8,600,000 Shares
NBTY, INC.
Common Stock
UNDERWRITING AGREEMENT
----------------------
June 30, 1998
XXXXX XXXXXX INC.
XXXXXX BROTHERS INC.
XXXXX, XXXXXXXX & XXXX, INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXX XXXXXXX INC.
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
NBTY, Inc., a Delaware corporation (the "Company"), and the
Persons named in Schedule II hereto (the "Selling Stockholders"), propose to
sell to the underwriters named in Schedule I hereto (the "Underwriters"), for
whom you (the "Representatives") are acting as representatives, 8,600,000 shares
of Common Stock, par value $.008 per share ("Common Stock"), of the Company
(said shares to be issued and sold by the Company and shares to be sold by the
Selling Stockholders collectively being hereinafter called the "Firm Shares").
The Company and the Selling Stockholders also propose to grant to the
Underwriters an option to purchase up to 1,290,000 additional shares of Common
Stock (the "Additional Shares"; the Additional Shares, together with the Firm
Shares, being hereinafter called the "Shares"). To the extent there are no
additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires.
1. Registration Statement and Prospectus. The Company has
filed with the Securities and Exchange Commission (the "Commission") a
registration statement (file number 333-52251) on Form S-3, including related
preliminary Prospectus, for the registration under the Securities Act of 1933,
as amended (the" Act") of the offering and sale of the Shares. The Company may
have filed one or more amendments thereto, including the related preliminary
Prospectus, each of which has previously been furnished to you. The Company will
next file with the Commission either (A) prior to the Effective Date of such
registration statement, a further amendment to such registration statement
(including the form of final prospectus) or (B) after the Effective Date of such
registration statement, the final Prospectus in accordance with Rules 430A and
424(b)(1), (3) or (4). In the case of clause (B), the Company has included in
such registration statement, as amended at the Effective Date, all information
(other than, at the option of the Company, information permitted to be omitted
pursuant to Rule 430A Information) required by the Act and the rules thereunder
to be included in such
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registration statement and the Prospectus. As filed, such amendment and form of
final prospectus, or such final prospectus (the "Registration Statement"), shall
contain all Rule 430A information, together with all other such required
information, and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the date and time that this Agreement is executed and
delivered by the parties hereto (the "Execution Time") or, to the extent not
completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the latest Prepricing
Prospectus) as the Company has advised you, prior to the Execution Time, will be
included or made therein. For the purposes of this Agreement, "Effective Date"
means each date and time that the Registration Statement, any post-effective
amendment or amendments thereto and any registration statement filed pursuant to
Rule 462(b) relating to the offering covered by the initial registration
statement became or become effective. The term "Prospectus" as used in this
Agreement means the prospectus in the form included in the Registration
Statement, or, if the prospectus included in the Registration Statement omits
information in reliance on Rule 430A under the Act and such information is
included in a prospectus filed with the Commission pursuant to Rule 424(b) under
the Act, the term "Prospectus" as used in this Agreement means the prospectus in
the form included in the Registration Statement as supplemented by the addition
of the Rule 430A information contained in the prospectus filed with the
Commission pursuant to Rule 424(b). As used herein, the "Prepricing Prospectus"
shall mean any preliminary prospectus with respect to the offering of the Shares
referred to herein and any preliminary prospectus with respect to the offering
of the Shares included in the Registration Statement at the Effective Date that
omits information permitted to be omitted pursuant to Rule 430A; and the
Prepricing Prospectus. Any reference in this Agreement to the registration
statement, the Registration Statement, any Prepricing Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act. As used herein,
the term "Incorporated Documents" means the documents which are incorporated by
reference into the registration statement, the Registration Statement, any
Prepricing Prospectus, the Prospectus, or any amendment or supplement thereto.
For the purposes of this Agreement, "Rule 424," "Rule 430A" and "Rule 462" refer
to such rules under the Act.
2. Agreements to Sell and Purchase. Subject to such
adjustments as the Underwriters may determine in order to avoid fractional
shares, the Company hereby agrees, subject to all the terms and conditions set
forth herein, to issue and sell to each Underwriter and, upon the basis of the
representations, warranties and agreements of the Company and the Selling
Stockholders herein contained and subject to all the terms and conditions set
forth herein, each Underwriter agrees, severally and not jointly, to purchase
from the Company, at a purchase price of $18.00 per share (the "purchase price
per share"), the number of Firm Shares which bears the same proportion to the
aggregate number of Firm Shares to be issued and sold by the Company as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto (or such number of Firm Shares increased as set forth in
Section 13 hereof) bears to the aggregate number of Firm Shares to be sold by
the Company and the Selling Stockholders.
Subject to such adjustments as you may determine in order to
avoid fractional shares, each Selling Stockholder agrees, subject to all the
terms and conditions set forth herein, to sell to each Underwriter and, upon the
basis of the representations, warranties and agreements of the Company and the
Selling Stockholders herein contained and subject to all the terms and
conditions set forth herein, each Underwriter, severally and not jointly, agrees
to purchase from each Selling Stockholder at the purchase price per share that
number of Firm Shares which bears the same proportion to the number of Firm
Shares to be sold by such Selling Stockholder as the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto (or such number
of Firm Shares increased as set forth in Section 13 hereof) bears to the
aggregate number of Firm Shares to be sold by the Company and the Selling
Stockholders.
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The Company also agrees, subject to all the terms and
conditions set forth herein, to sell to each Underwriter, and, upon the basis of
the representations, warranties and agreements of the Company and the Selling
Stockholders herein contained and subject to all the terms and conditions set
forth herein, each Underwriter shall have the right to purchase from the
Company, at the purchase price per share, pursuant to an option (the
"over-allotment option") which may be exercised at any time and from time to
time prior to 9:00 P.M., New York City time, on the 30th day after the date of
the Prospectus (or, if such 30th day shall be a Saturday or Sunday or a holiday,
on the next business day thereafter when the NASDAQ National Market is open for
trading), up to an aggregate of 450,000 Additional Shares from the Company.
Additional Shares may be purchased only for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. Upon
any exercise of the over-allotment option, each Underwriter, severally and not
jointly, agrees to purchase from the Company the number of Additional Shares
(subject to such adjustments as the Underwriter may determine in order to avoid
fractional shares) which bears the same proportion to the number of Additional
Shares to be sold by the Company as the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule I hereto (or such number of Firm Shares
increased as set forth in Section 14 hereof) bears to the aggregate number of
Firm Shares to be sold by the Company and the Selling Stockholders.
The Selling Stockholders also agree, subject to all the terms
and conditions set forth herein, to sell to each Underwriter, and, upon the
basis of the representations, warranties and agreements of the Company and the
Selling Stockholders herein contained and subject to all the terms and
conditions set forth herein, each Underwriter shall have the right to purchase
from the Selling Stockholders, at the purchase price per share, pursuant to an
option (the "over-allotment option") which may be exercised at any time and from
time to time prior to 9:00 P.M., New York City time, on the 30th day after the
date of the Prospectus (or, if such 30th day shall be a Saturday or Sunday or a
holiday, on the next business day thereafter when the NASDAQ National Market is
open for trading), up to an aggregate of 840,000 Additional Shares from the
Selling Stockholders. Additional Shares may be purchased only for the purpose of
covering over-allotments made in connection with the offering of the Firm
Shares. Upon any exercise of the over-allotment option, each Underwriter,
severally and not jointly, agrees to purchase from the Selling Stockholders the
number of Additional Shares (subject to such adjustments as the Underwriter may
determine in order to avoid fractional shares) which bears the same proportion
to the number of Additional Shares to be sold by such Selling Stockholder as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto (or such number of Firm Shares increased as set forth in
Section 13 hereof) bears to the aggregate number of Firm Shares to be sold by
the Company and the Selling Stockholders.
