or (ii) any inaccuracy in the representations and
warranties of the Company contained herein or any failure of the Company to
perform its obligations hereunder or under the law in connection with the
transactions contemplated by this Agreement, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement, or any
Preliminary Prospectus, the Pricing Prospectus, any Issuer Free Writing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any
Incorporated Documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Xxxxxx &
Xxxxxxx, LLC expressly for use therein.
With
respect to any untrue statement or omission or alleged untrue statement or
omission made in the Preliminary Prospectus, the indemnity agreement contained
in this paragraph shall not inure to the benefit of any Underwriter to the
extent that any loss, liability, claim, damage or expense of such Underwriter
results from the fact that a copy of the Prospectus was not given or sent to the
person asserting any such loss, liability, claim or damage at or prior to the
written confirmation of sale of the Securities to such person as required by the
Securities Act and the Rules and regulations, and if the untrue statement or
omission has been corrected in the Prospectus, unless such failure to deliver
the Prospectus was a result of non-compliance by the Company with its
obligations hereunder.
(b)
Each Underwriter will indemnify and hold harmless the Company and each person,
if any, who controls the Company within the meaning of either Section 15 of the
Act or Section 20 of the Exchange Act from and against any losses, claims,
damages or liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or the omission or
alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arise out of an
untrue statement or alleged untrue statement of a material fact included in any
Preliminary Prospectus, the Pricing Prospectus, any Issuer Free Writing
Prospectus or the Prospectus, or any amendment or supplement thereto, or the
omission or alleged omission therefrom of 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, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, or any Preliminary Prospectus, the Pricing Prospectus, any Issuer
Free Writing Prospectus or the Prospectus, or any amendment or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through Xxxxxx & Xxxxxxx, LLC expressly
for use therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
16
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party except to the
extent such indemnifying party has been materially prejudiced by such
failure. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d)
If the indemnification provided for in this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Securities. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriters on the other and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), the
Underwriters shall not be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
17
(e)
The obligations of the Company under this Section 7 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 7 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his or her consent, is named in the Registration Statement as about to
become a director of the Company) and to each person, if any, who controls the
Company within the meaning of the Act.
8. (a) If any
Underwriter shall default in its obligation to purchase the Securities which it
has agreed to purchase hereunder at a Time of Delivery, you may in your
discretion arrange for you or another party or other parties to purchase such
Securities on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such
Securities, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to you
to purchase such Securities on such terms. In the event that, within the
respective prescribed periods, you notify the Company that you have so arranged
for the purchase of such Securities, or the Company notifies you that it has so
arranged for the purchase of such Securities, you or the Company shall have the
right to postpone a Time of Delivery for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in your
opinion may thereby be made necessary. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Securities.
(b) If,
after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in
subsection (a) above, the aggregate number of such Securities which remains
unpurchased does not exceed one-eleventh of the aggregate number of all the
Securities to be purchased at such Time of Delivery, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the number of
Securities which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Securities which such
Underwriter agreed to purchase hereunder) of the Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
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(c) If,
after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in
subsection (a) above, the aggregate number of such Securities which remains
unpurchased exceeds one-eleventh of the aggregate number of all of the
Securities to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Securities of a defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6 hereof and
the indemnity and contribution agreements in Section 7 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
9. The
respective indemnities, agreements, representations, warranties and other
statements of the Company and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter, or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities..
10. If
this Agreement shall be terminated pursuant to Section 8 hereof, the Company
shall not then be under any liability to any Underwriter except as provided in
Sections 8 and 9 hereof; but, if for any other reason any Securities are not
delivered by or on behalf of the Company as provided herein, the Company will
reimburse the Underwriters through you for all expenses set forth in Section
6(e) above.
11. In
all dealings hereunder, you shall act on behalf of each of the Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by you
jointly or by Xxxxxx & Xxxxxxx, LLC on behalf of you as the
representatives. All statements, requests, notices and agreements
hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to you as the representatives in care
of:
Xxxxxx
and Xxxxxxx, LLC
0000
Xxxxxx xx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: General
Counsel
Fax No.:
000.000.0000
Copy
to:
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx Xxxxxxxxx, Esq.
Fax:
000.000.0000
; and if
to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary with a copy to counsel named
in the Registration Statement. Any such statements, requests, notices
or agreements shall take effect upon receipt thereof.
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12. This
Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters and the Company and, to the
extent provided in Sections 10 and 11 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from any Underwriter
shall be deemed a successor or assign by reason merely of such
purchase.
13. Waiver,
etc. The failure of any of the parties hereto to at any time enforce
any of the provisions of this Agreement shall not be deemed or construed to be a
waiver of any such provision, nor to in any way effect the validity of this
Agreement or any provision hereof or the right of any of the parties hereto to
thereafter enforce each and every provision of this Agreement. No
waiver of any breach, non-compliance or non-fulfillment of any of the provisions
of this Agreement shall be effective unless set forth in a written instrument
executed by the party or parties against whom or which enforcement of such
waiver is sought; and no waiver of any such breach, non-compliance or
non-fulfillment shall be construed or deemed to be a waiver of any other or
subsequent breach, non-compliance or non-fulfillment.
14. Governing
Law. This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of New York, without giving effect to
conflict of laws. The Company hereby agrees that any action,
proceeding or claim against it arising out of, or relating in any way to this
Agreement shall be brought and enforced in the courts of the State of New York
of the United States of America for the Southern District of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company hereby waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenient
forum. Any such process or summons to be served upon the Company may
be served by transmitting a copy thereof by registered or certified mail, return
receipt requested, postage prepaid, addressed to it at the address set forth in
Section 13 hereof. Such mailing shall be deemed personal service and
shall be legal and binding upon the Company in any action, proceeding or
claim. The Company agrees that the prevailing party(ies) in any such
action shall be entitled to recover from the other party(ies) all of its
reasonable attorneys’ fees and expenses relating to such action or proceeding
and/or incurred in connection with the preparation therefore.
15. This
Agreement may be executed by any one or more of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
16. Notwithstanding
anything herein to the contrary, the Company is authorized to disclose to any
persons the U.S. federal and state income tax treatment and tax structure of the
potential transaction contemplated by this Agreement and all materials of any
kind (including tax opinions and other tax analyses) provided to the Company
relating to that treatment and structure, without any Underwriter imposing any
limitation of any kind. However, any information relating to the tax
treatment and tax structure shall remain confidential (and the foregoing
sentence shall not apply) to the extent necessary to enable any person to comply
with securities laws. For this purpose, “tax structure” is limited to
any facts that may be relevant to that treatment.
17. This
Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company, on the one hand, and the Underwriters, on the other, with respect
only to the firm commitment registered offering of the Securities referenced
herein.
[Signature Page Follows]
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If the
foregoing is in accordance with your understanding, please sign and return to us
one for the Company and each of the Representatives plus one for each counsel,
of any counterparts hereof, and upon the acceptance hereof by you, on behalf of
each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters and the
Company.
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Very
truly yours,
X.XXXXX-FOOD
INTERNATIONAL LTD.
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By:
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Name
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Title
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Accepted
as of the date hereof at New York, New York
Xxxxxx & Xxxxxxx, LLC, on
behalf of each of the Underwriters
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By:
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Name
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Title
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(Signature Page to Underwriting Agreement)
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