DRAFT: 05/15/98
5,000,000 Shares
NORTHLAND CRANBERRIES, INC.
Class A Common Stock
$0.01 Par Value
UNDERWRITING AGREEMENT
June [ ], 1998
BT Alex. Xxxxx Incorporated
NationsBanc Xxxxxxxxxx Securities, LLC
Xxxxx Xxxxxxx Inc.
As Representatives of the
Several Underwriters
c/o BT Alex. Xxxxx Incorporated
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Gentlemen:
Northland Cranberries, Inc., a Wisconsin corporation (the "Company"),
proposes to issue and sell to the several underwriters (the "Underwriters")
named in Schedule I hereto for whom you are acting as representatives (the
"Representatives") an aggregate of 5,000,000 shares of the Company's Class A
Common Stock, $0.01 par value (the "Firm Shares"). The respective amounts of
the Firm Shares to be so purchased by the several Underwriters are set forth
opposite their names in Schedule I hereto. The Company also proposes to
issue and sell at the Underwriters' option up to 750,000 additional shares of
the Company's Class A Common Stock (the "Option Shares") as set forth below.
The Company also has entered into a certain Asset Purchase Agreement dated
May [ ], 1998 (the "Asset Purchase Agreement"), by and among the Company,
Minot Food Packers, Inc., a New Jersey corporation ("Minot"), and Xxxxxxx X.
Xxxxxxx, its sole shareholder ("Xxxxxxx"), to purchase substantially all of
the assets and the operating business of Minot (the "Minot Business") with a
portion of the net proceeds from the sale of the Firm Shares. For the
purposes of this Agreement, unless the context expressly otherwise requires,
references to the Company and the Subsidiaries shall include the Minot
Business as if the acquisition of the Minot Business has been completed.
As the Representatives, you have advised the Company (a) that you are
authorized to enter into this Agreement on behalf of the several Underwriters,
and (b) that the several Underwriters are willing, acting severally and not
jointly, to purchase the numbers of Firm
Shares set forth opposite their respective names in Schedule I, plus their
pro rata portion of the Option Shares if you elect to exercise the
overallotment option in whole or in part for the accounts of the several
Underwriters. The Firm Shares and the Option Shares (to the extent the
aforementioned option is exercised) are herein collectively called the
"Shares."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) The Company represents and warrants to each of the Underwriters
as follows:
(i) A registration statement on Form S-3 (File No. 333-[ ])
with respect to the Shares has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and the Rules and Regulations (the
"Rules and Regulations") of the Securities and Exchange Commission
(the "Commission") thereunder and has been filed with the Commission.
The Company has complied with the conditions for the use of Form S-3.
Copies of such registration statement, including any amendments
thereto, the preliminary prospectuses (meeting the requirements of the
Rules and Regulations) contained therein and the exhibits, financial
statements and schedules, as finally amended and revised, have
heretofore been delivered by the Company to you and to the extent
applicable, were identical to the electronically transmitted copies
thereof filed with the Commission pursuant to the Commission's
Electronic Data Gathering, Analysis and Retrieval System ("XXXXX"),
except to the extent permitted by Regulation S-T. Such registration
statement, together with any registration statement filed by the
Company pursuant to Rule 462(b) of the Securities Act, herein referred
to as the "Registration Statement," which shall be deemed to include
all information omitted therefrom in reliance upon Rule 430A and
contained in the Prospectus referred to below, has become effective
under the Securities Act and no post-effective amendment to the
Registration Statement has been filed as of the date of this
Agreement. "Prospectus" means the form of prospectus first filed with
the Commission pursuant to Rule 424(b). Each preliminary prospectus
included in the Registration Statement prior to the time it becomes
effective is herein referred to as a "Preliminary Prospectus." Any
reference herein to the Registration Statement, any Preliminary
Prospectus or to the Prospectus shall be deemed to refer to and
include any documents and information incorporated by reference
therein, and supplements or amendments thereto filed with the
Commission after the date of filing of the Prospectus under Rules
424(b) or 430A, and prior to the termination of the offering of the
Shares by the Underwriters. For purposes of this Agreement, all
references to the Registration Statement, any Preliminary Prospectus,
the Prospectus, any documents incorporated by reference therein, or
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any amendment or supplement to any of the foregoing, shall be deemed
to include the respective copies thereof filed with the Commission
pursuant to XXXXX.
(ii) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of Wisconsin, with corporate power and authority to own or
lease its properties and conduct its business as described in the
Registration Statement. Each of the subsidiaries of the Company,
as listed in Exhibit A hereto (collectively, the "Subsidiaries"),
has been duly organized and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own or lease
its properties and conduct its business as described in the
Registration Statement. The Subsidiaries are the only
subsidiaries, direct or indirect, of the Company. The Company and
each of the Subsidiaries are duly qualified to transact business in
all jurisdictions in which the conduct of their business requires
such qualification. The outstanding shares of capital stock of
each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable (except for certain
statutory personal liability which may be imposed upon shareholders
under Section 180.0622(2)(b) of the Wisconsin Business Corporation
Law ("WBCL")) and to the extent shown in Exhibit A hereto are owned
by the Company or another Subsidiary free and clear of all liens,
encumbrances and equities and claims; and no options, warrants or
other rights to purchase, agreements or other obligations to issue
or other rights to convert any obligations into shares of capital
stock or ownership interests in the Subsidiaries are outstanding.
(iii) The outstanding shares of Class A Common Stock of the
Company have been duly authorized and validly issued and are fully
paid and nonassessable (except for certain statutory personal
liability which may be imposed upon shareholders under Section
180.0622(2)(b) of the WBCL); the Shares have been duly authorized and
when issued and paid for in accordance with the terms this Agreement,
will be validly issued, fully paid and nonassessable (except for
certain statutory personal liability which may be imposed upon
shareholders under Section 180.0622(2)(b) of the WBCL); and no
preemptive rights of stockholders exist with respect to any of the
Shares or the issue and sale thereof. Neither the filing of the
Registration Statement nor the offering or sale of the Shares as
contemplated by this Agreement gives rise to any rights, other than
those which have been waived or satisfied, for or relating to the
registration of any shares of Class A Common Stock.
(iv) The information set forth under the caption "Capitalization"
in the Prospectus is true and correct. All of the Shares conform to
the description thereof contained in the Registration Statement. The
form of certificates for the Shares conforms to the requirements of
the WBCL.
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(v) The Commission has not issued an order preventing or
suspending the use of any Prospectus relating to the proposed offering
of the Shares nor instituted proceedings for that purpose. The
Registration Statement contains, and the Prospectus and any amendments
or supplements thereto will contain, all statements which are required
to be stated therein by, and will conform to, the requirements of the
Securities Act and the Rules and Regulations. The documents
incorporated by reference in the Prospectus, at the time filed with
the Commission conformed, in all respects to the requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") or the Securities
Act, as applicable, and the rules and regulations of the Commission
thereunder, and at such time none of such documents contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading (other than as corrected or updated in a
subsequent filing under the Exchange Act or the Registration
Statement). The Registration Statement and any amendment thereto do
not contain, and will not contain, any untrue statement of a material
fact and do not omit, and will not omit, to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus and any amendments and
supplements thereto do not contain, and will not contain, any untrue
statement of material fact; and do not omit, and will not omit, to
state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to information
contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon, and
in conformity with, written information furnished to the Company by or
on behalf of any Underwriter through the Representatives, specifically
for use in the preparation thereof.