Certificates in transferable form for the Shares (including
any Additional Shares) that each of the Selling Stockholders agrees to sell
pursuant to this Agreement have been placed in custody with the Company as
custodian (the "Custodian") for delivery under this Agreement pursuant to the
custody agreement (the "Custody Agreement") executed by each of the Selling
Stockholders. Each Selling Stockholder agrees that (i) the Shares represented by
the certificates held in custody pursuant to the Custody Agreement are subject
to the interests of the Underwriters, the Company and each other Selling
Stockholder, (ii) the arrangements made by the Selling Stockholders for such
custody are, except as specifically provided in the Custody Agreement,
irrevocable, and (iii) the obligations of the Selling Stockholders hereunder and
under the Custody Agreement shall not be terminated by any act of such Selling
Stockholder or by operation of law, whether by the death or incapacity of any
Selling Stockholder or the occurrence of any other event or, if the Selling
Stockholder is not a natural person, upon any dissolution, winding up,
distribution of assets or other event affecting the legal existence of such
Selling Stockholder. If any Selling Stockholder shall die or be incapacitated or
if any other event shall occur before the delivery of the Shares hereunder or if
the Selling Stockholder is not a natural person, shall dissolve, wind up,
distribute assets or if any other event affecting the legal existence of such
Selling Stockholder shall occur before the delivery of the Shares hereunder,
certificates for the Shares of such Selling Stockholder
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shall be delivered to the Underwriters by the Custodian in accordance with the
terms and condition of this Agreement and the Custody Agreement as if such death
or incapacity, dissolution, winding, distribution of assets or other event had
not occurred, regardless of whether or not the Custodian or any Underwriter
shall have received notice of such death, incapacity, dissolution, winding up or
distribution of assets or other event. The Custodian is authorized, on behalf of
each of the respective Selling Stockholders, to make delivery of the
certificates for such Shares and to take such other action as may be necessary
or desirable in connection with the transactions contemplated by this Agreement.
The Custodian agrees to perform its duties under the Custody Agreement.
3. Terms of Public Offering. The Company and the Selling
Stockholders have been advised by you that the Underwriters propose to make a
public offering of their respective portions of the Shares as soon after the
Registration Statement and this Agreement have become effective as in your
judgment is advisable and initially to offer the Shares upon the terms set forth
in the Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to
the Underwriters of and payment for the Firm Shares shall be made at the office
of Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M.,
New York City time, on July 7, 1998 (the "Closing Date"). The place of closing
for the Firm Shares and the Closing Date may be varied by agreement among the
Representatives, the Company and the Selling Stockholders.
Each Selling Stockholder will pay all applicable state
transfer taxes, if any, involved in the transfer to the several Underwriters of
the Shares to be purchased by them from such Selling Stockholder and the
respective Underwriters will pay any additional stock transfer taxes involved in
further transfers.
Delivery to the Underwriters of and payment for any
Additional Shares to be purchased by the Underwriters shall be made at the
aforementioned office of Xxxxx Xxxxxx Inc. at such time on such date (the
"Option Closing Date"), which may be the same as the Closing Date but shall in
no event be earlier than the Closing Date nor earlier than two nor later than
ten business days after the giving of the notice hereinafter referred to, as
shall be specified in a written notice from you on behalf of the Underwriters to
the Company and the Selling Stockholders of the Underwriters' determination to
purchase a number, specified in such notice, of Additional Shares. The place of
closing for any Additional Shares and the Option Closing Date for such Shares
may be varied by agreement among you, the Company and the Selling Stockholders.
Certificates for the Firm Shares and for any Additional
Shares to be purchased hereunder shall be registered in such names and in such
denominations as you shall request prior to 9:30 A.M., New York City time, on
the second business day preceding the Closing Date or any Option Closing Date,
as the case may be. Such certificates shall be made available to you in New York
City for inspection and packaging not later than 9:30 A.M., New York City time,
on the business day next preceding the Closing Date or the Option Closing Date,
as the case may be. The certificates evidencing the Firm Shares and any
Additional Shares to be purchased hereunder shall be delivered to you on the
Closing Date or the Option Closing Date, as the case may be, against payment of
the purchase price therefor in immediately available funds.
5. Offering by the Underwriters. It is understood that the
several Underwriters propose to offer the Shares for sale to the public as set
forth in the Prospectus.
6. Agreements of the Company. The Company agrees with the
several Underwriters as follows:
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(a) If, at the time this Agreement is executed and delivered, it
is necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the Company will endeavor to cause the Registration Statement or
such post-effective amendment to become effective as soon as possible and
will advise you promptly and, if requested by you, will confirm such advice
in writing, when it receives notice that the Registration Statement or such
post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of any request by the Commission
for amendment of or a supplement to the Registration Statement, any
Prepricing Prospectus or the Prospectus or for additional information; (ii)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction or the
initiation of any proceeding for such purpose; and (iii) within the period
of time referred to in paragraph (f) below, of any change in the Company's
condition (financial or other), business, prospects, properties, net worth
or results of operations, or of the happening of any event, which makes any
statement of a material fact made in the Registration Statement or the
Prospectus (as then amended or supplemented) untrue or which requires the
making of any additions to or changes in the Registration Statement or the
Prospectus (as then amended or supplemented) in order to state a material
fact required by the Act or the regulations thereunder to be stated therein
or necessary in order to make the statements therein not misleading, or of
the necessity to amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Act or any other law. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge, (i) six
signed copies of the registration statement as originally filed with the
Commission and of each amendment thereto, including financial statements and
all exhibits to the registration statement, (ii) such number of conformed
copies of the registration statement as originally filed and of each
amendment thereto, but without exhibits, as you may request, (iii) such
number of copies of the Incorporated Documents, without exhibits, as you may
request, and (iv) six copies of the exhibits to the Incorporated Documents.
(d) The Company will not (i) file any amendment to the
Registration Statement or make any amendment or supplement to the Prospectus
of which you shall not previously have been advised or to which you shall
object after being so advised or (ii) so long as, in the opinion of counsel
for the Underwriters, a Prospectus is required to be delivered in connection
with sales by any Underwriter or dealer, file any information, documents or
reports pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") without delivering a copy of such information, documents or
reports to you as representatives of the Underwriters, prior to or
concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you have
requested, copies of the form of the Prepricing Prospectus. The Company
consents to the use, in accordance with the provisions of the Act and with
the securities or Blue Sky laws of the jurisdictions in which the Shares are
offered by the several Underwriters and by dealers, prior to the date of the
Prospectus, of each Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the opinion
of counsel for the Underwriters a prospectus is re-
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quired by the Act to be delivered in connection with sales by any
Underwriter or dealer, the Company will expeditiously deliver to each
Underwriter and each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as you may request.
The Company consents to the use of the Prospectus (and of any amendment or
supplement thereto) in accordance with the provisions of the Act and with
the securities or Blue Sky laws of the jurisdictions in which the Shares are
offered by the several Underwriters and by all dealers to whom Shares may be
sold, both in connection with the offering and sale of the Shares and for
such period of time thereafter as the Prospectus is required by the Act to
be delivered in connection with sales by any Underwriter or dealer. If
during such period of time any event shall occur that in the judgment of the
Company or in the opinion of counsel for the Underwriters is required to be
set forth in the Prospectus (as then amended or supplemented) or should be
set forth therein in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it is
necessary to supplement or amend the Prospectus to comply with the Act or
any other law, the Company will forthwith prepare and, subject to the
provisions of paragraph (d) above, file with the Commission an appropriate
supplement or amendment thereto, and will expeditiously furnish to the
Underwriters and dealers a reasonable number of copies thereof. In the
event that the Company and you, as Representatives of the several
Underwriters, agree that the Prospectus should be amended or supplemented,
the Company, if requested by you, will promptly issue a press release
announcing or disclosing the matters to be covered by the proposed amendment
or supplement.
(g) The Company will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers
under the securities or Blue Sky laws of such jurisdictions as you may
designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action which would subject it to service of process in suits,
other than those arising out of the offering or sale of the Shares, in any
jurisdiction where it is not now so subject.
(h) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited,
covering a twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months thereafter, as
soon as practicable after the end of such period, which consolidated
earnings statement shall satisfy the provisions of Section ll(a) of the Act.
(i) During the period of three years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the
Company mailed to stockholders or filed with the Commission and (ii) from
time to time such other information concerning the Company as you may
request.
