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Exhibit 1.1
Form of Underwriting Agreement
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EXHIBIT 1.1
3,500,000 Shares
HOME PRODUCTS INTERNATIONAL, INC.
Common Stock
____________, 1997
UNDERWRITING AGREEMENT
EVEREN Securities, Inc.
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3,500,000 Shares
HOME PRODUCTS INTERNATIONAL, INC.
Common Stock
($0.01 par value)
UNDERWRITING AGREEMENT
________, 1997
EVEREN Securities, Inc.
____________________
As Representatives of
the Several Underwriters
c/o EVEREN Securities, Inc.
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Ladies and Gentlemen:
Home Products International, Inc., a Delaware corporation (the "Company"),
and the shareholders of the Company listed on Schedule I hereto (collectively
referred to as the "Selling Shareholders"), confirm their agreement with each
other and the several underwriters listed in Schedule II hereto (the
"Underwriters"), for whom EVEREN Securities, Inc., and _____________________
(collectively, the "Representatives") have been duly authorized to act as
representatives, as follows:
1. THE SHARES. Subject to the terms and conditions set forth in this
agreement (the "Agreement"), the Company and the Selling Shareholders propose
to sell 3,500,000 shares of the Company's Common Stock, $0.01 par value (the
"Common Stock"), to the several Underwriters, of which 2,000,000 shares are to
be issued and sold by the Company and 1,500,000 shares are to be sold by the
Selling Shareholders. Such 3,500,000 shares of Common Stock proposed to be
sold by the Company and the Selling Shareholders are hereinafter referred to as
the "Firm Shares." The Company also proposes to grant to the Underwriters an
option to purchase up to 525,000 additional shares of Common Stock (the
"Additional Shares") if requested by the Underwriters as provided in Section 3
hereof. The Firm Shares and the Additional Shares are herein collectively
called the "Shares."
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The Company and each of the Selling Shareholders hereby confirm their
respective agreements with the Underwriters as follows:
2. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-2 (File No. 333-25871) including a
prospectus, relating to the Shares. The registration statement, as amended at
the time when it became or becomes effective, including all financial schedules
and exhibits thereto and all of the information (if any) deemed to be part of
the registration statement at the time of its effectiveness pursuant to Rule
430A under the Act ("Rule 430A"), is hereinafter referred to as the
"Registration Statement"; the prospectus in the form first provided to the
Underwriters by the Company in connection with the offering and sale of the
Shares (whether or not required to be filed pursuant to Rule 424(b) under the
Act ("Rule 424(b)")) is hereinafter referred to as the "Prospectus," except
that if any revised prospectus shall be provided to the Underwriters by the
Company for use in connection with the offering of the Shares that differs from
the Prospectus (whether or not any such revised prospectus is required to be
filed by the Company pursuant to Rule 424(b) under the Act), the term
"Prospectus" shall refer to the revised prospectus from and after the time it
is first provided to the Underwriters for such use; and each preliminary
prospectus included in the Registration Statement prior to the time it became
or becomes effective is herein referred to as a "Preliminary Prospectus."
3. AGREEMENTS TO SELL AND PURCHASE. On the basis of the representations
and warranties contained in this Agreement, and subject to the terms and
conditions hereof, (i) the Company agrees to issue and sell to the Underwriters
2,000,000 Firm Shares and the Selling Shareholders severally and not jointly
agree to sell to the Underwriters 1,500,000 Firm Shares, at a price of $_____
per Share (the "Purchase Price"); and (ii) each Underwriter agrees, severally
and not jointly, to purchase from the Company and the Selling Shareholders, at
the Purchase Price, the aggregate number of Firm Shares set forth opposite the
name of such Underwriter in Schedule II hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to the terms and conditions hereof, (i) the Company
agrees to sell to the Underwriters, at the Purchase Price, up to 525,000
Additional Shares; and (ii) the Underwriters shall have the right to purchase,
severally and not jointly, from time to time, up to an aggregate of 525,000
Additional Shares at the Purchase Price. Additional Shares may be purchased as
provided in Section 4 hereof solely for the purpose of covering over-allotments
made in connection with the offering of the Firm Shares. If any Additional
Shares are to be purchased, each Underwriter, severally and not jointly, agrees
to purchase the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as the Representatives may determine) that bears
the same proportion to the total number of Additional Shares to be purchased as
the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule II bears to the total number of Firm Shares.
The Company is advised by you that the Underwriters propose to make a
public offering of their prospective portions of the Shares as soon after the
Registration Statement and this
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Agreement become effective as in your judgment is advisable. The Company is
further advised that the Underwriters propose to offer the Shares to the public
initially at $____ per share and to certain dealers selected by you at a price
that represents a concession not in excess of $____ a share under the Public
Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession not in excess of $____ a share, to any Underwriter or to
certain other dealers. The Company is further advised that after the initial
public offering, the price to the public, the concession and the discount to
dealers may be changed.
For a period of 180 days from the date this Agreement becomes effective,
the Company will not, without the prior written consent of EVEREN Securities,
Inc. on behalf of the Underwriters (1) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock
(other than 1,356,998 shares of Common Stock issuable pursuant to the 1987,
1991 and 1994 Stock Option Plans described in the Prospectus and 183,690 shares
of Common Stock issuable under the Stock Purchase Plan described in the
Prospectus), or (2) enter into any swap or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise.
For a period of 180 days from the date this Agreement becomes effective,
the Company will not, without the prior written consent of EVEREN Securities,
Inc. on behalf of the Underwriters, file a registration statement relating to
shares of capital stock (including the Common Stock) or securities convertible
into or exercisable or exchangeable for, capital stock or warrants, options or
rights to purchase or acquire, capital stock.
For a period of 180 days from the date this Agreement becomes effective,
the Selling Shareholders will not, without the prior written consent of EVEREN
Securities, Inc. on behalf of the Underwriters (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or (2) enter into any swap or other agreement that transfers, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise; provided, however, that this clause shall not apply to the
transactions expressly contemplated hereby involving the Firm Shares or to
transfers of Common Stock to partnerships, limited liability companies, trusts
or similar entities organized for the exclusive benefit of family members of
the grantors and beneficiaries of the Selling Shareholders for financial and
estate planning purposes so long as any transferee that receives Common Stock
as a result of such transfer shall agree upon such transfer to be bound by the
terms of this paragraph and shall be capable of being so bound.
4. AGREEMENTS OF THE COMPANY AND THE SELLING SHAREHOLDERS AS TO DELIVERY
AND PAYMENT. The Company and the Selling Shareholders agree with each
Underwriter that:
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(a) Delivery to the Underwriters of and payment for the Firm Shares
shall be made at 10:00 A.M., New York City time, on the third full
business day (such time and date being referred to as the "Closing Date")
following the date of the public offering of the Firm Shares as advised
to you by the Company, at such place as you shall designate.
(b) Delivery to the Underwriters of and payment for any Additional
Shares to be purchased by the Underwriters shall be made at such place as
the Representatives shall designate, at 10:00 A.M., New York City time,
on such date or dates (individually, an "Option Closing Date" and
collectively, the "Option Closing Dates"), which may be the same as the
Closing Date but shall in no event be earlier than the Closing Date, as
shall be specified in a written notice from the Representatives to the
Company of the Underwriters' determination to purchase a number,
specified in said notice, of Additional Shares. Any such notice may be
given at any time within 30 days after the date of this Agreement.