(vi) The consolidated financial statements of the Company and the
Subsidiaries, together with related notes as set forth or incorporated
by reference in the Registration Statement, present fairly the
financial position and the results of operations and cash flows of the
Company and the consolidated Subsidiaries, at the indicated dates and
for the indicated periods. Such financial statements and related
schedules have been prepared in accordance with generally accepted
principles of accounting, consistently applied throughout the periods
involved, except as disclosed herein, and all adjustments necessary
for a fair presentation of results for such periods have been made.
The summary financial and statistical data included or incorporated by
reference in the Registration Statement presents fairly the
information shown therein and such data has been compiled on a basis
consistent with the financial statements presented therein and the
books and records of the Company. The pro forma financial statements
and other pro forma financial information included in the Registration
Statement and the Prospectus present fairly in all material respects
the information shown therein, have been prepared in accordance with
the Commission's rules and guidelines with respect to pro forma
financial statements, have been properly compiled on the pro forma
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basis described therein, and, in the opinion of the Company, the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein.
(vii) Deloitte & Touche LLP and BDO Xxxxxxx LLP,, who have
certified certain of the financial statements filed with the
Commission as part of the Registration Statement, are independent
public accountants as required by the Securities Act and the Rules and
Regulations.
(viii) There is no action, suit, claim or proceeding pending
or, to the knowledge of the Company, threatened against the Company or
any of the Subsidiaries before any court or administrative agency or
otherwise which, if determined adversely to the Company or any of the
Subsidiaries, might result in any material adverse change in the
earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of the
Company and the Subsidiaries taken as a whole or prevent the
consummation of the transactions contemplated hereby, except as set
forth in the Registration Statement.
(ix) The Company and the Subsidiaries have good and marketable
title to all of the properties and assets reflected in the financial
statements (or as described in the Registration Statement) hereinabove
described, subject to no lien, mortgage, pledge, charge or encumbrance
of any kind, except those reflected in such financial statements (or
as described in the Registration Statement) or which are not material
in amount. The Company and the Subsidiaries occupy their leased
properties under valid and binding leases conforming in all material
respects to the description thereof set forth in the Registration
Statement.
(x) The Company and the Subsidiaries have filed all federal,
state, local and foreign income tax returns which have been required
to be filed and have paid all taxes indicated by said returns and all
assessments received by them or any of them to the extent that such
taxes have become due, except where the Company or a Subsidiary is
contesting such taxes in good faith and in accordance with the laws
and regulations of the applicable jurisdiction. All tax liabilities
have been adequately provided for in the financial statements of the
Company in accordance with generally accepted accounting principles,
and, other than as disclosed in the Registration Statement (which the
Company does not believe will have a material adverse effect on the
results of operations or financial condition of the Company and the
Subsidiaries taken as a whole), the Company does not know of any
actual or proposed additional material tax assessments.
(xi) Since the respective dates as of which information is
given in the Registration Statement, as it may be amended or
supplemented, there has not been any material adverse change or any
development that could reasonably be expected to result in a
material adverse change in or affecting the earnings,
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business, management, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company and
its Subsidiaries taken as a whole, whether or not occurring in the
ordinary course of business, and there has not been any material
transaction entered into or any material transaction that is
probable of being entered into by the Company or the Subsidiaries,
other than transactions in the ordinary course of business and
changes and transactions described in or contemplated by the
Registration Statement, as it may be amended or supplemented. The
Company and the Subsidiaries have no material contingent
obligations which are not disclosed in the Company's financial
statements, in accordance with generally accepted accounting
principles, which are included in the Registration Statement.
(xii) Neither the Company nor the Subsidiaries is, nor with
the giving of notice or lapse of time or both, will be, in violation
of or in default under its Articles of Incorporation, as amended (the
"Charter"), or By-Laws or under any agreement, lease, contract,
indenture or other instrument or obligation to which it is a party or
by which it, or any of its properties, is bound and which default
would have a material effect on the condition, financial or otherwise
of the Company and the Subsidiaries taken as a whole or the business,
management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company and the
Subsidiaries taken as a whole. The execution and delivery of this
Agreement and the consummation of the transactions herein contemplated
and the fulfillment of the terms hereof will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or any of the
Subsidiaries is a party, or of the Charter or By-laws of the Company
or any of the Subsidiaries or any order, rule or regulation applicable
to the Company or any of the Subsidiaries of any court or of any
regulatory body or administrative agency or other governmental body
having jurisdiction.
(xiii) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body necessary in connection with
the execution and delivery by the Company of this Agreement and the
consummation of the transactions herein contemplated (except such
additional steps as may be required by the Commission, the National
Association of Securities Dealers, Inc. (the "NASD") or such
additional steps as may be necessary to qualify the Shares for public
offering by the Underwriters under state securities or Blue Sky laws)
has been obtained or made and is in full force and effect.
(xiv) The Company and each of the Subsidiaries owns or
possesses adequate licenses or other rights to use all patents, patent
applications, trademarks, trademark applications, service marks,
service xxxx applications, trade names, copyrights, manufacturing
processes, formulae, trade secrets and know-how or
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other information or intellectual property rights (collectively,
"Intellectual Property") described in the Prospectus as owned by or
used by the Company and the Subsidiaries or which is necessary to
the conduct of its business as now conducted by the Company and the
Subsidiaries as described in the Prospectus. The Company is not
aware of any infringement of or conflict with the rights or claims
of others with respect to any of the products or Intellectual
Property of the Company or the Subsidiaries which could have a
material adverse effect on the business, financial condition or
prospects of the Company. The Company is not aware of any ongoing
infringement of any of the Intellectual Property rights of the
Company or the Subsidiaries by any third party which could have a
material adverse effect on the business, financial condition or
prospects of the Company and the Subsidiaries taken as a whole.
(xv) Neither the Company, nor to the Company's best knowledge,
any of its affiliates, has taken or may take, directly or indirectly,
any action designed to cause or result in, or which has constituted or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of Class A Common Stock to
facilitate the sale or resale of the Shares. The Company acknowledges
that the Underwriters may engage in passive market making transactions
in the Shares on Nasdaq National Market in accordance with Rule 103 of
Regulation M.
(xvi) The Company and each of the Subsidiaries holds all
material licenses, certificates and permits from governmental
authorities which are necessary to the conduct of their businesses.
(xvii) The Company is not an "investment company" within the
meaning of such term under the Investment Company Act of 1940 (the
"1940 Act") and the rules and regulations of the Commission
thereunder.
(xviii) The Company and each of its Subsidiaries 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
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.
(xix) The Company and each of its Subsidiaries carries, or is
covered by, insurance in such amounts and covering such risks that the
Company and the Subsidiaries reasonably believe is adequate for the
conduct of their respective businesses and the value of their
respective properties and is customary for companies engaged in
similar industries.
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(xx) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which the Company would have any liability;
the Company has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan," or (ii) Sections 412 or 4971 of
the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "Code"); and
each "pension plan" for which the Company would have any liability
that is intended to be qualified under Section 401(a) of the Code is
so qualified in all material respects and nothing has occurred,
whether by action or by failure to act, which would cause the loss of
such qualification.