(j) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than by notice given
by you terminating this Agreement pursuant to Section 13 or Section 14
hereof) or if this Agreement shall be terminated by the Underwriters because
of any failure or refusal on the part of the Company or the Selling
Stockholders to comply with the terms or fulfill any of the conditions of
this Agreement, the defaulting party (the Company and/or the Selling
Stockholders, as the case may be) agrees to reimburse the Representatives
for all out-of-pocket expenses (including reasonable fees and expenses of
counsel for the Underwriters) incurred by you in connection herewith.
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(k) The Company will apply the net proceeds from the sale of the
Shares substantially in accordance with the description set forth in the
Prospectus.
(l) If Rule 430A of the Act is employed, the Company will timely
file the Prospectus pursuant to Rule 424(b) under the Act and will advise
you of the time and manner of such filing.
(m) The Company will not, directly or indirectly, sell, grant any
option or warrant for the sale of, register, loan, pledge, grant any rights
with respect to contract to sell or otherwise dispose of any Common Stock,
or any securities convertible into or exercisable or exchangeable for Common
Stock (including, without limitations, any of the economic attributes
thereof), for a period of 270 days after the date of the Prospectus, without
the prior written consent of Xxxxx Xxxxxx Inc., except for sales to the
Underwriters pursuant to this Agreement; provided, however, that the
Company may issue and sell Common Stock pursuant to the Company's Employee
Stock Ownership Plan as in effect at the Execution Time.
(n) The Company has furnished or will furnish to the Underwriters
"lock-up" letters, in form and substance satisfactory to you, signed by each
of its current officers and directors and by each of the Selling
Stockholders to the effect that they will not, for a period of 120 days, in
the case of the current officers and directors, and 270 days, in the case of
the Selling Stockholders, following the Execution Time, without the prior
written consent of Xxxxx Xxxxxx Inc., offer, sell or contract to sell, or
otherwise dispose of (or enter into any transaction which is designed to, or
could be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise), directly or indirectly or announce the offering of) any other
shares of Common Stock or any securities convertible into, or exchangeable
for, shares of Common Stock.
(o) For a period of 270 days following the Execution Time, the
Company will not, without your prior written consent, as Representatives to
the Underwriters, release or waive any of the obligations of its
stockholders pursuant to any agreements between the Company and its
stockholders which restrict the transfer, encumbrance, offer or disposal of
the Company's securities.
(p) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, the Company has not taken, nor will it 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 to facilitate the sale or resale of the Shares.
(q) The Company will use its best efforts to have the shares of
Common Stock which it agrees to sell under this Agreement approved for
inclusion on the NASDAQ National Market on or before the Closing Date.
7. Agreements of the Selling Stockholders. Each Selling
Stockholder agrees with the Underwriters as follows:
(a) Such Selling Stockholder (in his capacity as such) will
reasonably cooperate to the extent necessary to cause the registration
statement or any post-effective amendment thereto to become effective.
(b) Such Selling Stockholder will pay all Federal and other taxes,
if any on the transfer or sale of the Shares being sold by such Selling
Stockholder to the Underwriters.
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(c) Such Selling Stockholder in his capacity as such will do or
perform all things required to be done or performed by such Selling
Stockholder prior to the Closing Date in accordance with the express terms
hereof to satisfy all conditions precedent to the delivery of the Shares to
be sold by such Selling Stockholder pursuant to this Agreement.
(d) Except as stated in this Agreement and in the Prepricing
Prospectus and the Prospectus, such Selling Stockholder has not taken, nor
will it 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 to facilitate the sale or resale of the
Shares.
(e) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, within the period of
time referred to in Section 6(f) hereof, of any change in information
relating to such Selling Stockholder that suggests that any statement made
in the Registration Statement or the Prospectus (as then amended or
supplemented, if amended or supplemented) relating to such Selling
Stockholder is or may be untrue or that the statements in the Registration
Statement or Prospectus (as then amended or supplemented, if amended or
supplemented) relating to such Selling Stockholder omits or may omit to
state a material fact or a fact necessary to be stated therein in order to
make the statements therein not misleading.
(f) Such Selling Stockholder has furnished or will furnish to the
Underwriters a "lock-up" letter, in form and substance satisfactory to you,
to the effect that such Selling Stockholder agrees that, until such date
which is 270 days after the Closing Date, without the prior written consent
of Xxxxx Xxxxxx Inc., as Representative to the Underwriters, such Selling
Stockholder will not, directly or indirectly, offer, sell, contract to sell,
grant any option or warrant for the sale of, register, loan, pledge, grant
any rights with respect to, or otherwise transfer or dispose of any shares
of capital stock, including, without limitation, Common Stock which now or
hereafter may be deemed to be beneficially owned by such Selling
Stockholder.
8. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the
registration statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act, complied
when so filed in all material respects with the provisions of the Act;
except that this representation and warranty does not apply to statements in
or omissions from such Prepricing Prospectus (or any amendment or supplement
thereto) made in reliance upon and in conformity with information relating
to any Selling Stockholder or to any Underwriter furnished to the Company in
writing by an Underwriter through the Representatives expressly for use
therein. The Commission has not issued any order preventing or suspending
the use of any Prepricing Prospectus.
(b) The Company meets the requirements for the use of Form S-3
under the Act. The registration statement in the form in which it became or
becomes effective and also in such form as it may be when any post-effective
amendment thereto shall become effective and the prospectus and any
supplement or amendment thereto when filed with the Commission under Rule
424(b) under the Act, complied or will comply in all material respects with
the provisions of the Act and did not or will not at any such times 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; except that this representation and warranty does not apply
to statements in or omissions from the registration statement or the
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prospectus made in reliance upon and in conformity with information relating
to any Underwriter furnished to the Company in writing by or on behalf of
any Underwriter expressly for use therein.
(c) The Incorporated Documents, when they were filed (or, if any
amendment with respect to any such document was filed, when such amendment
was filed), complied in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder.
(d) All the outstanding shares of Common Stock of the Company have
been duly authorized and validly issued, are fully paid and nonassessable
and are free of any preemptive or similar rights; the Shares to be issued
and sold by the Company have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with
the terms hereof, will be validly issued, fully paid and nonassessable and
free of any preemptive or similar rights; and the capital stock of the
Company conforms to the description thereof in the Registration Statement
and the Prospectus.
(e) The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware with full
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and the
Prospectus, and is duly registered and qualified to conduct its business and
is in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify does not
have a material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the Company and
the Subsidiaries (as hereinafter defined) taken as a whole (a "Material
Adverse Effect").
(f) All the Company's subsidiaries (collectively, the
"Subsidiaries") are listed in an exhibit to the Registration Statement.
Each Subsidiary is a corporation duly organized, validly existing and in
good standing in the jurisdiction of its incorporation, with full corporate
power and authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and the Prospectus,
and is duly registered and qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature of its properties or
the conduct of its business requires such registration or qualification,
except where the failure so to register or qualify does not have a material
adverse effect on the condition (financial or other), business, properties,
net worth or results of operations of such Subsidiary; all the outstanding
shares of capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable, and are
owned by the Company directly, or indirectly through one of the other
Subsidiaries, free and clear of any lien, adverse claim, security interest,
equity or other encumbrance.
(g) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened, against the Company or any of the
Subsidiaries, or to which the Company or any of the Subsidiaries, or to
which any of their respective properties is subject, that are required to be
described in the Registration Statement or the Prospectus but are not
described as required, and there are no agreements, contracts, indentures,
leases or other instruments that are required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement or any Incorporated Document that are not described
or filed as required by the Act or the Exchange Act. The descriptions of
the terms of any such contracts or documents contained in the Registration
Statement or the Prospectus are correct in all material respects.
-10-
(h) Neither the Company nor any of the Subsidiaries is (i) in
violation of its certificate or articles of incorporation or by-laws, or
other organizational documents, (ii) in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to the Company
or any of the Subsidiaries or of any decree of any court or governmental
agency or body having jurisdiction over the Company or any of the
Subsidiaries, or (iii) in default in any material respect in the performance
of any obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness or in any material agreement,
indenture, lease or other instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their respective
properties may be bound; except, in the case of clauses (ii) and (iii)
above, for any such violation or default which, together with all other such
violations and defaults then existing, would not have a Material Adverse
Effect.