(c) Certificates for the Shares shall be registered in such names
and issued in such denominations as you shall request in writing not
later than two business days prior to the Closing Date or the applicable
Option Closing Date, as the case may be, and shall be made available for
inspection not later than 9:30 A.M., New York City time, on the business
day next preceding the Closing Date or the applicable Option Closing
Date, as the case may be, with any transfer taxes payable upon initial
issuance or the transfer thereof duly paid by the Company and the Selling
Shareholders, as the case may be, for the respective accounts of the
Underwriters against payment of the Purchase Price therefor to the order
of the Company or the Selling Shareholders, as the case may be, by wire
transfer in federal or same day funds.
5. FURTHER AGREEMENTS OF THE COMPANY AND THE SELLING SHAREHOLDERS.
The Company covenants and agrees with each Underwriter that:
(a) it will, if the Registration Statement has not heretofore become
effective under the Act, file an amendment to the Registration Statement
or, if necessary pursuant to Rule 430A under the Act, a post-effective
amendment to the Registration Statement, as soon as practicable after the
execution and delivery of this Agreement, and will use its best efforts
to cause the Registration Statement or such post-effective amendment to
become effective at the earliest possible time; and the Company will
comply fully and in a timely manner with the applicable provisions of
Rule 424(b) and Rule 430A under the Act;
(b) it will advise you promptly and, if requested by you, confirm
such advice in writing, (i) when the Registration Statement has become
effective, if and when the Prospectus is sent for filing pursuant to Rule
424 under the Act and when any post-effective amendment to the
Registration Statement becomes effective, (ii) of the receipt of any
comments from the Commission that relate to the Registration Statement or
requests by the Commission for amendments to the Registration Statement
or amendments or supplements to the Prospectus or for additional
information, (iii) of the issuance by the Commission of
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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 or, to the best
knowledge of the Company, threat of any proceedings for such purpose by
the Commission or any state securities commission or other regulatory
authority, and (iv) of the happening of any event or information becoming
known during the period referred to in paragraph (e) below that makes any
statement of a material fact made in the Registration Statement untrue or
that requires the making of any additions to or changes in the
Registration Statement (as amended or supplemented from time to time) in
order to make the statements therein not misleading or that makes any
statement of a material fact made in the Prospectus (as amended or
supplemented from time to time) untrue or that requires the making of any
additions to or changes in the Prospectus (as amended or supplemented
from time to time) in order to make the statements therein, not
misleading; if at any time the Commission shall issue or institute
proceedings (or threaten to institute any such proceedings) to issue any
stop order suspending the effectiveness of the Registration Statement, or
any state securities commission or other regulatory authority shall issue
or institute proceedings (or threaten to institute proceedings) to issue
an order suspending the qualification or exemption of the Shares under
any state securities or Blue Sky laws, the Company shall use its best
efforts to obtain the withdrawal or lifting of such order at the earliest
possible time;
(c) it will furnish to you without charge one signed copy of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits filed therewith, and will furnish
to you and each Underwriter designated by you such number of conformed
copies of the Registration Statement as so filed and of each amendment to
it, without exhibits, as you may reasonably request;
(d) it will not file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, or
make any amendment or supplement to the Prospectus of which you shall not
previously have been advised and provided a copy a reasonable period of
time prior to the filing thereof or to which you or your counsel shall
reasonably object;
(e) promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period as a prospectus is required
by the Act to be delivered in connection with the sales by an underwriter
or a dealer (in the opinion of your counsel), it will furnish to each
Underwriter and dealer without charge as many copies of the Prospectus
(and any amendment or supplement of the Prospectus) as such Underwriter
or dealer may reasonably request for the purposes contemplated by the
Act; the Company consents to the use of the Prospectus and any amendment
or supplement thereto by any Underwriter or any dealer, both in
connection with the offering or sale of the Shares and for such period of
time thereafter as the Prospectus is required by the Act to be delivered
in connection therewith;
(f) if during the period specified in paragraph (e) any event shall
occur or information become known as a result of which in the opinion of
your counsel it becomes
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necessary to amend or supplement the Prospectus in order to make the
statements therein, in light of the circumstances existing as of the date
the Prospectus is delivered to a purchaser, not misleading, or it is
necessary to amend or supplement the Prospectus to comply with any law,
it will forthwith prepare and, subject to paragraph 5(d) above, file with
the Commission at the sole expense of the Company an appropriate
amendment or supplement to the Prospectus so that the statements of any
material facts in the Prospectus, as so amended and supplemented, will
not in light of the circumstances when it is so delivered, be misleading,
or so that the Prospectus will comply with the Act and it will furnish to
the Underwriters and to such dealers as the Underwriters shall specify,
at the sole expense of the Company, such number of copies thereof as such
Underwriters or dealers may reasonably request;
(g) prior to any public offering of the Shares, it will cooperate
with you and counsel for the Underwriters in connection with the filing
of notices of the offer and sale of the Shares by the several
Underwriters and by dealers under the state securities or Blue Sky laws
of such jurisdictions as you may request (provided, that the Company
shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to take any action which
would subject it to general consent to service of process in any
jurisdiction in which it is not now so subject);
(h) it will not acquire any capital stock of the Company prior to
the exercise in full or termination or expiration of the option to
purchase the Additional Shares nor will the Company declare or pay any
dividend or make any other distribution upon the Common Stock payable to
shareholders of record on a date prior to the exercise in full or
termination or expiration of the option to purchase the Additional
Shares, except in either case as contemplated by the Prospectus;
(i) it will make generally available to its security holders and
furnish to the Underwriters as soon as reasonably practicable a
consolidated earnings statement covering a period of at least 12 months
beginning after the "effective date" (as defined in Rule 158 under the
Act) of the Registration Statement (but in no event commencing later than
90 days after such date) that will satisfy the provisions of Section
11(a) of the Act and Rule 158 thereunder;
(j) during the period of five years after the date of this
Agreement, it will furnish to you a copy (i) as soon as practicable after
the filing thereof, of each report filed by the Company with the
Commission, any securities exchange or the National Association of
Securities Dealers, Inc. ("NASD"); (ii) as soon as practicable after the
release thereof, of each material press release in respect of the
Company; (iii) as soon as available, of each report of the Company mailed
to shareholders; and (iv) as soon as available, such other publicly
available information concerning the Company as you may reasonably
request;
(k) it will use the net proceeds received by it from the sale of the
Shares being sold by it in the manner specified in the Prospectus;
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(l) it will cause the Shares to be listed, subject to notice of
issuance or sale, on The Nasdaq National Market (the "NASDAQ"); it will
comply with all registration, filing and reporting requirements of the
Securities Exchange Act of 1934, as amended, (the "Exchange Act") and the
NASDAQ; and
(m) it will use its best efforts to do and perform all things
required to be done and performed under this Agreement by it prior to or
after the Closing Date or any Option Closing Date, as the case may be,
and to satisfy all conditions precedent to the delivery of the Shares.