(xxi) Other than as contemplated by this Agreement, the
Company has not incurred any liability for any finder's or broker's
fee or agent's commission in connection with the execution and
delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(xxii) There is no document or contract of a character
required to be described in the Registration Statement or the
Prospectus to be filed as an exhibit to the Registration Statement
which is not described or filed as required. All such contracts to
which the Company or the Subsidiaries are a party have been fully
authorized, executed and delivered by the Company or the Subsidiaries
and constitute valid and binding agreements of the Company or the
Subsidiaries, as the case may be, and are enforceable against the
Company or the Subsidiaries, as the case may be, in accordance with
the terms thereof, except as may be limited by the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditor's rights generally.
(xxiii) Except as set forth in the Registration Statement and
the Prospectus (i) the property, assets and operations of the Company
and the Subsidiaries comply in all material respects with all
applicable Environmental Laws (as defined below) (except to the extent
that failure to comply with such Environmental Laws would not have a
material adverse effect on the properties, assets, operations,
business or financial condition of the Company and the Subsidiaries
taken as a whole), (ii) to the knowledge of the Company after
reasonable inquiry (except as described in the Registration
Statement), none of the properties, assets or operations of the
Company or the Subsidiaries is the subject of any federal, state or
local investigation evaluating whether any remedial action is needed
to respond to a release of any Hazardous Materials (as defined below)
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into the environment or is in material contravention of any federal,
state or local law, order or regulation that could have a material
adverse effect on the properties, assets, operations, business or
financial condition of the Company and the Subsidiaries, taken as a
whole (iii) neither the Company nor the Subsidiaries has received any
notice or claim, nor are there pending, threatened or reasonably
anticipated lawsuits against them, with respect to violations of an
Environmental Law or in connection with any release of any Hazardous
Materials into the environment, and (iv) to the knowledge of the
Company, neither the Company nor the Subsidiaries has any material
contingent liability in connection with any release of any Hazardous
Materials into the environment. As used herein, "Environmental Laws"
means any Federal, state, territorial, or local law, common doctrine,
rule, order, decree, judgment, injunction, license, permit or
regulation relating to environmental matters, and "Hazardous
Materials" means those substances that are regulated by or form the
basis of liability under any Environmental Law.
(xxiv) Except where the failure to do so would not have a
material adverse effect on the earnings, business, management,
properties, assets, rights, operations, condition (financial or
otherwise) or prospects of the Company and the Subsidiaries taken as a
whole, the Company and the Subsidiaries have obtained and have
maintained in good standing any and all licenses, permits, consents
and authorizations required to be obtained by them under all laws or
regulations relating to their respective businesses, including without
limitation, laws or regulations relating to the manufacture,
production, wholesale and retail sale, storage. labeling and
distribution of products intended for human consumption (collectively,
the "Laws"), and all such licenses, permits, consents and
authorizations remain in full force and effect. The Company and the
Subsidiaries are in compliance with the Laws in all material respects
(except to the extent that failure to comply with such Laws would not
have a material adverse effect on the earnings, business, management,
properties, assets, rights, operations, condition (financial or
otherwise) or prospects of the Company and the Subsidiaries taken as a
whole) and there is no pending, or, to the Company's or the
Subsidiaries' knowledge, threatened, action or proceeding against the
Company or any of the Subsidiaries relating to the Laws, other than
any such actions or proceedings which, individually or in the
aggregate, if adversely determined, would not result in a material
adverse effect on the earnings, business, management, properties,
assets, rights, operations, condition (financial or otherwise) or
prospects of the Company and the Subsidiaries taken as a whole.
(xxv) The Company has completed a thorough due diligence
review of the Minot Business and has no reason to believe that any of
the representations or warranties of Minot or Xxxxxxx set forth in the
Asset Purchase Agreement are not true and accurate in all material
respects.
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(xxvi) The representations and warranties of the Company set
forth in the Asset Purchase Agreement are true and accurate in all
material respects and the Company has no reason to believe that such
transaction will not be consummated in accordance with the terms set
forth in the Asset Purchase Agreement and as described in the
Registration Statement.
(xxvii) To the Company's knowledge, there are no affiliations
or associations between any member of the NASD and any of the
Company's officers, directors or 5%-or-greater securityholders.
2. PURCHASE, SALE AND DELIVERY OF THE FIRM SHARES.
(a) On the basis of the representations, warranties and covenants
herein contained, and subject to the conditions herein set forth, the
Company agrees to issue and sell to the Underwriters and each Underwriter
agrees, severally and not jointly, to purchase, at a price of $[ ] per
share, the number of Firm Shares set forth opposite the name of each
Underwriter in Schedule I hereof, subject to adjustments in accordance with
Section 9 hereof.
(b) Payment for the Firm Shares to be sold hereunder is to be made in
Federal (same day) Funds to an account designated by the Company for the
shares to be issued and sold by it against delivery of certificates
therefor through the facilities of the Depository Trust Company, New York,
New York. Such payment and delivery are to be made through the facilities
of the Depository Trust Company at 10:00 a.m., New York time, on the third
business day after the date of this Agreement or at such other time and
date not later than five business days thereafter as you and the Company
shall agree upon, such time and date being herein referred to as the
"Closing Date." (As used herein, "business day" means a day on which the
New York Stock Exchange is open for trading and on which banks in New York
are open for business and not permitted by law or executive order to be
closed.)
(c) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth,
the Company hereby grants an option to the several Underwriters to purchase
the Option Shares at the price per share as set forth in the first
paragraph of this Section 2. The option granted hereby may be exercised in
whole or in part by giving written notice (i) at any time before the
Closing Date, or (ii) only once thereafter within 30 days after the date of
this Agreement, by you, as Representatives of the several Underwriters, to
the Company setting forth the number of Option Shares as to which the
several Underwriters are exercising the option, the names and denominations
in which the Option Shares are to be registered and the time and date at
which such certificates are to be delivered. The time and date at which
certificates for Option Shares are to be delivered shall be determined by
the Representatives but shall not be earlier than three nor later than 10
full business days after the exercise of such option, nor in any event
prior to the Closing Date (such time and date being herein referred to as
the "Option Closing Date"). If the date of exercise of the
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option is three or more days before the Closing Date, the notice of
exercise shall set the Closing Date as the Option Closing Date. The
number of Option Shares to be purchased by each Underwriter shall be in
the same proportion to the total number of Option Shares being purchased
as the number of Firm Shares being purchased by such Underwriter bears
to the total number of Firm Shares, adjusted by you in such manner as to
avoid fractional shares. The option with respect to the Option Shares
granted hereunder may be exercised only to cover overallotments in the
sale of the Firm Shares by the Underwriters. You, as Representatives of
the several Underwriters, may cancel such option at any time prior to
its expiration by giving written notice of such cancellation to the
Company. To the extent, if any, that the option is exercised, payment
for the Option Shares shall be made on the Option Closing Date in
Federal (same day) Funds to an account designated by the Company for the
Option Shares to be issued and sold by the Company against delivery of
certificates therefor through the facilities of the Depository Trust
Company, New York, New York.
3. OFFERING BY THE UNDERWRITERS.
It is understood that the several Underwriters are to make a public
offering of the Firm Shares as soon as the Representatives deem it
advisable to do so. The Firm Shares are to be initially offered to the
public at the initial public offering price set forth in the Prospectus.