(i) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement by the Company nor the
consummation by the Company of the transactions contemplated hereby and
thereby (i) requires any consent, approval, authorization or other order of
or registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency or official (except such as may be
required for the registration of the Shares under the Act and the Exchange
Act and compliance with the securities or Blue Sky laws of various
jurisdictions, all of which have been or will be effected in accordance with
this Agreement) or conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, the certificate or articles of
incorporation or bylaws, of the Company or any of the Subsidiaries or (ii)
conflicts or will conflict with or constitutes or will constitute a breach
of, or a default under, any agreement, indenture, lease or other instrument
to which the Company or any of the Subsidiaries is a party or by which any
of them or any of their respective properties may be bound, or violates or
will violate any statute, law, regulation or filing or judgment, injunction,
order or decree applicable to the Company or any of the Subsidiaries or any
of their respective properties, or will result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any of the Subsidiaries pursuant to the terms of any agreement or
instrument to which any of them is a party or by which any of them may be
bound or to which any of the property or assets of any of them is subject.
(j) The accountants, Coopers & Xxxxxxx, L.L.P., who have certified
or shall certify the financial statements included or incorporated by
reference in the Registration Statement and the Prospectus (or any amendment
or supplement thereto) are independent public accountants as required by the
Act.
(k) The financial statements, together with related schedules and
notes, included or incorporated by reference in the Registration Statement
and the Prospectus (and any amendment or supplement thereto), present fairly
the consolidated financial position, results of operations, cash flows and
changes in financial position of the Company and the Subsidiaries on the
basis stated in the Registration Statement at the respective dates or for
the respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except as disclosed therein; and the other financial and statistical
information and data included or incorporated by reference in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) are accurately presented and prepared on a basis consistent with
such financial statements and the books and records of the Company and the
Subsidiaries.
-11-
(l) The execution and delivery of, and the performance by the
Company of its obligations under, this Agreement have been duly and validly
authorized by the Company, and this Agreement has been duly executed and
delivered by the Company and constitutes the valid and legally binding
agreement of the Company, enforceable against the Company in accordance with
its terms, except (i) the enforceability hereof or thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally, (ii) the
remedy of specific performance and other forms of equitable relief may be
subject to certain equitable defenses and to the discretion of the court
before which the proceedings may be brought and (iii) rights to indemnity
and contribution hereunder or thereunder may be limited by federal or state
securities laws or the public policy underlying such laws.
(m) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto),
neither the Company nor any of the Subsidiaries has incurred any liability
or obligation, direct or contingent, or entered into any transaction, not in
the ordinary course of business, that is material to the Company and the
Subsidiaries taken as a whole, and there has not been any change in the
capital stock, or material increase in the short-term debt or long-term
debt, of the Company or any of the Subsidiaries, or any development having
or which may reasonably be expected to have, a Material Adverse Effect.
(n) Each of the Company and the Subsidiaries has good and
marketable title to all property (real and personal) described in the
Prospectus as being owned by it, free and clear of all liens, claims,
security interests or other encumbrances except such as are described in the
Registration Statement and the Prospectus or in a document included as an
exhibit to the Registration Statement and all the property described in the
Prospectus as being held under lease by each of the Company and the
Subsidiaries is held by it under valid, subsisting and enforceable leases
with only such exceptions as in the aggregate are not materially burdensome
and do not interfere in any material respect with the conduct of the
business of the Company and the Subsidiaries, taken as a whole.
(o) The Company has not distributed and, prior to the later to
occur of (i) the Closing Date or the Option Closing Date, as the case may
be, and (ii) completion of the distribution of the Shares, will not
distribute any offering material in connection with the offering and sale of
the Shares other than the Registration Statement, the Prepricing Prospectus,
the Prospectus or other materials, if any, permitted by the Act.
(p) The Company and each of the Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits") as are necessary to own its respective properties
and to conduct its business in the manner described in the Prospectus,
subject to such qualifications as may be set forth in the Prospectus; the
Company has fulfilled and performed all its material obligations with
respect to such permits and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof or
results in any other material impairment of the rights of the holder of any
such permit, subject in each case to such qualification as may be set forth
in the Prospectus; and, except as described in the Prospectus, none of such
permits contains any restriction that is materially burdensome to the
Company or any of its Subsidiaries.
(q) 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 authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial
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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.
(r) To the Company's knowledge, neither the Company nor any of its
Subsidiaries nor any employee or agent of the Company or any Subsidiary has
made any payment of funds of the Company or any Subsidiary or received or
retained any funds in violation of any law, rule or regulation, which
payment, receipt or retention of funds is of a character required to be
disclosed in the Prospectus.
(s) The Company and each of the Subsidiaries have filed all
foreign, federal, state and local tax returns required to be filed, which
returns are complete and correct, and neither the Company nor any Subsidiary
is in default in the payment of any taxes which were payable pursuant to
said returns or any assessments with respect thereto.
(t) Except as disclosed in the Registration Statement and the
Prospectus, no holder of any security of the Company (other than the Selling
Stockholders) has any right to require registration of shares of Common
Stock or any other security of the Company because of the filing of the
registration statement or consummation of the transactions contemplated by
this Agreement.
(u) The Company and the Subsidiaries own or possess all patents,
trademarks, trademark registration, service marks, service xxxx
registrations, trade names, copyrights, licenses, inventions, trade secrets
and rights described in the Prospectus as being owned by them or any of the
them or necessary for the conduct of their respective businesses, and the
Company is not aware of any claim to the contrary or any challenge by any
other person to the rights of the Company and the Subsidiaries with respect
to the foregoing.
(v) The Company is not now, and after sale of the Shares and
application of the net proceeds from such sale as described in the
Prospectus under the caption "Use of Proceeds" will not be, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
(w) The Company has complied with all provisions of Florida
Statutes, 517.075, relating to issuers doing business with Cuba.
9. Representations and Warranties of the Selling
Stockholders. Each Selling Stockholder represents and warrants to each
Underwriter that:
(a) Such Selling Stockholder now has, and on the Closing Date and
any Option Closing Date will have, valid and marketable title to the Shares
to be sold by such Selling Stockholder hereunder, free and clear of any
lien, claim, security interest or other encumbrance, including, without
limitation, any restriction on transfer, except as otherwise described in
the Prospectus.
(b) Such Selling Stockholder now has, and on the Closing Date and
any Option Closing Date will have, full legal right, power and
authorization, and any approval required by law, to sell, assign transfer
and deliver such Shares in the manner provided in this Agreement, and upon
delivery of and payment for such Shares hereunder, the several Underwriters
will acquire valid and marketable title to such Shares free and clear of any
lien, claim, security interest, or other encumbrance.
-13-
(c) This Agreement and the Custody Agreement have each been duly
authorized, executed and delivered by or on behalf of such Selling
Stockholder and is the valid and binding agreement of such Selling
Stockholder enforceable against such Selling Stockholder in accordance with
their respective terms, except that (i) the enforceability hereof or thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally, (ii) the remedy of specific performance and other forms of
equitable relief may be subject to certain equitable defenses and to the
discretion of the court before which the proceedings may be brought and
(iii) rights to indemnity and contribution hereunder or thereunder may be
limited by federal or state securities laws or the public policy underlying
such laws.
(d) Neither the sale of the Shares, the execution and delivery of
this Agreement or the Custody Agreement by or on behalf of such Selling
Stockholder nor the consummation of the transactions contemplated hereby and
thereby by such Selling Stockholder (i) requires any consent, approval,
authorization or order of, or filing or registration with, any court,
regulatory body, administrative agency or other governmental body, agency or
official (except such as may be required under the Act or such as may be
required under state securities or Blue Sky laws governing the purchase and
distribution of the Shares) or (ii) conflicts or will conflict with or
constitutes or will constitute a breach of, or default under, or violates or
will violate, any agreement, indenture or other instrument to which such
Selling Stockholder is a party in his individual capacity or by which such
Selling Stockholder is or may be bound or to which any of such Selling
Stockholder's property or assets is subject, or any statute, law, rule,
regulation, ruling, judgment, injunction, order or decree applicable to such
Selling Stockholder in his individual capacity or to any property or assets
of such Selling Stockholder.