Each Selling Shareholder covenants and agrees with each Underwriter
that:
(a) it will advise you promptly and, if requested by you, confirm
such advice in writing, of the happening of any event or information
becoming known during the period referred to in paragraph (e) above that
makes any statement of a material fact made in the Registration Statement
with respect to its ownership of Shares untrue or that requires the
making of any additions to or changes in the Registration Statement (as
amended or supplemented from time to time) with respect to its ownership
of Shares in order to make the statements therein with respect to its
ownership of Shares not misleading or that makes any statement of a
material fact made in the Prospectus (as amended or supplemented from
time to time) untrue or that requires the making of any additions to or
changes in the Prospectus (as amended or supplemented from time to time)
in order to make the statements therein with respect to its ownership of
Shares, not misleading;
(b) it will cooperate with you and counsel for the Underwriters in
connection with the filing of notices for offer and sale of the Shares by
the several Underwriters and by dealers under the state securities or
Blue Sky laws of such jurisdictions as you may request; and
(c) it will use its best efforts to do and perform all things
required to be done and performed under this Agreement by it prior to or
after the Closing Date or any Option Closing Date, as the case may be,
and to satisfy all conditions precedent to the delivery of the Shares.
6. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each Underwriter as of
the date hereof, the Closing Date and each Option Closing Date that:
(i) the Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus relating to the
proposed offering of the Shares nor instituted or threatened any
proceedings for that purpose. The Registration Statement, on the
date it became or becomes effective, each Preliminary Prospectus,
on the date of the filing thereof with the Commission, and the
Prospectus and any amendment or supplement thereto, on the date of
filing thereof with the
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Commission (or if not filed, on the date provided by the Company to
the Underwriters in connection with the offering and sale of the
Shares) and at the Closing Date and each Option Closing Date
conformed or will conform with the requirements of the Act and the
rules and regulations promulgated thereunder ("Rules and
Regulations"); the Registration Statement, on the date it became or
becomes effective, did not or will not contain an untrue statement
of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; each Preliminary Prospectus, on the date of the filing
thereof with the Commission, and the Prospectus and any amendment
or supplement thereto, on the date of filing thereof with the
Commission (or if not filed, on the date provided by the Company to
the Underwriters in connection with the offering and sale of the
Shares) and at the Closing Date and each Option Closing Date did
not and will not include an untrue statement of material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; the
foregoing shall not apply to statements in or omissions from the
Registration Statement and the Prospectus made or omitted in
reliance upon, and in conformity with, information relating to the
Underwriters furnished in writing to the Company by or on behalf of
the Underwriters with your consent expressly for use therein; the
Company and the Selling Shareholders hereby acknowledge for all
purposes under this Agreement that (A) the statements set forth
under the caption "Underwriting" in the Prospectus, (B) the
stabilization legend on the gate-fold of the Prospectus and (C)
footnotes 1 and 4 and the last paragraph of text on the cover page
of the Prospectus constitute the only written information furnished
to the Company by or on behalf of the Underwriters for use in the
preparation of the Registration Statement or the Prospectus or any
amendment or supplement thereto;
(ii) the Company's subsidiaries are Selfix, Inc., a Delaware
corporation ("Selfix"), Shutters, Inc., an Illinois corporation
("Shutters"), Tamor Corporation, a Massachusetts corporation
("Tamor"), Selfix (Housewares) Ltd., a corporation organized under
the laws of the United Kingdom, Selfix of Canada, Ltd., a
corporation organized under the laws of Canada, Selfix
International, Ltd. (V.I.), a corporation organized under the laws
of the U.S. Virgin Islands, and Selfix Europe, L.L.C., an Illinois
limited liability company, (such subsidiaries being collectively
referred to herein as the "Subsidiaries" and individually a
"Subsidiary"); each of the Company and its Subsidiaries has been
duly incorporated and is a validly existing corporation in good
standing under the laws of the jurisdiction of its incorporation,
with full corporate power and authority to own or lease its
respective properties and assets and to conduct its respective
business as described in the Registration Statement and the
Prospectus and is duly qualified to do business in each
jurisdiction in which it owns or leases real property or in which
the conduct of its respective business or the ownership or leasing
of property requires such qualification, except where the failure
to be so qualified, either individually or in the aggregate, would
not have a material adverse effect on the condition (financial or
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otherwise), business, assets, prospects, net worth or results of
operations of the Company and its Subsidiaries taken as a whole (a
"Material Adverse Effect");
(iii) the capitalization of the Company is, and upon
consummation of the transactions contemplated hereby and by the
Prospectus will be, as set forth in the Registration Statement and
the Prospectus under the caption "Capitalization;" all of the
outstanding shares of capital stock of the Company have been duly
authorized and are validly issued, are fully paid and
non-assessable and conform to the description thereof in the
Registration Statement and the Prospectus and were not issued in
violation of any preemptive rights or other rights to subscribe for
or purchase securities; and, except as set forth in the
Registration Statement and the Prospectus with respect to the
Company's 1987, 1991 and 1994 Stock Option Plans and the Warrant
dated February 27, 1997 (the "Warrant") issued by the Company in
favor of General Electric Credit Corporation, no options, warrants
or other rights to purchase from the Company, agreements or other
obligations of the Company to issue or other rights to convert any
obligation into, or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding; the
description of the Company's 1987, 1991 and 1994 Stock Option Plans
and the Warrant, and the other options or rights granted and
exercised thereunder, as set forth in the Registration Statement
and the Prospectus, accurately presents the information required to
be shown under the Act with respect to such options and rights; and
all of the issued shares of capital stock of each Subsidiary have
been duly and validly authorized and issued and are fully paid and
non-assessable and are owned directly by the Company, free and
clear of all liens, encumbrances, security interests, equities or
claims (except as set forth in the Prospectus and the Registration
Statement);
(iv) subsequent to the respective dates as of which
information is given in the Registration Statement and Prospectus,
and except as described therein, (A) neither the Company nor any
Subsidiary has incurred any material liabilities or obligations,
direct or contingent, or entered into any material transactions not
in the ordinary course of business, (B) the Company has not
purchased any of its outstanding capital stock or declared, paid or
otherwise made any dividend or distribution of any kind on its
capital stock or otherwise, (C) there has not been any material
adverse change in the Company's or any Subsidiary's condition
(financial or otherwise), business, affairs, prospects or results
of operations and (D) there has not been any material change in the
capital stock or the long-term debt of the Company or any
Subsidiary;
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(v) the Shares to be sold by the Company pursuant to this
Agreement have been duly and validly authorized and, when issued,
delivered and paid for pursuant to this Agreement, will be validly
issued, fully paid and nonassessable, and will conform to the
description thereof contained in the Prospectus; the Firm Shares to
be sold by the Selling Shareholders pursuant to this Agreement have
been duly and validly authorized and were validly issued,
fully-paid and non-assessable and conform to the description