The Representatives may from time to time thereafter change the public
offering price and other selling terms. To the extent, if at all, that any
Option Shares are purchased pursuant to Section 2 hereof, the Underwriters
will offer them to the public on the foregoing terms.
It is further understood that you will act as the Representatives for
the Underwriters in the offering and sale of the Shares in accordance with
a Master Agreement Among Underwriters entered into by you and the several
other Underwriters.
4. COVENANTS OF THE COMPANY.
The Company covenants and agrees with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the
Registration Statement to become effective or, if the procedure in
Rule 430A of the Rules and Regulations is followed, to prepare and
timely file with the Commission under Rule 424(b) of the Rules and
Regulations a Prospectus in a form approved by the Representatives
containing information previously omitted at the time of effectiveness
of the Registration Statement in reliance on Rule 430A of the Rules
and Regulations, (B) not file any amendment to the Registration
Statement or supplement to the Prospectus or documents incorporated by
reference therein of which the Representatives shall not previously
have been advised and furnished with a copy or to which the
Representatives shall have reasonably objected in writing or which is
not in compliance with the Rules and Regulations, and (C) file on a
timely basis all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
subsequent to the date
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of the Prospectus and prior to the offering of the Shares by
Underwriters. To the extent applicable, the copies of the
Registration Statement and each amendment thereto (including all
exhibits filed therewith), any Preliminary Prospectus or Prospectus
(in each case, as amended or supplemented) furnished to the
Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(ii) The Company will advise the Representatives promptly
(A) when the Registration Statement or any post-effective amendment
thereto shall have become effective, (B) of receipt of any comments
from the Commission, (C) of any request of the Commission for
amendment of the Registration Statement or for supplement to the
Prospectus or for any additional information, and (D) of the issuance
by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the use of the Prospectus or of the
institution of any proceedings for that purpose. The Company will use
its best efforts to prevent the issuance of any such stop order
preventing or suspending the use of the Prospectus and to obtain as
soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in
endeavoring to qualify the Shares for sale under the securities laws
of such jurisdictions as the Representatives may reasonably have
designated in writing and will make such applications, file such
documents, and furnish such information as may be reasonably required
for that purpose, provided the Company shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction where it is not now so
qualified or required to file such a consent. The Company will, from
time to time, prepare and file such statements, reports, and other
documents, as are or may be required to continue such qualifications
in effect for so long a period as the Representatives may reasonably
request for distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any Preliminary
Prospectus as the Representatives may reasonably request. The Company
will deliver to, or upon the order of, the Representatives during the
period when delivery of a Prospectus is required under the Securities
Act, as many copies of the Prospectus in final form, or as thereafter
amended or supplemented, as the Representatives may reasonably
request. The Company will deliver to the Representatives at or before
the Closing Date, four signed copies of the Registration Statement and
all amendments thereto, including all exhibits filed therewith, and
will deliver to the Representatives such number of copies of the
Registration Statement (including such number of copies of the
exhibits filed therewith that may reasonably be requested), including
documents incorporated by reference therein, and of all amendments
thereto, as the Representatives may reasonably request.
-12-
(v) The Company will comply with the Securities Act and the
Rules and Regulations, and the Exchange Act and the rules and
regulations of the Commission thereunder, so as to permit the
completion of the distribution of the Shares as contemplated in this
Agreement and the Prospectus. If during the period in which a
prospectus is required by law to be delivered by an Underwriter or
dealer, any event shall occur as a result of which, in the judgment of
the Company or in the reasonable opinion of the Underwriters, it
becomes necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances
existing at the time the Prospectus is delivered to a purchaser, not
misleading, or, if it is necessary at any time to amend or supplement
the Prospectus to comply with any law, the Company promptly will
either (i) prepare and file with the Commission an appropriate
amendment to the Registration Statement or supplement to the
Prospectus or (ii) prepare and file with the Commission an appropriate
filing under the Exchange Act which shall be incorporated by reference
in the Prospectus so that the Prospectus, as so amended or
supplemented, will not, in the light of the circumstances when it is
so delivered, be misleading, or so that the Prospectus will comply
with the law.
(vi) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not
later than 15 months after the effective date of the Registration
Statement, an earning statement (which need not be audited) in
reasonable detail, covering a period of at least 12 consecutive months
beginning after the effective date of the Registration Statement,
which earning statement shall satisfy the requirements of
Section 11(a) of the Securities Act and Rule 158 of the Rules and
Regulations and will advise you in writing when such statement has
been so made available.
(vii) Prior to the Closing Date, the Company will furnish to
the Underwriters, as soon as they have been prepared by or are
available to the Company, a copy of any unaudited interim financial
statements of the Company for any period subsequent to the period
covered by the most recent financial statements appearing in the
Registration Statement and the Prospectus.
(viii) The Company will, for a period of five years from the
Closing Date, deliver to the Representatives copies of annual reports
and copies of all other documents, reports and information furnished
by the Company to its shareholders or filed with any securities
exchange pursuant to the requirements of such exchange or with the
Commission pursuant to the Securities Act or the Exchange Act. The
Company will deliver to the Representatives similar reports with
respect to significant subsidiaries, as that term is defined in the
Rules and Regulations, which are not consolidated in the Company's
financial statements.
(ix) No offering, sale, short sale or other disposition of any
shares of Class A Common Stock of the Company or other securities
convertible into or exchangeable or exercisable for shares of Class A
Common Stock or derivative of
-13-
Class A Common Stock (or agreement for such) will be made for a
period of 90 days after the date of this Agreement, directly or
indirectly, by the Company otherwise than hereunder or with the
prior written consent of BT Alex. Xxxxx, except that the Company
may, without such consent, (A) issue shares upon exercise of
options outstanding on the date of this Agreement issued pursuant
to the Company's 1987 Stock Option Plan, 1989 Stock Option Plan and
1995 Stock Option Plan, (B) grant options, offer to sell and sell
shares of its Class A Common Stock to its employees, directors and
consultants pursuant to the 1995 Stock Option Plan, (C) issue
shares of Series A Common Stock to consummate the acquisition of
the Minot Business as set forth in the Asset Purchase Agreement and
(D) issue shares of capital stock in connection with any other
business acquisition by the Company or the Subsidiaries, provided,
however, that each of the recipients thereof agree not to offer,
sell or otherwise transfer such securities for the remainder of the
90-day period referenced above.
(x) The Company will complete and file an Application for
Listing of Additional Shares with, and use its best efforts to list
the Shares on, The Nasdaq National Market.
(xi) The Company has caused each officer and director of the
Company to furnish to you, on or prior to the date of this agreement,
a letter or letters (a "Lockup Agreement"), in form and substance
satisfactory to the Underwriters, pursuant to which each such person
has agreed for a period expiring 90 days after the date of the
Prospectus not to (A) offer to sell, contract to sell, transfer or
otherwise dispose of, directly or indirectly, any shares of capital
stock of the Company, including shares of common stock of any series
or class, any options, rights or warrants to purchase any shares of
capital stock of the Company (including any stock appreciation right,
or similar right with an exercise or conversion privilege at a price
related to, or derived from, the market price of the capital stock of
the Company) or any securities convertible into or exchangeable for
shares of capital stock of the Company owned directly by such
director, officer or shareholder or with respect to which such
director, officer or shareholder has the power of disposition
(including, without limitation, shares of capital stock of the Company
which such person may be deemed to beneficially own in accordance with
the rules and regulations promulgated under the Exchange Act) or
(B) engage in any hedging transactions (including short sales, put and
call options, cashless collar transactions or other forms of
derivative security transactions) with respect to the Class A Common
Stock that may have an impact on the market price of the Class A
Common Stock.