(e) The Registration Statement and the Prospectus, insofar as they
relate to such Selling Stockholder in his individual capacity, do not and
will not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(f) The representations and warranties of such Selling Stockholder
in the Custody Agreement are, and on the Closing Date and any Option Closing
Date will be, true and correct.
(g) Such Selling Stockholder has not taken, directly or
indirectly, any action in his individual capacity designed to or that might
reasonably be expected to cause or result in stabilization or manipulation
of the price of the Common Stock to facilitate the sale or resale of the
Shares, except for the lock-up arrangements referred to in the Prospectus.
(h) Such Selling Stockholder does not have any knowledge or any
reason to believe that the Registration Statement or the Prospectus (or any
amendment or supplement thereto) 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.
(i) Such Selling Stockholder has no reason to believe that the
discussion contained under the caption "Principal and Selling Stockholders"
contained in the Registration Statement and Prospectus is not true and
correct.
(j) No consent, approval, authorization, filing with or order of
any court or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained under
the Act and such as may be required under the blue sky laws of any jurisdic-
-14-
tion inside or outside of the United States in connection with the purchase
and distribution of the Shares by the Underwriters in the manner
contemplated herein and in the Prospectus.
(k) There are no contracts, agreements or understandings between
the Selling Stockholders and any person, including the Company, that would
give rise to a valid claim against the Selling Stockholder, the Company or
any Underwriter for a brokerage commission, finder's fee or other like
payment in connection with the offerings.
(l) Such Selling Stockholder has not distributed and will not
distribute any prospectus or other offering material in connection with the
offering and sale of the Shares.
(m) Such Selling Stockholder (i) does not have, or has waived
prior to the date hereof, any preemptive right, co-sale right or right of
first refusal or other similar right to purchase any of the Shares that are
to be sold by the Company or any of the other Selling Stockholders to the
Underwriters pursuant to this Agreement, (ii) does not have, or has waived
prior to the date hereof, any registration right or other similar right to
participate in the offering made by the Prospectus, other than such rights
of participation as have been satisfied by the participation of such Selling
Stockholder in the transactions to which this Agreement relates in
accordance with the terms of this Agreement, and (iii) does not own any
warrants, options or similar rights to acquire, and does not have any right
or arrangement to acquire, any capital stock, rights, warrants, options or
other securities from the Company, other than those described in the
Registration Statement and the Prospectus and, in the case of clause (iii)
above, other than additional shares of the Company that may be issuable to
them pursuant to "working capital adjustments" provisions of Section 5.01 of
the Agreement and Plan of Merger, dated as of April 1, 1998 among Nutrition
Headquarters, Inc., et al., the Selling Stockholders and the Company.
10. Indemnification and Contribution. (a) The Company and
each Selling Stockholder, jointly and severally, agree to indemnify and hold
harmless each of you and each other Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any Prepricing Prospectus or in the Registration
Statement or the Prospectus or in any amendment or supplement thereto, or
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which has been made therein or
omitted therefrom in reliance upon and in conformity with the information
relating to such Underwriter furnished in writing to the Company by or on behalf
of any Underwriter through you expressly for use in connection therewith;
provided, however, that (i) the indemnification contained in this paragraph (a)
with respect to any Prepricing Prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) on
account of any such loss, claim, damage, liability or expense arising from the
sale of the Shares by such Underwriter to any person if a copy of the Prospectus
shall not have been delivered or sent to such person within the time required by
the Act and the regulations thereunder, and the untrue statement or alleged
untrue statement or omission or alleged omission of a material fact contained in
such Prepricing Prospectus was corrected in the Prospectus; provided that the
Company has delivered the Prospectus to the several Underwriters in requisite
quantity on a timely basis to permit such delivery or sending and (ii) the
liability of a Selling Stockholder under Sections 9 and 10 shall not exceed an
amount equal to the net proceeds received by such Selling Stockholder from the
sale hereunder of the Shares sold by such Selling Stockholder to the
Underwriters. The foregoing indemnity agreement shall be in addition to any
liability which the Company may otherwise have.
-15-
(b) If any action, suit or proceeding shall be brought
against any Underwriter or any person controlling any Underwriter in respect
of which indemnity may be sought against the Company or the Selling
Stockholders, such Underwriter or such controlling person shall promptly
notify the parties against whom indemnification is being sought (the
"indemnifying parties"), and such indemnifying parties shall assume the
defense thereof, including the employment of counsel and payment of all fees
and expenses. Such Underwriter or any such controlling person shall have the
right to employ separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling person unless
(i) the indemnifying parties have agreed in writing to pay such fees and
expenses, (ii) the indemnifying parties have failed to assume the defense and
employ counsel, or (iii) the named parties to any such action, suit or
proceeding (including any impleaded parties) include both such Underwriter or
such controlling person and the indemnifying parties and the Underwriter or
such controlling person shall have been advised by its counsel that
representation of such indemnified party and any indemnifying party by the
same counsel would be inappropriate under applicable standards of professional
conduct (whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between them (in
which case the indemnifying party shall not have the right to assume the
defense of such action, suit or proceeding on behalf of such Underwriter or
such controlling person). It is understood, however, that the indemnifying
parties shall, in connection with any one such action, suit or proceeding or
separate but substantially similar or related actions, suits or proceedings in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Underwriter and controlling Persons not having actual or potential
differing interests with the Underwriter or among themselves, which firm shall
be designated in writing by Xxxxx Xxxxxx Inc., and that all such fees and
expenses shall be reimbursed as they are incurred. The indemnifying parties
shall not be liable for any settlement of any such action, suit or proceeding
effected without their written consent, but if settled with such written
consent, or if there be a final judgment for the plaintiff in any such action,
suit or proceeding, the indemnifying parties agree to indemnify and hold
harmless any Underwriter and any such controlling person, to the extent
provided in the preceding paragraph, and any such controlling person from and
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement, the Selling Stockholders, and any person who
controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with respect to information relating
to such Underwriter furnished in writing by or on behalf of such Underwriter
through you expressly for use in the Registration Statement, the Prospectus or
any Prepricing Prospectus, or any amendment or supplement thereto. If any
action, suit or proceeding shall be brought against the Company, any of its
directors, any such officer, the Selling Stockholders, or any such controlling
person based on the Registration Statement, the Prospectus or any Prepricing
Prospectus, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any Underwriter pursuant to this paragraph
(c), such Underwriter shall have the rights and duties given to the Company by
paragraph (b) above (except that if the Company shall have assumed the defense
thereof such Underwriter shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the Underwriter's expense), and the
Company, its directors, any such officer, the Selling Stockholders, and any
such controlling person shall have the rights and duties given to the
Underwriter by paragraph (b) above. The foregoing indemnity agreement shall be
in addition to any liability which any Underwriter may otherwise have.
(d) If the indemnification provided for in this Section 10
is unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred
-16-
to therein, then an indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other hand from the offering of the Shares, or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Stockholders 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 and the Selling Stockholders
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 of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other hand 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 or the Selling Stockholders on
the one hand or by the Underwriters on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Company, the Selling Stockholders and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 10 were determined by a pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating any claim or defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 10, (x) no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price of the Shares underwritten by it and distributed 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 and (y) no Selling Stockholder shall be required to
contribute any amount in excess of the amount by which the net proceeds
received by such Selling Stockholder from the sale hereunder of the Shares
sold by Selling Stockholder to the Underwriters exceeds the aggregate amount
which such Selling Stockholder has otherwise been required to pay pursuant to
this Section 10. 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. The
Underwriters' obligations to contribute pursuant to this Section 10 are
several in proportion to the respective numbers of Firm Shares set forth
opposite their names in Schedule I hereto (or such numbers of Firm Shares
increased as set forth in Section 13 hereof) and not joint.
(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution
under this Section 10 shall be paid by the indemnifying party to the
indemnified party as such losses, claims, damages, liabilities or expenses are
incurred. The indemnity and con-
-17-
tribution agreements contained in this Section 10 and the representations and
warranties of the Company and the Selling Stockholders set forth in this
Agreement shall remain operative and in full force and effect, regardless of (i)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Company, its directors or officers or the
Selling Stockholders or any person controlling the Company, (ii) acceptance of
any Shares and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to any Underwriter or any person controlling any
Underwriter, or to the Company, its directors or officers, or any person
controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 10.
11. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares hereunder are
subject to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it
is necessary for the registration statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may
commence, the registration statement or such post-effective amendment shall
have become effective not later than 5:30 P.M., New York City time, on the
date hereof, or at such later date and time as shall be consented to in
writing by you, and all filings, if any, required by Rules 424 and 430A
under the Act shall have been timely made; no stop order suspending the
effectiveness of the registration statement shall have been issued and no
proceeding for that purpose shall have been instituted 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 otherwise) shall have been
complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, that would have a Material Adverse Effect on the Company
and the Subsidiaries, taken as a whole, not contemplated by the Prospectus,
which in your opinion, as Representatives of the several Underwriters, would
materially adversely affect the market for the Shares or (ii) any event or
development relating to or involving the Company or any officer or director
of the Company or any Selling Stockholder which makes any statement made in
the Prospectus untrue or which, in the opinion of the Company and its
counsel or the Underwriters and their counsel, requires the making of any
addition to or change in the Prospectus in order to state a material fact
required by the Act or any law to be stated therein or necessary in order to
make the statements therein not misleading, if amending or supplementing the
Prospectus to reflect such event or development would, in your opinion, as
Representatives of the Underwriters, materially adversely affect the market
for the Shares.
(c) You shall have received on the Closing Date, an opinion of
Xxxxxxx X. Xxxxx, P.C., counsel for the Company, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, to the
effect that:
(i) The Company is a corporation duly
incorporated and validly existing in good standing under the
laws of the State of Delaware with full corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement
and the Prospectus (and any amendment or supplement thereto),
and is duly registered and qualified to conduct its business
and is in good standing in each jurisdiction or place where the
nature of the Company's properties or the conduct of its
business requires such registration or qualification, except
where the failure so to register or qualify does not have a
Material Adverse Effect on the Company and the Subsidiaries,
taken as a whole);
-18-
(ii) Each of the Subsidiaries is a corporation
duly organized and validly existing in good standing under the
laws of the jurisdiction of its organization, with full
corporate power and authority to own, lease, and operate its
properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto); and all the outstanding shares of capital
stock of each of the Subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable, and are owned
by the Company directly, or indirectly through one of the other
Subsidiaries, free and clear of any perfected security
interest, or, to the best knowledge of such counsel after
reasonable inquiry, any other security interest, lien, adverse
claim, equity or other encumbrance;
(iii) The authorized and outstanding capital stock
of the Company is as set forth under the caption "Capitalization" in
the Prospectus; and the authorized capital stock of the Company
conforms in all material respects as to legal matters to the
description thereof contained in the Prospectus under the caption
"Description of Capital Stock";
(iv) All the shares of capital stock of the
Company outstanding prior to the issuance of the Shares have
been duly authorized and validly issued, and are fully paid and
nonassessable;
(v) The Shares have been duly authorized and,
when issued and delivered to the Underwriters against payment
therefor in accordance with the terms hereof, will be validly
issued, fully paid and nonassessable and free of any preemptive
rights or, to the best knowledge of such counsel after
reasonable inquiry, similar rights that entitle or will entitle
any person to acquire any Shares upon the issuance thereof by
the Company;
(vi) The form of certificates for the Shares
conforms to the requirements of the Delaware General
Corporation Law;
(vii) The Registration Statement and all
post-effective amendments, if any, have become effective under
the Act and, to the best knowledge of such counsel, after
reasonable inquiry, no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose are pending before or contemplated
by the Commission; and any required filing of the Prospectus
pursuant to Rule 424(b) has been made in accordance with Rule
424(b);
(viii) The Company has corporate power and authority
to enter into this Agreement and to issue, sell and deliver the
Shares to be sold by it to the Underwriters as provided herein,
and this Agreement has been duly authorized, executed and
delivered by the Company and is a valid, legal and binding
agreement of the Company;
(ix) Neither the Company nor any of the
Subsidiaries is (i) in violation of its respective certificate
or articles of incorporation or bylaws, or (ii) to the best
knowledge of such counsel after reasonable inquiry, is in
default in the performance of any material obligation,
agreement or condition contained in any bond, debenture, note
or other evidence of indebtedness, except as may be disclosed
in the Prospectus or where any such default or defaults in the
aggregate would not have Material Adverse Effect;
-19-
(x) Neither the offer, sale or delivery of the
Shares, the execution, delivery or performance of this
Agreement, compliance by the Company with the provisions of
this Agreement nor consummation by the Company of the
transactions contemplated by this Agreement conflicts or will
conflict with or constitutes or will constitute a breach of, or
a default under, the certificate or articles of incorporation
or bylaws of the Company or any of the Subsidiaries or any
material agreement, indenture, lease or other instrument to
which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties is
bound that is an exhibit to the Registration Statement or to
any Incorporated Document, or is known to such counsel after
reasonable inquiry, or will result in the creation or
imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of the Subsidiaries, nor will
any such action result in any violation of any existing law,
regulation, ruling (assuming compliance with all applicable
state securities and Blue Sky laws), judgment, injunction,
order or decree known to such counsel after reasonable inquiry,
applicable to the Company, the Subsidiaries or any of their
respective properties, which violation would have a Material
Adverse Effect;
(xi) No consent, approval, authorization or other
order of, or registration or filing with, any court, regulatory
body, administrative agency or other governmental body, agency,
or official is required on the part of the Company (except as
have been obtained under the Act and the Securities Exchange
Act of 1934, as amended (the "Exchange Act") or such as may be
required under state securities or Blue Sky laws governing the
purchase and distribution of the Shares) for the valid issuance
and sale of the Shares to the Underwriters as contemplated by
the Underwriting Agreement;
(xii) The Registration Statement and the Prospectus
and any supplements or amendments thereto (except for the
financial statements and the notes thereto and the schedules
and other financial and statistical data included therein, as
to which such counsel need not express any opinion) comply as
to form in all material respects with the requirements of the
Act; and each of the Incorporated Documents (except for the
financial statements and the notes thereto and the schedules
and other financial and statistical data included therein, as
to which such counsel need not express any opinion) complies as
to form in all material respects with the Exchange Act and the
rules and regulations of the Commission thereunder;
(xiii) To the knowledge of such counsel, after
reasonable inquiry, (A) other than as described or contemplated
in the Prospectus (or any supplement thereto), there are no
legal or governmental proceedings pending or threatened against
the Company or any of the Subsidiaries, or to which the Company
or any of the Subsidiaries, or any of their property, is
subject, which are required to be described in the Registration
Statement or Prospectus (or any amendment or supplement
thereto) and (B) there are no agreements, contracts,
indentures, leases or other instruments, that are required to
be described in the Registration Statement or the Prospectus
(or any amendment or supplement thereto) or to be filed as an
exhibit to the Registration Statement or any Incorporated
Document that are not described or filed as required, as the
case may be;
(xiv) To the knowledge of such counsel, after
reasonable inquiry, neither the Company nor any of the
Subsidiaries is in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to
the Company or any of the Subsidiaries or of any decree of any
court or governmental agency or body having jurisdiction over
the Company or
-20-
any of the Subsidiaries which violation, individually or in the
aggregate, would have a Material Adverse Effect;
(xv) The statements in the Registration Statement
and Prospectus, insofar as they are descriptions of contracts,
agreements or other legal documents, or refer to statements of
law or legal conclusions, are accurate and present fairly the
information required to be shown;
Such opinion shall also state that, although counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently, and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement, such counsel has
participated in the preparation of the Registration Statement and the
Prospectus, including review and discussion of the contents thereof with
officers and other officials of the Company, representatives of the Independent
Public Accountants for the Company and your representatives, at which meetings
the contents of the Registration Statement and the Prospectus and related
matters were discussed (including review and discussion of the contents of all
Incorporated Documents), and nothing has come to the attention of such counsel
that has caused them to believe that the Registration Statement (including the
Incorporated Documents) at the time the Registration Statement became effective,
or the Prospectus, as of its date and as of the Closing Date or the Option
Closing Date, as the case may be, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that any
amendment or supplement to the Prospectus, as of its respective date, and as of
the Closing Date or the Option Closing Date, as the case may be, contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements and the notes thereto and the schedules and other financial
and statistical data included in the Registration Statement or the Prospectus or
any Incorporated Document).