thereof contained in the Prospectus;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding
agreement of the Company enforceable in accordance with its terms,
except as enforceability of the same may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general equity
principles;
(vii) neither the Company nor any Subsidiary (i) is in
violation of its charter or by-laws, (ii) is in default in (nor has
any event occurred that with notice or lapse of time, or both,
would be a breach of or a default in) the performance of any
obligation, agreement or condition contained in any agreement,
lease, contract, permit, license, franchise agreement, mortgage,
loan agreement, debenture, note, deed of trust, bond, indenture or
other evidence of indebtedness or any other instrument or
obligation (collectively, "Obligations and Instruments") to which
it or any of its respective properties or assets is bound or
affected (except for such contravention or default as would not
have a Material Adverse Effect), (iii) is in violation of any
statute, judgment, decree, order, rule or regulation (collectively,
"Laws") applicable to it or any of its respective properties or
assets that, alone, or together with other violations of Laws would
result in a Material Adverse Effect except as set forth in the
Registration Statement and the Prospectus, and (iv) is charged with
or, to the Company's knowledge after due inquiry, under
investigation with respect to, any material violation of any such
Laws;
(viii) the execution, delivery and performance of this
Agreement and delivery of the Shares by the Company and compliance
by the Company with all the provisions hereof and the consummation
of the transactions contemplated hereby and as described in the
Prospectus under the caption "Use of Proceeds" will not, alone or
upon notice or the passage of time or both (A) require any consent,
approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body or third
party (except such as may be required under the Act and the
securities or Blue Sky laws of the various states or by the NASD),
(B) result in the creation or imposition of any lien, charge or
encumbrance upon any of the properties or assets of the Company or
any Subsidiary pursuant to the terms and provisions of any
Obligation or Instrument (except for such creation or imposition as
would not have a Material Adverse Effect), (C) conflict with or
constitute a breach or default under any Obligation or Instrument
to which the Company or any Subsidiary is a party or by which any
of their properties or assets is
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bound, (except for such conflict, breach or default as would not
have a Material Adverse Effect), or (D) assuming compliance with
the Act and all applicable state securities or Blue Sky laws,
violate or conflict with any Laws applicable to the Company or any
of its properties or assets (except for such violation or conflict
as would not have a Material Adverse Effect);
(ix) except as set forth in the Prospectus, there is no
action, suit, proceeding, inquiry or investigation, governmental or
otherwise before any court, arbitrator or governmental agency or
body (collectively, "Proceedings") pending to which the Company or
any Subsidiary is a party or to which any of its respective
properties or assets are subject, that, if determined adversely,
could reasonably be expected to result in a Material Adverse
Effect, or that could reasonably be expected to materially and
adversely affect the properties or assets thereof, or that seeks to
restrain, enjoin, prevent the consummation of or otherwise
challenge the issuance or sale of any of the Shares to be sold
hereunder or the consummation of the transactions described in the
Prospectus under the caption "Use of Proceeds", and, to the best
knowledge of the Company after due inquiry, no such Proceedings are
threatened or contemplated; no action has been taken with respect
to the Company, and, to the best knowledge of the Company, no
statute, rule or regulation or order has been enacted, adopted or
issued by any governmental agency that suspends the effectiveness
of the Registration Statement, prevents or suspends the use of any
Preliminary Prospectus or the Prospectus or suspends the sale of
the Shares in any jurisdiction referred to in Section 5(g) hereof;
no injunction, restraining order or order of any nature by a
federal or state court of competent jurisdiction has been issued
with respect to the Company that might prevent the issuance of the
Shares, could reasonably be expected to in any manner invalidate
this Agreement, suspend the effectiveness of the Registration
Statement, prevent or suspend the use of any Preliminary Prospectus
or the Prospectus or suspend the sale of the Shares in any
jurisdiction referred to in Section 5(g) hereof; and every request
of the Commission, or any securities authority or agency of any
jurisdiction, for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) has been
complied with in all material respects;
(x) neither the Company nor any Subsidiary has violated any
foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants
("Environmental Laws") the violation of which in such case or in
the aggregate would have a Material Adverse Effect; no property
owned or leased by the Company or any Subsidiary is contaminated
with any waste or hazardous substances the presence of which would
result in a Material Adverse Effect, nor would the Company or any
Subsidiary be deemed an "owner or operator" of a "facility" or
"vessel" that owns, possesses, transports, generates, discharges or
disposes of a "hazardous substance" as those terms are defined in
Section 9601 of the Comprehensive Response Compensation and
Liability Act of 1980, U.S.C. Section 9601 et seq. (except that the
Company and its Subsidiaries dispose in the ordinary course of
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its business certain materials that may be classified as or contain
"hazardous substances"; the disposal of such products (A) is in
material compliance with all applicable laws as of the date hereof
and (B) has not and will not result in a Material Adverse Effect);
(xi) neither the Company nor any Subsidiary is in violation of
any foreign, Federal, state or local law relating to discrimination
in the hiring, promotion or pay of employees nor any applicable
foreign, Federal or state wages and hours laws, nor any provisions
of the Employee Retirement Income Security Act of 1974, as amended,
or the rules and regulations promulgated thereunder (ERISA") or
similar foreign laws, the violation of which in each case or in the
aggregate would result in a Material Adverse Effect; 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 material liability; neither the Company nor any Subsidiary
has incurred and does not reasonably expect to incur material
liability under (i) Title IV of ERISA with respect to the
termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended;
(xii) each of the Company and its Subsidiaries has such
permits, licenses, franchises and authorizations of governmental or
regulatory authorities or third parties ("Permits"), including,
without limitation, under any applicable Environmental Laws, as are
necessary to own, lease and operate its respective properties and
assets and to conduct its respective businesses, except where the
failure to have any such Permit would not have a Material Adverse
Effect; each of the Company and its Subsidiaries has fulfilled and
performed all of its respective material obligations with respect
to such Permits and, to the best knowledge of the Company, no event
has occurred that allows, or after notice or lapse of time, or both
would allow, revocation or termination thereof or result in any
other material impairment of the rights of the holder of any such
Permit;
(xiii) neither the Company nor any Subsidiary is, nor intends
to conduct its business in a manner in which it would become, an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940,
as amended (the "Investment Company Act");
(xiv) except as otherwise set forth in the Prospectus, each of
the Company and its Subsidiaries has good and marketable title,
free and clear of all liens, claims, encumbrances and restrictions
(except liens for taxes not yet due and payable) to all property
and assets described in the Registration Statement as being owned
by it; all leases to which each of the Company and its Subsidiaries
is a party are subsisting, valid and binding and no default of the
Company or any Subsidiary has occurred or is continuing thereunder
that might result in a Material Adverse Effect; and each of the
Company and its Subsidiaries has possession under all such leases
to which it is
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a party as lessee with such exceptions as do not materially