(xii) The Company shall apply the net proceeds of its sale of
the Shares as set forth in the Prospectus.
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(xiii) Until November 30, 1999, the Company will notify the
Representatives in writing of any change in its accounting policies
regarding inventory at least 30 days prior to such proposed change.
(xiv) The Company shall not invest, or otherwise use the
proceeds received by the Company from its sale of the Shares in such a
manner as would require the Company or any of the Subsidiaries to
register as an investment company under the 1940 Act.
(xv) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a
registrar for the Class A Common Stock.
(xvi) The Company will not take, directly or indirectly, any
action designed to cause or result in, or that has constituted or
might reasonably be expected to constitute, the stabilization or
manipulation of the price of any securities of the Company.
5. COSTS AND EXPENSES.
The Company will pay all costs, expenses and fees incident to the
performance of its obligations under this Agreement, including, without
limiting the generality of the foregoing, the following: accounting
fees of the Company; the fees and disbursements of counsel for the
Company; the cost of printing and delivering to, or as requested by, the
Underwriters copies of the Registration Statement, Preliminary
Prospectuses, the Prospectus, this Agreement, the Underwriters'
Invitation Letter, the Listing Application, the Blue Sky Survey and any
supplements or amendments thereto; the filing fees of the Commission;
the filing fees of the NASD; the Additional Listing Fee of The Nasdaq
Stock Market; and the expenses, including the fees and disbursements of
counsel for the Underwriters not to exceed $2,000, incurred in
connection with the qualification of the Shares under State securities
or Blue Sky laws. Any transfer taxes imposed on the sale of the Shares
to the several Underwriters will be paid by the Company. The Company
agrees to pay all costs and expenses of the Underwriters (including the
fees and disbursements of counsel for the Underwriters) incident to the
offer and sale of directed Shares of the Class A Common Stock by the
Underwriters, if any, to employees and persons having business
relationships with the Company. The Company shall not, however, be
required to pay for any of the Underwriters' expenses (other than those
related to qualification under NASD regulation and State securities or
Blue Sky laws) except that, if this Agreement shall not be consummated
because the conditions in Section 6 hereof are not satisfied, or because
this Agreement is terminated by the Representatives pursuant to Section
11(a)(i) or 11(b) hereof, or by reason of any failure, refusal or
inability on the part of the Company to perform any undertaking or
satisfy any condition of this Agreement or to comply with any of the
terms hereof on its part to be performed, unless such failure to satisfy
said condition or to comply with said terms be due to the default or
omission of any Underwriter, then the Company shall reimburse the
-15-
several Underwriters for reasonable and accountable out-of-pocket
expenses, including fees and disbursements of counsel, reasonably
incurred in connection with investigating, marketing and proposing to
market the Shares or in contemplation of performing their obligations
hereunder up to a maximum of $100,000; but the Company shall not in any
event be liable to any of the several Underwriters for damages on
account of loss of anticipated profits from the sale by them of the
Shares.
6. CONDITIONS TO OBLIGATIONS OF THE UNDERWRITERS.
The several obligations of the Underwriters to purchase the Firm
Shares on the Closing Date and the Option Shares, if any, on the Option
Closing Date are subject to the accuracy, as of the Closing Date or the
Option Closing Date, as the case may be, of the representations and
warranties of the Company contained herein, and to the performance by the
Company of its covenants and obligations hereunder and to the following
additional conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective and any and all filings required by
Rule 424 and Rule 430A of the Rules and Regulations shall have been
made, and any request of the Commission for additional information (to
be included in the Registration Statement or otherwise) shall have been
disclosed to the Representatives and complied with to their reasonable
satisfaction. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, 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,
and no injunction, restraining order or order of any nature by a federal
or state court of competent jurisdiction shall have been issued as of
the Closing Date or Option Closing Date, as the case may be, which would
prevent the issuance of the Shares.
(b) The Representatives shall have received on the Closing Date or
the Option Closing Date, as the case may be, the opinion of Xxxxx &
Lardner, counsel for the Company, dated the Closing Date or the Option
Closing Date, as the case may be, addressed to the Underwriters (and
stating that it may be relied upon by counsel to the Underwriters) to the
effect that:
(i) The Company has been duly organized and is validly existing
as a corporation in good standing (as such concept now exists under
Wisconsin law) under the laws of the State of Wisconsin, with
corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement.
(ii) The Company has authorized capital stock as set forth under
the caption "Capitalization" in the Prospectus;); all of the Shares
conform in all material respects to the description thereof contained
in the Prospectus; the certificates for the Shares are in due and
proper form under Wisconsin law; the shares of Class A Common Stock,
to be sold by the Company pursuant to this Agreement have been duly
authorized and will be validly issued, fully paid and
-16-
nonassessable (except for certain statutory personal liability
which may be imposed upon shareholders under Section 180.0622(2)(b)
of the WBCL) when issued and paid for as contemplated by this
Agreement; and no preemptive rights of shareholders exist with
respect to any of the Shares or the issue or sale thereof.
(iii) Except as described in or contemplated by the
Prospectus, to the knowledge of such counsel, (a) there are no
outstanding securities of the Company convertible or exchangeable into
or evidencing the right to purchase or subscribe for any shares of
capital stock of the Company, and (b) there are no outstanding or
authorized options, warrants or rights of any character obligating the
Company to issue any shares of its capital stock or any securities
convertible or exchangeable into or evidencing the right to purchase
or subscribe for any shares of such stock; and except as described in
the Prospectus, to the knowledge of such counsel, no holder of any
securities of the Company or any other person has the right,
contractual or otherwise, which has not been satisfied or effectively
waived, to cause the Company to sell or otherwise issue to them, or to
permit them to underwrite the sale of, any of the Shares or the right
to have any Class A Common Stock or other securities of the Company
included in the Registration Statement or the right, as a result of
the filing of the Registration Statement, to require registration
under the Securities Act of any shares of Class A Common Stock or
other securities of the Company.
(iv) The Registration Statement has become effective under the
Securities Act and, to the knowledge of such counsel, no stop order
proceedings with respect thereto have been instituted or are pending
or threatened under the Securities Act.
(v) The Registration Statement, the Prospectus and each
amendment or supplement thereto and documents incorporated by
reference therein as filed with the Commission comply as to form in
all material respects with the requirements of the Securities Act or
Exchange Act, as applicable, and the applicable rules and regulations
thereunder (except that such counsel need express no opinion as to the
financial statements and related schedules or financial or statistical
data included or incorporated by reference therein). The conditions
for the use of Form S-3 set forth in the General Instructions thereto
have been satisfied.
(vi) The statements under the captions "Risk Factors --
Regulation," "Risk Factors -- Certain Anti-Takeover Considerations,"
"Risk Factors -- Subsequent Share Issuances; Shares Eligible for
Future Sale," "Business -- Strategic Minot Acquisition," "Business --
Regulation," "Business -- Trademarks and Formulae" and "Description of
Capital Stock" in the Prospectus, insofar as such statements
constitute a summary of documents referred to therein or matters of
domestic law, fairly summarize in all material respects the documents
or matters of law to the extent required by the Rules and Regulations
with respect to such documents and matters.