In rendering their opinion as aforesaid, counsel may rely
upon an opinion or opinions, each dated the Closing Date, of other counsel
retained by them or the Company as to laws of any jurisdiction other than the
United States or the States of New York or Delaware, provided that (1) each such
local counsel is acceptable to the Representatives, (2) such reliance is
expressly authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Representatives and is, in form and substance
satisfactory to them and their counsel, and (3) counsel shall state in their
opinion that they believe that they and the Underwriters are justified in
relying thereon.
(d) You shall receive on the Closing Date an opinion of Xxxxxxx,
Xxxxxxxxx LLP, counsel for the Selling Stockholders, dated the Closing Date
and addressed to you, as Representatives of the Underwriters, to the effect
that:
(i) The Underwriting Agreement has been duly
authorized, executed and delivered by or on behalf of each of
the Selling Stockholders;
(ii) Each Selling Stockholder has full legal
right, power and authority to sell, assign, transfer and
deliver the Shares which such Selling Stockholder has agreed to
sell pursuant to the Underwriting Agreement, and when delivered
to and paid for by the Underwriters in accordance with the
terms thereof, assuming the Underwriters have no knowledge of
any ad-
-21-
verse claim, the Underwriters will own such Shares free and
clear of all security interests, liens, encumbrances or claims
of any person;
(iii) The execution and delivery of the
Underwriting Agreement by the Selling Stockholders and the
consummation by them in their individual capacities of the
transactions contemplated hereby, to the knowledge of such
counsel, will not conflict with, violate, result in a breach of
or constitute a default under the terms or provisions of any
material agreement, indenture, mortgage or other instrument
known to such counsel to which a Selling Stockholder is a party
in his individual capacity or by which he or any of his assets
or property is bound, or any material court order or decree or
any material law, rule, or regulation applicable to a Selling
Stockholder in his individual capacity or to any of the
property or assets of a Selling Stockholder.
(iv) The Custody Agreement has been duly
authorized, executed and delivered by or on behalf of each of
the Selling Stockholders and is a valid and binding agreement
of each Selling Stockholder enforceable against each Selling
Stockholder in accordance with its terms except that (i)
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally,
(ii) the remedy of specific performance and other forms of
equitable relief may be subject to certain equitable defenses
and to the discretion of the court before which the proceedings
may be brought and (iii) rights to indemnity and contribution
thereunder may be limited by Federal or state securities laws
or the public policy underlying such laws.
Such opinion shall also state that, although counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently, and does not assume any responsibility for, the accuracy or
completeness of the statements in the Registration Statement, such counsel has
reviewed the information contained or incorporated by reference in the
Registration Statement and the Prospectus, including review and discussion of
the contents thereof, and nothing has come to the attention of such counsel that
has caused them to believe that the Registration Statement (including the
Incorporated Documents) at the time the Registration Statement became effective,
or the Prospectus, as of its date and as of the Closing Date or the Option
Closing Date, as the case may be, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, solely
insofar as any such misstatement or omission relates to each Selling
Stockholder, in his or its individual capacity, or that any amendment or
supplement to the Prospectus, as of its respective date, and as of the Closing
Date or the Option Closing Date, as the case may be, contained or contains any
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, solely insofar as any
such misstatement or omission relates to each Selling Stockholder, in his or its
individual capacity, (it being understood that such counsel need express no
opinion with respect to the Company or the financial statements and the notes
thereto and the schedules and other financial and statistical data included in
the Registration Statement or the Prospectus or any Incorporated Document).
(e) You shall have received on the Closing Date an opinion of
Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters, dated the Closing
Date and addressed to you, as Representatives of the Underwriters, with
respect to the matters referred to in clauses (v), (vii), (viii), (xii) and
the penultimate paragraph of the foregoing paragraph (c) and such other
related matters as you may request.
-22-
(f) You shall have received letters addressed to you, as
Representatives of the Underwriters, and dated the date hereof and the
Closing Date, from Coopers & Xxxxxxx, L.L.P, independent certified public
accountants, substantially in the forms heretofore approved by you.
(g) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there
shall not have been any change in the capital stock of the Company nor any
material increase in the short-term or long-term debt of the Company (other
than in the ordinary course of business) from that set forth or contemplated
in the Registration Statement or the Prospectus (or any amendment or
Supplement thereto); (iii) there shall not have been, since the respective
dates as of which information is given in the Registration Statement and the
Prospectus (or any amendment or Supplement thereto), except as otherwise be
stated in the Registration Statement and Prospectus (or any amendment or
supplement thereto), any material adverse change in the condition (financial
or other) , business, prospects, properties, net worth or results of
operations of the Company and the Subsidiaries taken as a whole; (iv) the
Company and the Subsidiaries shall not have any liabilities or obligations,
direct or contingent (whether or not in the ordinary course of business),
that are material to the Company and the Subsidiaries, taken as a whole,
other than those reflected in the Registration Statement or the Prospectus
(or any amendment or supplement thereto); and (v) all the representations
and warranties of the Company contained in this Agreement shall be true and
correct on and as of the date hereof and on and as of the Closing Date as if
made on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed by the chief executive
officer and the chief financial officer of the Company (or such other
officers as are acceptable to you), to the effect set forth in this Section
11(g) and in Section 11(h) hereof.
(h) The Company shall not have failed at or prior to the Closing
Date to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder at
or prior to the Closing Date.
(i) All the representations and warranties of each Selling
Stockholder contained in this Agreement and in the Custody Agreement shall
be true and correct on and as of the date hereof and on and as of the
Closing Date as if made on and as of the Closing Date, and you shall have
received a certificate, dated the Closing Date and signed by such Selling
Stockholder to the effect set forth in this Section 11(i) and in Section
11(j) hereof.
(j) The Selling Stockholders shall not have failed at or prior to
the Closing Date to have performed or complied with any of their agreements
contained herein and required to be performed or complied with by them at or
prior to the Closing Date.
(k) Prior to the Closing Date the Shares which the Company agrees
to sell pursuant to this Agreement shall have been approved for inclusion on
the NASDAQ National Market.
(l) At the Execution Time, unless otherwise agreed to in writing
by the Representatives, the Company shall have furnished to the
Representatives "lock-up" letters signed by each of its current officers and
directors of the Company and by the Selling Stockholders addressed to the
Representatives, in which each such person agreed that, until such date
which is (a) 270 days after the Closing Date if such person is a Selling
Stockholder or (b) 120 days after the Closing Date in the case of the
current officers and directors of the Company, without the prior written
consent of Xxxxx Xxxxxx Inc.,
-23-
as Representative to the Underwriters, such person will not, directly or
indirectly, offer, sell, contract to sell, grant any option or warrant for
the sale of, register, loan, pledge, grant any rights with respect to, or
otherwise transfer or dispose of any shares of capital stock of the Company
or securities convertible into or exchangeable or exercisable for, or any
rights to purchase or acquire, such shares of capital stock, including,
without limitation, Common Stock which now or hereafter may be deemed to be
beneficially owned by such person, subject to certain exceptions set forth
therein.
(m) The Company and each of the Selling Stockholders shall have
furnished or caused to be furnished to you such further certificates and
documents as you shall have requested.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are satisfactory
in form and substance to you and the Underwriters' counsel.
Any certificate or document signed by any officer of the
Company or a Selling Stockholder and delivered to you, as Representatives of
the Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company or such Selling Stockholder, as the
case may be, to each Underwriter as to the statements made therein.
The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to the satisfaction on and as of any
Option Closing Date of the conditions set forth in this Section 11, except
that, if any Option Closing Date is other than the Closing Date, the
certificates, opinions and letters referred to in paragraphs (c) through (i)
shall be dated the Option Closing Date in question and the opinions called for
by paragraphs (c), (d) and (e) shall be revised to reflect the sale of
Additional Shares.