interfere with the use made thereof by it;
(xv) each of the Company and its Subsidiaries maintains
insurance in such amounts and covering such risks as is adequate
for the conduct of their respective businesses and the value of
their respective properties and as is customary for companies
engaged in similar businesses in similar industries;
(xvi) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and BDO ▇▇▇▇▇▇▇,
LLP are each an independent public accounting firm with respect to
the Company and its Subsidiaries as required by the Act;
(xvii) the consolidated financial statements of the Company,
together with related notes and schedules of the Company, and the
combined financial statements of Tamor and Houseware Sales, Inc.,
together with the related notes and schedules, each included in the
Registration Statement and the Prospectus, are accurate and present
fairly the financial position, results of operations and cash flows
of the Company and its Subsidiaries and Tamor, as the case may be,
at the indicated dates and for the indicated periods; such
financial statements of have been prepared in accordance with
generally accepted accounting principles ("GAAP") consistently
applied throughout the periods involved, and all adjustments
necessary for a fair presentation of results for such periods have
been made and any unaudited financial statements have been prepared
on the basis described in the Prospectus; and the summary and
selected financial and operating data included in the Registration
Statement and the Prospectus presents fairly the information shown
therein and have been compiled on the basis described in the
Prospectus; and the pro forma information included in the
Prospectus presents fairly the information shown therein, has been
prepared in accordance with GAAP and the Commission's rules and
guidelines with respect to pro forma financial statements and other
pro forma information and has been properly compiled on the pro
forma basis described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein
are appropriate under the circumstances;
(xviii) no holder of any security of the Company has any right
to require inclusion of any such security in the Registration
Statement; there are no preemptive rights with respect to the
offering being made by the Prospectus;
(xix) except as disclosed in the Registration Statement and
the Prospectus, no labor dispute with the employees of the Company
or any Subsidiary exists, or to the best knowledge of the Company
after due inquiry, is imminent, that could result in a Material
Adverse Effect; and neither the Company nor any Subsidiary has
received notice of any existing or imminent labor disturbance by
the employees of any of its principle suppliers, customers,
manufacturers or contractors that could result in any Material
Adverse Effect;
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(xx) the Company has filed or caused to be filed, or has
properly filed extensions for, all foreign, federal, state and
local income, value added and franchise tax returns and has paid
all taxes and assessments shown thereon as due, except for such
taxes and assessments as are disclosed or adequately reserved
against and that are being contested in good faith by appropriate
proceedings, promptly instituted and diligently conducted; all
material tax liabilities are adequately provided for on the books
of the Company and its Subsidiaries, and there is no material tax
deficiency that has been or could reasonably be expected to be
asserted against the Company or any Subsidiary that is not so
provided for;
(xxi) the Company and its Subsidiaries own or possess, or can
readily acquire on reasonable terms, the patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets
and other unpatented and or unpatentable proprietary or
confidential information, systems or procedures), trademarks,
service marks and trade names (collectively, "Patents and
Proprietary Rights") currently employed by them in connection with
the businesses they now operate except where the failure to so own,
possess or acquire such Patents and Proprietary Rights would not
have a Material Adverse Effect; and neither the Company nor any
Subsidiary has received any notice and is not otherwise aware of
any infringement of or conflict with asserted rights of others with
respect to any Patent or Proprietary Rights that, if the subject of
any unfavorable decision, ruling or finding, singly or in the
aggregate, could reasonably be expected to result in a Material
Adverse Effect;
(xxii) the Company has not taken and will not take, directly
or indirectly, any action designed to or which has constituted or
that might reasonably be expected to cause or result, under the
Exchange Act or otherwise, in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of the Shares;
(xxiii) each of the Company and its Subsidiaries maintains a
system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in
accordance with management's authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements
in conformity with GAAP and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management's
authorization, and (iv) the recorded accountability for inventory
is compared with the existing inventory at reasonable intervals and
appropriate action is taken with respect to any differences;
(xxiv) there is no contract, document, agreement or
transaction to which the Company or any Subsidiary is a party, or
that involved or involves the Company or any Subsidiary or any of
its respective properties or assets that is required to be
described in or filed as an exhibit to the Registration Statement
or the Prospectus by the Act or the Rules and Regulations that have
not been so described or filed;
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(xxv) other than as contemplated in 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 or engaged in any other transactions or entered
into any other agreement or understanding which might otherwise be
considered by the NASD in determining the reasonableness of the
compensation received by the Underwriters under this Agreement;
(xxvi) the Company has been subject to the requirements of
Section 12 or 15(d) of the Exchange Act and has filed all the
material required to be filed pursuant to Sections 13, 14 or 15(d)
for a period of at least thirty-six calendar months immediately
preceding the filing of the Registration Statement with the
Commission and has filed in a timely manner all reports required to
be filed during the twelve calendar months and any portion of the
month immediately preceding the filing of the Registration
Statement and, if the Company has used Rule 12b-25(b) under the
Exchange Act with respect to a report or a portion of a report,
that report or portion thereof has actually been filed within the
time period prescribed by that rule;
(xxvii) the Company has not, since the end of its last fiscal
year for which certified financial statements of the Company were
included in a report filed pursuant to Section 13(a) or 15(d) of
the Exchange Act: (a) failed to pay any dividend or sinking fund
installment on preferred stock; or (b) defaulted (i) on any
installment or installments of indebtedness for borrowed money, or
(ii) on any rental on one or more long term leases which defaults
in the aggregate are material to the financial position of the
Company;
(xxviii) Selfix was reorganized into wholly-owned subsidiary
of the Company in compliance with the provisions of Section 251(g)
of the Delaware General Corporation Law; all actions required to be
taken and all filings required to be filed by the Company under the
Securities Act and the Exchange Act for the Company to become the
successor registrant to Selfix have been taken or made; and the
Company has registered its shares of Common Stock under the
Exchange Act on Form 8-B as successor to Selfix; and
(xxix) the Company confirms that it is in compliance with all
provisions of Section 1 of Florida Statutes, Section 517.075, An
Act Relating to Disclosure of Doing Business with Cuba; the Company
further agrees that if it or any Subsidiary commences engaging in
business with the government of Cuba or with any person or
affiliate located in Cuba after the date the Registration Statement
becomes or has become effective with the Commission or with the
Florida Department of Banking and Finance (the "Department"),
whichever date is later, or if the information reported in the
Prospectus, if any, concerning the Company's business with Cuba or
with any person or affiliate located in Cuba changes in any
material way, the
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Company will provide the Department notice of such business or
change, as appropriate, in a form acceptable to the Department.