-17-
(vii) Such counsel does not know of any contracts or
documents required to be filed as exhibits to, or incorporated by
reference in, the Registration Statement or described in the
Registration Statement or the Prospectus which are not so filed,
incorporated by reference, or described as required, and such
contracts and documents as are summarized in the Registration
Statement or the Prospectus are fairly summarized in all material
respects to the extent required by the Rules and Regulations.
(viii) Such counsel knows of no material legal or governmental
proceedings pending or threatened against the Company or any of the
Subsidiaries except as set forth in the Prospectus.
(ix) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated do not and will
not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, the Charter or By-laws
of the Company, or any agreement or instrument known to such counsel
to which the Company or any of the Subsidiaries is a party or by which
the Company or any of the Subsidiaries may be bound.
(x) This Agreement has been duly authorized, executed and
delivered by the Company.
(xi) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or
other governmental body is necessary in connection with the execution
and delivery of this Agreement and the consummation of the
transactions herein contemplated (other than as may be required by the
NASD or as required by State securities and Blue Sky laws as to which
such counsel need express no opinion), except such as have been
obtained or made, specifying the same.
(xii) The Company is not, and will not become, as a result of
the consummation of the transactions contemplated by this Agreement,
and application of the net proceeds therefrom as described in the
Prospectus, required to register as an investment company under the
1940 Act.
In rendering such opinion, Xxxxx & Xxxxxxx may rely as to matters
governed by the laws of states other than Wisconsin or federal laws on
local counsel in such jurisdictions, provided that in each case Xxxxx &
Lardner shall state that they believe that they and the Underwriters are
justified in relying on such other counsel. In addition to the matters set
forth above, such opinion shall also include a statement to the effect that
nothing has come to the attention of such counsel which leads them to
believe that (i) the Registration Statement, at the time it became
effective under the Securities Act (but after giving effect to any
modifications incorporated therein pursuant to Rule 430A under the
Securities Act) and as of the Closing Date or the Option Closing Date, as
the case may be, contained an untrue statement of a material fact or
omitted to state a material fact
-18-
required to be stated therein or necessary to make the statements
therein not misleading, and (ii) the Prospectus, or any supplement
thereto, on the date it was filed pursuant to the Rules and Regulations
and as of the Closing Date or the Option Closing Date, as the case may
be, contained an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements, in the light
of the circumstances under which they are made, not misleading (except
that such counsel need express no view as to financial statements,
schedules and statistical information therein). With respect to such
statement, Xxxxx & Xxxxxxx may state that their belief is based upon the
procedures set forth therein, but is without independent check and
verification.
(c) The Representatives shall have received on the Closing Date or
the Option Closing Date, as the case may be, the opinion of Xxxxx Xxxxx,
Esq., Vice President- Administration and Corporate Secretary of the
Company, dated as of the Closing Date, or the Option Closing Date as the
case may be, addressed to the Underwriters (and stating that it may be
relied upon by counsel to the Underwriters) to the effect that:
(i) Each of the Subsidiaries has been duly organized and is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, with corporate power and
authority to own or lease its properties and conduct its business,
as described in the Registration Statement; and the Company and
each of the Subsidiaries are duly qualified to transact business in
all jurisdictions in which the conduct of its business requires
such qualification, or in which the failure to qualify would have a
materially adverse effect upon the business of the Company and the
Subsidiaries taken as a whole, and to such counsel's knowledge, the
outstanding shares of capital stock of each of the Subsidiaries is
owned free and clear of all liens, encumbrances and equities and
claims, and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert
any obligations into any shares of capital stock or of ownership
interests in the Company or the Subsidiaries are outstanding.
(ii) The Company has authorized and outstanding capital stock as
set forth under the caption "Capitalization in the Prospectus; the
outstanding shares of Class A Common Stock and Class B Common Stock of
the Company, have been duly authorized and validly issued and are
fully paid and nonassessable (except for certain statutory personal
liability which may be imposed upon shareholders under Section
180.0622(2)(b) of the WBCL.
(iii) Such counsel does not know of any contracts or
documents required to be filed as exhibits to, or incorporated by
reference in, the Registration Statement or described in the
Registration Statement or the Prospectus which are not so filed,
incorporated by reference, or described as required, and such
contracts and documents as are summarized in the Registration
Statement or the Prospectus are fairly summarized in all material
respects to the extent required by the Rules and Regulations.
-19-
(iv) Such counsel knows of no material legal or governmental
proceedings pending or threatened against the Company or any of the
Subsidiaries except as set forth in the Prospectus.
In addition to the matters set forth above, such opinion shall also
include a statement to the effect that nothing has come to the attention of
such counsel which leads him to believe that (i) the Registration
Statement, at the time it became effective under the Securities Act (but
after giving effect to any modifications incorporated therein pursuant to
Rule 430A under the Securities Act) and as of the Closing Date or the
Option Closing Date, as the case may be, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
(ii) the Prospectus, or any supplement thereto, on the date it was filed
pursuant to the Rules and Regulations and as of the Closing Date or the
Option Closing Date, as the case may be, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements, in the light of the circumstances under which they are
made, not misleading (except that such counsel need express no view as to
financial statements, schedules and statistical information therein).
(d) The Representatives shall have received from Xxxxxxxx
Xxxxxxxxx, counsel for the Underwriters, an opinion dated the Closing
Date or the Option Closing Date, as the case may be, substantially to
the effect specified in subparagraphs (ii), (iii), (iv), (ix) and (xi)
of Paragraph (b) of this Section 6, and that the Company is a duly
organized and validly existing corporation under the laws of the State
of Wisconsin. In rendering such opinion, Xxxxxxxx Ingersoll or Xxxxxxxx
Xxxxxxxxx Professional Corporation ("Xxxxxxxx Ingersoll") may rely as to
all matters governed other than by the laws of the State of New Jersey
or the Commonwealth of Pennsylvania or federal laws on the opinion of
counsel referred to in Paragraph (b) of this Section 6. In addition to
the matters set forth above, such opinion shall also include a statement
to the effect that nothing has come to the attention of such counsel
which leads them to believe that (i) the Registration Statement, or any
amendment thereto, as of the time it became effective under the
Securities Act (but after giving effect to any modifications
incorporated therein pursuant to Rule 430A under the Securities Act) as
of the Closing Date or the Option Closing Date, as the case may be,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and (ii) the Prospectus, or any
supplement thereto, on the date it was filed pursuant to the Rules and
Regulations and as of the Closing Date or the Option Closing Date, as
the case may be, contained an untrue statement of a material fact or
omitted to state a material fact, necessary in order to make the
statements, in the light of the circumstances under which they are made,
not misleading (except that in each case such counsel need express no
view as to financial statements, schedules, accounting and statistical
information therein). With respect to such statement, Xxxxxxxx
Xxxxxxxxx, may state that their belief is based upon the procedures set
forth therein, but is without independent check and verification.
-20-
(e) The Representatives shall have received from Xxxxxx, Xxxxx &
Bockius LLP, counsel for Minot, a letter in form and substance satisfactory
to the Representatives, stating that the Underwriters may rely upon their
opinion to the Company in connection with the acquisition of the Minot
Business, as if their opinion were addressed specifically to them. Such
opinion shall be in form and substance satisfactory to the Representatives.