12. Expenses. The Company agrees to pay the following costs
and expenses and all other costs and expenses incident to the performance by its
and the Selling Stockholders' obligations hereunder: (i) the preparation,
printing or reproduction, and filing with the Commission of the registration
statement (including financial statements and exhibits thereto), each
Prepricing Prospectus, the Prospectus, and each amendment or supplement to any
of them; (ii) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of such copies of
the registration statement, each Prepricing Prospectus, the Prospectus, the
Incorporated Documents, and all amendments or supplements to any of them, as may
be requested for use in connection with the offering and sale of the Shares;
(iii) the preparation, printing, authentication, issuance and delivery of
certificates for the Shares, including any stamp taxes in connection with the
original issuance and sale of the Shares; (iv) the printing (or reproduction)
and delivery of this Agreement, the preliminary and supplemental Blue Sky
Memoranda and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Shares; (v) the listing of the
Shares on the NASDAQ National Market; (vi) the registration or qualification of
the Shares for offer and sale under the securities or Blue Sky laws of the
several states as provided in Section 6(g) hereof (including the reasonable
fees, expenses and disbursements of counsel for the Underwriters relating to the
preparation, printing or reproduction, and delivery of the preliminary and
supplemental Blue Sky Memoranda and such registration and qualification); (vii)
the filing fees and the fees and expenses of counsel for the Underwriters in
connection with any filings required to be made with the National Association of
Securities Dealers, Inc.; (viii) the transportation and other expenses incurred
by or on behalf of Company representatives in connection with presentations to
prospective purchasers of the Shares; and (ix) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local and
special counsel) for the Company and the Selling Stockholders.
The provisions of this Section 12 shall not affect, as
between the Company and the Selling Stockholders, any agreement between them
regarding allocation of expenses to be paid by them hereunder.
-24-
13. Effective Date of Agreement. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto; or
(ii) if, at the time this Agreement is executed and delivered, it is necessary
for the registration statement or a post-effective amendment thereto to be
declared effective before the offering of the Shares may commence, when
notification of the effectiveness of the registration statement or such
post-effective amendment has been released by the Commission. Until such time as
this Agreement shall have become effective, it may be terminated by the Company,
by notifying you and the Selling Stockholders, by the Selling Stockholders, by
notifying you and the Company, or by you, as Representatives of the several
Underwriters, by notifying the Company and the Selling Stockholders.
If any one or more of the Underwriters shall fail or refuse
to purchase Shares which it or they are obligated to purchase hereunder on the
Closing Date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters are obligated but fail or refuse to purchase is not
more than one-tenth of the aggregate number of Shares which the Underwriters are
obligated to purchase on the Closing Date, each non-defaulting Underwriter shall
be obligated, severally, in the proportion which the number of Firm Shares set
forth opposite its name in Schedule I hereto bears to the aggregate number of
Firm Shares set forth opposite the names of all non-defaulting Underwriters or
in such other proportion as you may specify in accordance with Section 20 of the
Master Agreement Among Underwriters of Xxxxx Xxxxxx Inc., to purchase the Shares
which such defaulting Underwriter or Underwriters are obligated, but fail or
refuse, to purchase. If any one or more of the Underwriters shall fail or refuse
to purchase Shares which it or they are obligated to purchase on the Closing
Date and the aggregate number of Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares which the
Underwriters are obligated to purchase on the Closing Date and arrangements
satisfactory to you, the Selling Stockholders and the Company for the purchase
of such Shares by one or more non-defaulting Underwriters or other party or
parties approved by you, the Selling Stockholders and the Company are not made
within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter, the Selling
Stockholders or the Company. In any such case which does not result in
termination of this Agreement, either you the Selling Stockholders or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any such default of any such
Underwriter under this Agreement. The term "Underwriter" as used in this
Agreement includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Company and
the Selling Stockholders, purchases Shares which a defaulting Underwriter is
obligated, but fails or refuses, to purchase.
Any notice under this Section 13 may be given by telecopy or
telephone but shall be subsequently confirmed by letter.
14. Termination of Agreement. This Agreement shall be subject
to termination in your absolute discretion, without liability on the part of any
Underwriter to the Company or the Selling Stockholders, by notice to the Company
and to the Selling Stockholders, if prior to the Closing Date or any Option
Closing Date (if different from the Closing Date and then only as to the
Additional Shares), as the case may be, (i) trading in securities generally on
the New York Stock Exchange, the American Stock Exchange or the Nasdaq National
Market shall have been suspended or materially limited, (ii) a general
moratorium on commercial banking activities in New York shall have been declared
by either federal or state authorities, or (iii) there shall have occurred any
outbreak or escalation of hostilities or other international or domestic
calamity, crisis or change in political, financial or economic conditions, the
effect of which on the financial markets of the United States is such as to make
it, in your judgment, impracticable or inadvisable to commence or continue the
offering of the Shares at the offering price to the public set forth on the
cover page of the Prospectus or to enforce contracts for
-25-
the resale of the Shares by the Underwriters. Notice of such termination may
be given to the Company and to the Selling Stockholders by telecopy or telephone
and shall be subsequently confirmed by letter.
15. Information Furnished by the Underwriters. The statements
set forth in the last paragraph on the cover page, the stabilization legend on
the inside cover page, and the statements under the caption "Underwriting" in
any Prepricing Prospectus and in the Prospectus, constitute the only information
furnished by or on behalf of the Underwriters through you as such information is
referred to in Sections 8(b) and 10 hereof.
16. Miscellaneous. Except as otherwise provided in Sections
6, 13 and 14 hereof, notice given pursuant to any provision of this Agreement
shall be in writing and shall be delivered (i) if to the Company, at the office
of the Company at 00 Xxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Xxxxx; or (ii) if to a Selling Stockholder, c/o Herrick, Feinstein, 0 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxx, or (iii) if to
you, as Representatives of the several Underwriters, c/o Xxxxx Xxxxxx Inc., 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment
Banking Division.
This Agreement has been and is made solely for the benefit of
the several Underwriters, the Selling Stockholders, the Company, its directors
and officers, and the other controlling Persons referred to in Section 11 hereof
and their respective successors and assigns, to the extent provided herein, and
no other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" nor the term "successors and assigns" as
used in this Agreement shall include a purchaser from any Underwriter of any of
the Shares in his status as such purchaser.
17. Applicable Law; Counterparts. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
-26-
Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Selling Stockholders and the Underwriters.
Very truly yours,
NBTY, INC.
By:_______________________
Name:
Title:
XXXXXXX X. XXXXX
---------------------------
XXXXXXX XXXXXXX TRUST F/B/O
XXXX XXXXX
By:_______________________
Name:
Title:
XXXXXXX XXXXXXX TRUST F/B/O
XXXXXX XXXXXX
By:_______________________
Name:
Title:
Confirmed as of the date first
above mentioned on behalf of
themselves and the several
Underwriters named in Schedule I
hereto.
XXXXX XXXXXX INC.
XXXXXX BROTHERS INC.
XXXXX, XXXXXXXX & XXXX, INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXX XXXXXXX INC.
As Representatives of the
several Underwriters
By: Xxxxx Xxxxxx Inc.
By: _______________________
Name:
Title:
SCHEDULE I
UNDERWRITERS
Number of
Underwriters Firm Shares
------------ -----------
XXXXX XXXXXX INC............................................. 1,720,000
XXXXXX BROTHERS INC.......................................... 1,720,000
XXXXX, XXXXXXXX & XXXX, INC.................................. 1,720,000
XXXXXXX XXXXX & ASSOCIATES, INC.............................. 1,720,000
XXXXX XXXXXXX INC............................................ 1,720,000
-----------
Total 8,600,000
===========
SCHEDULE II
SELLING STOCKHOLDERS
Number of
Name Firm Shares
---- -----------
XXXXXXX X. XXXXX 2,100,000
XXXXXXX XXXXXXX TRUST F/B/O XXXX XXXXX 1,750,000
XXXXXXX XXXXXXX TRUST F/B/O XXXXXX XXXXXX 1,750,000
-----------
Total 5,600,000
===========