(b) Each Selling Shareholder jointly and severally represents and
warrants to, and agrees with, the Underwriters that:
(i) the Selling Shareholder, having full legal right, power
and authority to do so, has duly executed and delivered a power of
attorney in a form satisfactory to Representatives (the "Power of
Attorney") appointing _____________ and _____________, and each of
them acting independently, as such Selling Shareholder's
attorney-in-fact (the "Attorney-in-Fact"), and has delivered to the
Attorneys-in-Fact one or more stock certificates representing the
Firm Shares being offered and sold by such Selling Stockholder to
the Underwriters pursuant to this Agreement together with a duly
executed blank stock power with respect to such Shares;
collectively, such documents are referred to herein as the "Selling
Shareholder Documents";
(ii) each Selling Shareholder Document is a legal, valid and
binding agreement of such Selling Shareholder, as the case may be,
enforceable in accordance with its respective terms, except as
enforceability of the same may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general equity
principles;
(iii) the Selling Shareholder, having full legal right, power
and authority to do so, has duly executed and delivered this
Agreement;
(iv) this Agreement has been duly authorized, executed and
delivered by such Selling Shareholder and is a legal, valid and
binding agreement of such Selling Shareholder enforceable in
accordance with its terms, except as enforceability of the same may
be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and by
general equity principles;
(v) the Selling Shareholder has good, valid and marketable
title to the Firm Shares being offered and sold by such Selling
Shareholder, free and clear of all liens, encumbrances, equities,
security interests and claims and has full right, power and
authority to sell, assign, transfer and deliver such Firm Shares
pursuant to this Agreement; when the Firm Shares being offered and
sold by such Selling Shareholder are paid for in accordance with
the terms of this Agreement, the Underwriters will have good, valid
and marketable title to such Firm Shares, free and clear of all
liens, encumbrances, security interests and claims;
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(vi) the Selling Shareholder acknowledges and agrees that the
Firm Shares represented by the certificates on deposit with the
Attorneys-in-Fact are to that extent irrevocable, and that the
obligations of the Selling Shareholder hereunder may not be
terminated, except as provided herein, by any act of the Selling
Shareholder, by operation of law or otherwise;
(vii) the execution, delivery and performance of this
Agreement by such Selling Stockholder and the sale of such Selling
Stockholder's Shares and the consummation of the transactions
contemplated by this Agreement will not conflict with or result in
a breach of such Selling Shareholder's organizational documents, or
any of the terms or provisions, or constitute a default or cause an
acceleration of any obligation under Obligation or Instrument to
which such Selling Shareholder is a party or by which such Selling
Shareholder is bound, or to which any of the property or assets of
such Selling Shareholder is subject, or any order of any court or
governmental agency or authority entered into in any proceeding to
which such Selling Shareholder was or is a party or by which such
Selling Shareholder is bound, or violate or conflict with any
applicable foreign, federal, state or local law, rule,
administrative regulation or ordinance of administrative or court
decree applicable to such Selling Shareholder or such Selling
Shareholder's property;
(viii) the Selling Shareholder 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 any security of the Company to
facilitate the sale or resale of the Shares pursuant to the
distribution contemplated by this Agreement and, other than as
permitted by the Act, the Selling Shareholder has not distributed,
nor will it distribute, any prospectus or other offering material
in connection with the offering and sale of the Shares;
(ix) neither such Selling Shareholder nor any trustee or
beneficiary of such Selling Shareholder is affiliated as a
director, officer, partner, stockholder, or otherwise with any
securities broker or dealer which is a member of the NASD or any
other organization that owns or controls any member of the NASD;
(x) there are no Proceedings pending to which the Selling
Shareholder is a party that, if determined adversely, could
reasonably be expected to restrain, enjoin, prevent the
consummation of or otherwise challenge the sale of such Selling
Shareholder's Shares to be sold hereunder;
(xi) all information furnished to the Company by or on behalf
of the Selling Shareholder for use in connection with the
preparation of the Registration Statement does not contain an
untrue statement of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and
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(xii) other than as contemplated in this Agreement, the
Selling Shareholder 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 or engaged in any other
transactions or entered into any other agreement or understanding
which might otherwise be considered by the NASD in determining the
reasonableness of the compensation received by the Underwriters
under this Agreement.
(c) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty made by the Company or the Selling
Shareholders, as the case may be, to each Underwriter as to the matters
covered thereby and shall be deemed incorporated herein in its entirety
and shall be effective as if such representation and warranty were made
herein; and any certificate signed by the Company or any Selling
Shareholder, as the case may be, as such and delivered to you or to
counsel for the Underwriters shall also be deemed a representation and
warranty made by the Company or such Selling Shareholder, as the case may
be, to each Underwriter as to the matters covered thereby and shall also
be deemed incorporated herein in its entirety and shall be effective as
if such representation and warranty were made herein.
7. INDEMNIFICATION.
(a) The Company and the Selling Shareholders, jointly and severally,
agree to indemnify and hold harmless each of the Underwriters and each
person, if any, who controls each of the Underwriters within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act (the
"indemnified parties") from and against any and all losses, claims,
damages, liabilities and judgments caused by, arising out of, related to
or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule
430A, if applicable, or the Prospectus or any Preliminary Prospectus or
caused by 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; provided, however, (a) that the Company and the
Selling Stockholders shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, 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 any Underwriter through EVEREN Securities, Inc. expressly for
use therein; and (b) that each of the Selling Stockholders' liability to
the Underwriters shall be limited to the proceeds received by such
Selling Stockholder from the sale of such Selling Stockholder's Shares as
contemplated hereunder.
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(b) In case any action shall be brought against any of the
indemnified parties, based upon any Preliminary Prospectus, the
Registration Statement or the Prospectus or any amendment or supplement
thereto and with respect to which indemnity may be sought against the
Company and the Selling Shareholders, such indemnified parties shall
promptly notify the Company (and the Selling Shareholders, care of the
Company) in writing (but the failure so to notify shall not relieve the
Company or the Selling Shareholders of any liability that they may
otherwise have to such indemnified parties under this Section 7 (although
the Company's and the Selling Shareholders' liability to an indemnified
party may be reduced on a monetary basis to the extent, but only to the
extent, they have been prejudiced by such failure on the part of such
indemnified party)) and the Company and the Selling Shareholders shall
promptly assume the defense thereof, including the employment of counsel
satisfactory to such indemnified party and payment of all fees and
expenses. The indemnified parties shall each have the right to employ
separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified parties unless (i) the employment of such
counsel shall have been specifically authorized by the Company, (ii) the
Company and the Selling Shareholders shall have failed to assume promptly
the defense or to employ counsel reasonably satisfactory to such
indemnified party or (iii) the named parties to any such action
(including any impleaded parties) include both the indemnified parties
and the Company or the Selling Shareholders, and an indemnified party
shall have been advised by counsel that there may be one or more legal
defenses available to one or more of the indemnified parties that are
different from or additional to those available to the Company or the
Selling Shareholders (in which case the Company and the Selling
Shareholders shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however,
that the Company and the Selling Shareholders shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (in addition to any local counsel)
for the indemnified parties, which firm shall be designated in writing by
EVEREN Securities, Inc., and that all such fees and expenses shall be
reimbursed promptly as they are incurred). The Company and the Selling
Shareholders shall not be liable for any settlement of any such action
effected without their written consent, which consent shall not be
unreasonably withheld, but if settled with the written consent of the
Company and the Selling Shareholders, the Company and the Selling
Shareholders agree to indemnify and hold harmless the indemnified parties
from and against any and all loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by
the second sentence of this paragraph, the indemnifying party agrees that
it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 10
business days after delivery by registered or certified mail to the
proper address for notice to such indemnifying party of the aforesaid
request (whether or not such delivery is accepted) and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party
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shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional and complete release in writing of
such indemnified party from any and all liability on claims that are the
subject matter of such proceeding, which such settlement shall be in form
and substance satisfactory to the indemnified party. The indemnification
provided in this Section 7 will be in addition to any liability which the
Company and the Selling Shareholders may otherwise have.