(f) The Representatives shall have received from Xxxxx & Xxxxxxx,
counsel for the Company in connection with the Minot Acquisition, a letter
in form and substance satisfactory to the Representatives, stating that the
Underwriters may rely upon their opinion to Minot, as if their opinion were
addressed specifically to them. Such opinion shall be in form and
substance satisfactory to the Representatives.
(g) The Representatives shall have received, on each of the dates
hereof, the Closing Date and the Option Closing Date, as the case may be, a
letter dated the date hereof, the Closing Date or the Option Closing Date,
as the case may be, in form and substance satisfactory to you, of Deloitte
& Touche LLP and BDO Xxxxxxx LLP confirming that they are independent
public accountants with respect to the Company and Minot, respectively,
within the meaning of the Securities Act and the applicable published Rules
and Regulations thereunder and stating that in their opinion the financial
statements and schedules examined by them and included in the Registration
Statement comply in form in all material respects with the applicable
accounting requirements of the Securities Act and the related published
Rules and Regulations; and containing such other statements and information
as is ordinarily included in accountants' "comfort letters" to Underwriters
with respect to the financial statements and certain financial and
statistical information contained in the Registration Statement and
Prospectus.
(h) The Representatives shall have received on the Closing Date or
the Option Closing Date, as the case may be, a certificate or certificates
of the Chief Executive Officer and the Chief Financial Officer of the
Company to the effect that, as of the Closing Date or the Option Closing
Date, as the case may be, each of them severally represents as follows:
(i) The Registration Statement has become effective under the
Securities Act and no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for such
purpose have been taken or are, to his knowledge, contemplated by the
Commission;
(ii) The representations and warranties of the Company contained
in Section 1 hereof are true and correct as of the Closing Date or the
Option Closing Date, as the case may be;
(iii) All filings required to have been made pursuant to
Rules 424 or 430A under the Securities Act have been made;
(iv) He has carefully examined the Registration Statement and
the Prospectus and, in his or her opinion, as of the effective date
of the Registration
-21-
Statement, the statements contained in the Registration Statement
were true and correct, and such Registration Statement and
Prospectus did not omit to state a material fact required to be
stated therein or necessary in order to make the statements therein
not misleading, and since the effective date of the Registration
Statement, no event has occurred which should have been set forth
in a supplement to or an amendment of the Prospectus which has not
been so set forth in such supplement or amendment; and
(v) Since the respective dates as of which information is given
in the Registration Statement and Prospectus, there has not been any
material adverse change or any development involving a prospective
material adverse change in or affecting the condition, financial or
otherwise, of the Company and the Subsidiaries taken as a whole or the
earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of the
Company and the Subsidiaries taken as a whole whether or not arising
in the ordinary course of business.
(i) The Company shall have furnished to the Representatives such
further certificates and documents confirming the representations and
warranties, covenants and conditions contained herein and related
matters as the Representatives may reasonably have requested.
(j) The Firm Shares and Option Shares, if any, have been
approved for listing on The Nasdaq National Market.
(k) The Lockup Agreements described in Section 4(a)(xi) are in
full force and effect.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in
all material respects satisfactory to the Representatives and to Xxxxxxxx
Xxxxxxxxx, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the obligations of the Underwriters hereunder may be terminated
by the Representatives by notifying the Company of such termination in
writing or by telegram at or prior to the Closing Date or the Option
Closing Date, as the case may be.
In such event, the Company and the Underwriters shall not be under any
obligation to each other (except to the extent provided in Sections 5 and 8
hereof).
7. CONDITIONS TO THE OBLIGATIONS OF THE COMPANY.
The obligation of the Company to issue, sell and deliver the Shares
required to be delivered as and when specified in this Agreement are
subject to the conditions that at the
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Closing Date or the Option Closing Date, as the case may be, no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and in effect or proceedings therefor initiated or
threatened.
8. INDEMNIFICATION.
(a) The Company agrees:
(i) to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of the
Securities Act against any losses, claims, damages or liabilities to
which such Underwriter or any controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (A) any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto, (B) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, or (C) any act or failure
to act, or any alleged act or failure to act, by any Underwriter in
connection with, or relating in any manner to, the Shares or the
offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising
out of or based upon matters covered by clause (A) or (B) above
(provided, that the Company shall not be liable under this clause (C)
to the extent that it is determined in a final judgment by a court of
competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through its
gross negligence or willful misconduct); provided, however, that the
Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement, or omission or
alleged omission made in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or such amendment or supplement, in
reliance upon and in conformity with written information furnished to
the Company by or through the Representatives specifically for use in
the preparation thereof. This indemnity obligation will be in
addition to any liability which the Company may otherwise have.
(ii) to reimburse each Underwriter and each controlling person
upon demand for any legal or other out-of-pocket expenses reasonably
incurred by such Underwriter or such controlling person in connection
with investigating or defending any such loss, claim, damage or
liability, action or proceeding or in responding to a subpoena or
governmental inquiry related to the offering of the Shares, whether or
not such Underwriter or controlling person is a party to any action or
proceeding. In the event that it is finally judicially determined
that the Underwriters were not entitled to receive payments for legal
and other expenses
-23-
pursuant to this subparagraph, the Underwriters will promptly return
all sums that had been advanced pursuant hereto.
(b) Each Underwriter severally and not jointly will indemnify and
hold harmless the Company, each of its directors, each of its officers who
have signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of the Securities Act, against any
losses, claims, damages or liabilities to which the Company or any such
director, officer or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, or
(ii) the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which they were
made; and will reimburse any legal or other expenses reasonably incurred by
the Company or any such director, officer or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that each Underwriter
will be liable in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission has been made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by
or through the Representatives specifically for use in the preparation
thereof. This indemnity agreement will be in addition to any liability
which such Underwriter may otherwise have.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to this Section 8, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought
(the "indemnifying party") in writing. No indemnification provided for in
Section 8(a) or (b) shall be available to any party who shall fail to give
notice as provided in this Section 8(c) if the party to whom notice was not
given was unaware of the proceeding to which such notice would have related
and was materially prejudiced by the failure to give such notice, but the
failure to give such notice shall not relieve the indemnifying party or
parties from any liability which it or they may have to the indemnified
party for contribution or otherwise than on account of the provisions of
Section 8(a) or (b). In case any such proceeding shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party and shall pay as
incurred the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel at its own expense. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred (or within 30 days
of presentation) the fees and expenses of
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the counsel retained by the indemnified party in the event (i) the
indemnifying party and the indemnified party shall have mutually agreed
to the retention of such counsel, (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them or (iii) the indemnifying
party shall have failed to assume the defense and employ counsel
acceptable to the indemnified party within a reasonable period of time
after notice of commencement of the action. It is understood that the
indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all such
indemnified parties. Such firm shall be designated in writing by you in
the case of parties indemnified pursuant to Section 8(a) and by the
Company in the case of parties indemnified pursuant to Section 8(b).