(c) The Underwriters agree, severally and not jointly, to indemnify
and hold harmless the Selling Shareholders, the Company, its directors,
its officers who sign the Registration Statement and any person
controlling the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Company and the Selling Shareholders to the
Underwriters but only with reference to information stated in or omitted
from the Registration Statement, the Prospectus or any Preliminary
Prospectus in reliance upon, and in conformity with, information relating
to the Underwriters furnished in writing to the Company by or on behalf
of the Underwriters with your consent expressly for use therein. In case
any action shall be brought against the Company, any of the Selling
Shareholders, any of the Company's directors, any such officers or any
person controlling the Company based on the Registration Statement, the
Prospectus or any Preliminary Prospectus and in respect of which
indemnity may be sought against the Underwriters, the Underwriters shall
have the rights and duties given to the Company and the Selling
Shareholders by Section 7(b) hereof (except that if the Company and the
Selling Shareholders 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 expense of such Underwriter),
and the Selling Shareholders, the Company, its directors, any such
officers and any person controlling the Company shall have the rights and
duties given to the "indemnified parties" by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is for any
reason unavailable to an indemnified party or insufficient to hold such
indemnified party harmless in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each 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 and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by
the Company and the Selling Shareholders on the one hand and the
Underwriters on the other from the offering of the Shares or (ii) if the
allocation provided in 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 Shareholders on the one hand and the
Underwriters on the other in connection with the statements or omissions
or alleged statements or omissions that resulted in such losses, claims,
damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company
and the Selling Shareholders on the one hand and the
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Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering and sale of the Shares (before
deducting expenses) received by the Company and the Selling Shareholders
on the one hand, and the total underwriting discounts and commissions
received by the Underwriters on the other, bears to the total price to
the public of the Shares, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company, the
Selling Shareholders and the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or the alleged omission to
state a material fact relates to information supplied by the Company, the
Selling Shareholders or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Selling Shareholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 7(d) were determined by pro rata allocation (even if the
Underwriters or the Selling Shareholders 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 the immediately
preceding paragraph. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph 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 or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligation in this Section 7(d) to contribute are several
in proportion to the respective amount of Shares purchased hereunder by
each Underwriter and not joint.
8. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the several Underwriters to purchase and pay for the Firm Shares on the Closing
Date and the Additional Shares on any Option Closing Date are subject to the
fulfillment of each of the following conditions on or prior to the Closing Date
and each Option Closing Date:
(a) All the representations and warranties of the Company and the
Selling Shareholders contained in this Agreement and in any certificate
delivered hereunder shall be true and correct on the Closing Date and
each Option Closing Date with the same force and effect as if made on and
as of the Closing Date or Option Closing Date, as applicable. The
Company and the Selling Shareholders shall not have failed at or prior to
the Closing Date or Option Closing Date, as applicable, to perform or
comply in all respects with any of the agreements herein contained and
required to be performed or complied with by the Company at or prior to
the Closing Date.
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(b) If the Registration Statement is not effective at the time of
the execution and delivery of this Agreement, the Registration Statement
shall have become effective (or, if a post-effective amendment is
required to be filed pursuant to Rule 430A under the Act, such
post-effective amendment shall have become effective) not later than 9:30
A.M., New York City time, on the date of this Agreement or such later
time as you may approve in writing or, if the Registration Statement has
been declared effective prior to the execution and delivery hereof in
reliance on Rule 430A, the Prospectus shall have been filed as required
hereby, if necessary; and at the Closing Date and each applicable Option
Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been commenced or shall be pending before or, to the
best knowledge of the Underwriters, the Company or the Selling
Shareholders, threatened by the Commission; every request for additional
information on the part of the Commission shall have been complied with
to the Underwriters' satisfaction;
(c) The legality and sufficiency of the authorization, issuance and
sale or transfer and sale of the Shares hereunder, the validity and form
of the certificates representing the Shares, the execution and delivery
of this Agreement and all corporate proceedings and other legal matters
incident thereto, and the form of the Registration Statement and the
Prospectus (except financial statements) shall have been approved by
counsel for the Underwriters exercising reasonable judgment, and no
Underwriter shall have advised the Company, based on information received
after the date hereof, that the Registration Statement or the Prospectus,
or any amendment or supplement thereto, contains an untrue statement of
material fact, or omits to state a fact that in your opinion is material
and is required to be stated therein or is necessary to make the
statements therein not misleading.
(d) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred any material change, or any material
development involving a prospective change, in or affecting particularly
the business or properties of the Company and its Subsidiaries that, in
the judgment of the Representatives, makes it impractical or inadvisable
to proceed with the public offering or purchase of the Shares as
contemplated hereby.
(f) You shall have received an agreement from all of the executive
officers and directors of the Company (collectively, the "Additional
Shareholders"), whereby each such officer or director agrees to be bound
by an agreement to the same effect as the covenants set forth in the last
paragraph of Section 3 of this Agreement (the "Lock-Up Agreements").
(g) You shall have received an opinion (satisfactory to you and your
counsel) dated the Closing Date or the Option Closing Date, as the case
may be, of Much Shelist ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, P.C., counsel
for the Company and the Selling Shareholders, to the effect that:
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(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under laws of the State
of Delaware with corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
and the Company has been duly qualified to do business as a foreign
corporation under the corporation law of, and is in good standing
as such in, every jurisdiction where the ownership or leasing of
property, or the conduct of its business requires such
qualification except where the failure so to qualify would not have
a Material Adverse Effect;
(ii) each Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under laws of the
jurisdiction of its incorporation with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus; and each Subsidiary has been duly
qualified to do business as a foreign corporation under the
corporation law of, and is in good standing as such in, every
jurisdiction where the ownership or leasing of property, or the
conduct of its business requires such qualification except where
the failure so to qualify would not have a Material Adverse Effect;
(iii) the Company has all necessary corporate power and
authority to enter into and perform this Agreement, and the
performance of the Company's obligations hereunder has been duly
authorized by all necessary corporate action; this Agreement has
been duly executed and delivered by and on behalf of the Company,
and, assuming due authorization, execution and delivery of this
Agreement by the Underwriters, constitutes a legal, valid and
binding agreement of the Company enforceable in accordance with its
terms, except as enforceability of the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and by general equity
principles; no approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body or, to the best of such
counsel's knowledge, after due inquiry, third party, is necessary
in connection with the execution and delivery of this Agreement and
the consummation of the transactions contemplated herein or as
contemplated by the Prospectus (other than as may be required by
the NASD or as required by state securities or Blue Sky laws, as to
which such counsel need express no opinion) except such as have
been obtained or made, with counsel specifying the same;
(iv) all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized, validly issued and is fully
paid and nonassessable, and, except as disclosed in the
Registration Statement, the Company owns directly or indirectly all
of the outstanding capital stock of each Subsidiary; all of the
issued shares of each Subsidiary have been duly and validly
authorized and issued, and except as set forth in the Registration
Statement, such shares are owned free and clear of any claims,