The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
In addition, the indemnifying party will not, without the prior written
consent of the indemnified party, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action or
proceeding of which indemnification may be sought hereunder (whether or
not any indemnified party is an actual or potential party to such claim,
action or proceeding) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action or proceeding.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions or proceedings in respect thereof)
referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Shares. If, however,
the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities,
(or actions or proceedings in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission
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or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Underwriters on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this
Section 8(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above in this Section 8(d)
shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 8(d),
(i) no Underwriter shall be required to contribute any amount in excess of
the underwriting discounts and commissions applicable to the Shares
purchased by such Underwriter and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations in
this Section 8(d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment
thereto, each party against whom contribution may be sought under this
Section 8 hereby consents to the jurisdiction of any court having
jurisdiction over any other contributing party, agrees that process issuing
from such court may be served upon him or it by any other contributing
party and consents to the service of such process and agrees that any other
contributing party may join him or it as an additional defendant in any
such proceeding in which such other contributing party is a party.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company 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 any
persons 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 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 8.
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9. DEFAULT BY UNDERWRITERS.
If on the Closing Date or the Option Closing Date, as the case may be,
any Underwriter shall fail to purchase and pay for the portion of the
Shares which such Underwriter has agreed to purchase and pay for on such
date (otherwise than by reason of any default on the part of the Company),
you, as Representatives of the Underwriters, shall use your reasonable
efforts to procure within 36 hours thereafter one or more of the other
Underwriters, or any others, to purchase from the Company such amounts as
may be agreed upon and upon the terms set forth herein, the Firm Shares or
Option Shares, as the case may be, which the defaulting Underwriter or
Underwriters failed to purchase. If during such 36 hours you, as such
Representatives, shall not have procured such other Underwriters, or any
others, to purchase the Firm Shares or Option Shares, as the case may be,
agreed to be purchased by the defaulting Underwriter or Underwriters, then
(a) if the aggregate number of shares with respect to which such default
shall occur does not exceed 10% of the Firm Shares or Option Shares, as the
case may be, covered hereby, the other Underwriters shall be obligated,
severally, in proportion to the respective numbers of Firm Shares or Option
Shares, as the case may be, which they are obligated to purchase hereunder,
to purchase the Firm Shares or Option Shares, as the case may be, which
such defaulting Underwriter or Underwriters failed to purchase, or (b) if
the aggregate number of shares of Firm Shares or Option Shares, as the case
may be, with respect to which such default shall occur exceeds 10% of the
Firm Shares or Option Shares, as the case may be, covered hereby, the
Company or you as the Representatives of the Underwriters will have the
right, by written notice given within the next 36-hour period to the
parties to this Agreement, to terminate this Agreement without liability on
the part of the nondefaulting Underwriters or of the Company except to the
extent provided in Section 8 hereof. In the event of a default by any
Underwriter or Underwriters, as set forth in this Section 9, the Closing
Date or Option Closing Date, as the case may be, may be postponed for such
period, not exceeding seven days, as you, as Representatives, may determine
in order that the required changes in the Registration Statement or in the
Prospectus or in any other documents or arrangements may be effected. The
term "Underwriter" includes any person substituted for a defaulting
Underwriter. Any action taken under this Section 9 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
10. NOTICES.
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered, telecopied or
telegraphed and confirmed as follows: if to the Underwriters, to BT Alex.
Xxxxx Incorporated, Xxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention:
Mr. Xxxxxxx Xxxxxxx; with a copy to BT Alex. Xxxxx, Incorporated, One
Bankers Trust Plaza, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention General Counsel; if to the Company, to Northland Cranberries,
Inc., X.X. Xxx 0000, 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxxx
00000-0000,
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Attention: Chief Financial Officer, with a copy to Xxxxxx X. Xxxxx, Esq.,
Xxxxx & Xxxxxxx, 000 X. Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
11. TERMINATION.
This Agreement may be terminated as follows:
(a) by you by notice to the Company at any time prior to the Closing
Date if any of the following has occurred: (i) since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, any material adverse change or any development involving a
prospective material adverse change in or affecting the condition,
financial or otherwise, of the Company and the Subsidiaries taken as a
whole or the earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of the Company
and the Subsidiaries taken as a whole whether or not arising in the
ordinary course of business, (ii) any outbreak or escalation of hostilities
or declaration of war or national emergency or other national or
international calamity or crisis or change in economic or political
conditions if the effect of such outbreak, escalation, declaration,
emergency, calamity, crisis or change on the financial markets of the
United States would, in your reasonable judgment, make it impracticable or
inadvisable to market the Shares or to enforce contracts for the sale of
the Shares, or (iii) suspension of trading in securities generally on the
New York Stock Exchange or the American Stock Exchange or limitation on
prices (other than limitations on hours or numbers of days of trading) for
securities on either such Exchange, (iv) the enactment, publication, decree
or other promulgation of any statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects or may materially and adversely affect the business or
operations of the Company, (v) declaration of a banking moratorium by
United States or New York State authorities, (vi) the suspension of trading
of the Company's Class A Common Stock by the Commission or The Nasdaq
National Market, or (vii) the taking of any action by any governmental body
or agency in respect of its monetary or fiscal affairs which in your
reasonable opinion has a material adverse effect on the securities markets
in the United States;
(b) as provided in Section 6 of this Agreement; or
(c) as provided in Section 9 of this Agreement.
12. SUCCESSORS.
This Agreement has been and is made solely for the benefit of the
Underwriters and the Company and their respective successors, executors,
administrators, heirs and assigns, and the officers, directors and
controlling persons referred to herein, and no other person will have any
right or obligation hereunder. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign merely because of such
purchase.
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13. INFORMATION PROVIDED BY UNDERWRITERS.
The Company and the Underwriters acknowledge and agree that the only
information furnished or to be furnished by any Underwriter to the Company
for inclusion in any Prospectus or the Registration Statement consists of
the information set forth in the last paragraph on the front cover page
(insofar as such information relates to the Underwriters), legends required
by Item 502(d) of Regulation S-K under the Securities Act and the
information under the caption "Underwriting" in the Prospectus.
14. MISCELLANEOUS.
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect
regardless of (a) any termination of this Agreement, (b) any investigation
made by or on behalf of any Underwriter or controlling person thereof, or
by or on behalf of the Company or its directors or officers, or
(c) delivery of and payment for the Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of
which she be deemed an original, but all of which together shall constitute
one and the same instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Maryland.
[Remainder of Page Intentionally Left Blank]
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If the foregoing letter is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
NORTHLAND CRANBERRIES, INC.
By: -----------------------
Xxxx Xxxxxxxxxxx
Chairman of the Board and
Chief Executive Officer
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
BT ALEX. XXXXX INCORPORATED
NationsBanc Xxxxxxxxxx Securities LLC
Xxxxx Xxxxxxx Inc.
As Representatives of the several
Underwriters listed on Schedule I
By: BT Alex. Xxxxx Incorporated
By: ---------------------------
Authorized Officer
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SCHEDULE I
SCHEDULE OF UNDERWRITERS
Number of Firm Shares
Underwriter to Be Purchased
----------- ---------------------
BT Alex. Xxxxx Incorporated ..............
NationsBanc Xxxxxxxxxx Securities LLC ....
Xxxxx Xxxxxxx Inc. .......................
---------
Total 5,000,000
---------
---------
EXHIBIT A
SUBSIDIARIES
Wildhawk, Inc., a Wisconsin corporation
Northland Cranberries Foreign Sales Corporation, a Virgin Islands corporation
W.S.C. Water Management Corporation, a Wisconsin corporation
Northland Insurance Center, Inc., a Wisconsin corporation
Minot Acquisition Subsidiary, a New Jersey corporation