liens, encumbrances, equities or security interests;
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(v) the Company has an authorized capitalization as set forth
in the Prospectus (except for subsequent issuances, if any,
pursuant to stock options or other rights referred to in the
Prospectus), and all of the issued shares of capital stock of the
Company conform as to legal matters to the description thereof in
the Registration Statement and Prospectus; to the best of such
counsel's knowledge, no options, warrants or other rights to
convert any obligation into, or exchange any securities for, shares
of capital stock or ownership interests in the Company are
outstanding;
(vi) the issued and outstanding capital stock of the Company
has been duly authorized and validly issued and is fully paid and
nonassessable;
(vii) to the best of such counsel's knowledge, after due
inquiry, neither the filing of the Registration Statement or any
amendment thereto nor the offer and sale of the Shares to the
Underwriters as contemplated by this Agreement gives rise to any
rights, nor do any rights exist, for or relating to the
registration under the Act of any securities of the Company;
(viii) the Registration Statement has become effective under
the Act, the Prospectus has been filed as required by this
Agreement, if necessary, and to the best of such counsel's
knowledge, after telephonic inquiry of the Commission, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are pending or
have been initiated or threatened by the Commission; and the
Registration Statement (including the information deemed to be part
of the Registration Statement at the time of effectiveness pursuant
to Rule 430A, if applicable), the Prospectus and each amendment or
supplement thereto (except for the financial statements and other
statistical or financial data included therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the Rules and
Regulations;
(ix) the statements made in the Registration Statement under
the captions "Capitalization," "Description of Capital Stock,"
"Business-Tamor Acquisition," "Business-Legal Proceedings,"
"Management-Employment Agreements," "Management-Stock Option
Plans," "Management-1995 Employee Stock Purchase Plan,"
"Management-Profit Sharing Plan," "Management-Limitations on
Directors' and Officers' Liability," "Management-Anti-Takeover
Provisions," "Management-Stockholder Rights Plan," "Certain
Relationships and Related Transactions," "Shares Eligible for
Future Sale" and "Description of Credit Agreement and Other Debt"
in so far as they constitute summaries of documents referred to
therein, proceedings or matters of law or legal conclusions, have
been reviewed by such counsel and constitute fair and accurate
summaries thereof;
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(x) such counsel does not know of any Proceedings required to
be described in the Prospectus that are not described, or of any
contracts or documents of a character required to be described in
the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that were not described and
filed as required;
(xi) the certificates for the Shares to be delivered hereunder
are in due and proper form, and when duly countersigned by the
Company's transfer agent and delivered to you or upon your order
against payment of the agreed consideration therefor in accordance
with the provisions of this Agreement, the Shares sold by the
Company hereunder and represented thereby will be duly authorized
and validly issued, fully paid and non-assessable;
(xii) except as disclosed in the Prospectus, the execution and
performance of this Agreement will not result in the creation of
any lien, charge or encumbrance upon any of the properties or
assets of the Company or any Subsidiary pursuant to the terms and
provisions of, or conflict with, or contravene any of the
provisions of, or result in a default under, any agreement,
franchise, license, indenture, mortgage, deed of trust, or other
instrument known to such counsel, of the Company or any of its
Subsidiaries or by which the property of any of them is bound and
which contravention or default would have a Material Adverse
Effect; or violate any of the provisions of the charter or bylaws
of the Company or any of its Subsidiaries or, to the best of such
counsel's knowledge, violate any statute, order, rule or regulation
of any regulatory or governmental body having jurisdiction over the
Company and its Subsidiaries;
(xiii) to such counsel's knowledge, all offers and sales of
the Company's capital stock since June ____, 1994 were at all
relevant times exempt from the registration requirements of the Act
and were duly registered or the subject of an available exemption
from the registration requirements of the applicable state
securities or blue sky laws;
(xiv) neither the Company, any Subsidiary nor any Selling
Shareholder is an "investment company" subject to registration or
regulation under the Investment Company Act or a company controlled
by an "investment company" subject to such registration or
regulation;
(xv) the consummation of the transactions described in the
Prospectus under the caption "Use of Proceeds" will not result in
the creation of any lien, charge or encumbrance upon any of the
properties or assets of the Company or any Subsidiary pursuant to
the terms and provisions of, or conflict with, or contravene any of
the provisions of, or result in a default under, any agreement,
franchise, license, indenture, mortgage, deed of trust, or other
instrument known to such counsel, of the Company or any of its
Subsidiaries or by which the property of
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any of them is bound and which contravention or default would have
a Material Adverse Effect; or violate any of the provisions of the
charter or bylaws of the Company or any of its Subsidiaries or, to
the best of such counsel's knowledge, violate any statute, order,
rule or regulation of any regulatory or governmental body having
jurisdiction over the Company and its Subsidiaries;
(xvi) with respect to each Selling Shareholder, this Agreement
and the Selling Shareholder Documents have been duly authorized,
executed and delivered by or on behalf of each Selling Shareholder;
the agents for each Selling Shareholder have been authorized to
carry out all transactions contemplated herein on behalf of each
such Selling Shareholder; and the performance of this Agreement and
the transactions contemplated herein by such Selling Shareholders
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under any statute, any
indenture, mortgage, deed of trust, note, or other agreement or
instrument known to such counsel to which any of such Selling
Shareholders is a party or by which any are bound or to which any
property of such Selling Shareholders is a party or by which any of
the property of such Selling Shareholders is subject, or any order,
rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over any of such
Selling Shareholders or any of their properties; and no consent,
approval authorization or order of any court or governmental agency
or body is required for the consummation of the transactions
contemplated by this Agreement in connection with the sale of
Shares to be sold by the Selling Shareholders, except as such as
have been obtained under the 1933 Act and such as may be required
under applicable blue sky laws in connection with the purchase and
distribution of such Shares by the Underwriters and the clearance
of such offering with the NASD;
(xvii) each Selling Shareholder has the full right, power and
authority to enter into this Agreement and to sell, transfer and
deliver the Shares to be sold on the Closing Date by such Selling
Shareholder hereunder and good and marketable title to such Shares
so sold, free and clear of all voting trust arrangements, liens,
encumbrances, equities, claims and community property rights
whatsoever, has been transferred to the Underwriters (who counsel
may assume to be bona fide purchasers) who have purchased such
Shares hereunder;
(xviii) each Lock-Up Agreement is a legal, valid and binding
agreement of each Additional Shareholder enforceable in accordance
with its terms, except as enforceability of the same may be limited
by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and by general
equity principles; and
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(xix) all actions required to be taken and all filings
required to be filed by the Company under the Securities Act and
the Exchange Act for the Company to become the successor registrant
to Selfix have been taken or made.
In addition, such counsel shall state that they have participated
in conferences with officers and other representatives of the
Company, representatives of the independent public accountants of
the Company and representatives of the Underwriters and their
counsel, at which the contents of the Registration Statement and
the Prospectus and related matters were discussed and, on the basis
of the foregoing (relying as to materiality upon the statements of
officers and other representatives of the Company), no facts have
come to such counsel's attention that lead such counsel to believe
that either the Registration Statement or any amendment (including
any post-effective amendment) thereto at the time such Registration
Statement or amendment became effective, and as of the Closing Date
and any applicable Option Closing Date, 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 the Prospectus or
any amendment or supplement thereto as of their respective dates
and as of the Closing Date and any applicable Option Closing Date
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, in light of
the circumstances under which they were made, not misleading,
except that such counsel need express no opinion with respect to
the financial statements, schedules and other financial data
included in the Registration Statement or the Prospectus.
(h) You shall have received an opinion of Ungaretti & ▇▇▇▇▇▇,
counsel for the Underwriters, dated the Closing Date or the Option
Closing Date, as the case may be, in form and substance reasonably
satisfactory to you.
(i) You shall have received, in connection with the execution of
this Agreement and on the Closing Date and each Option Closing Date, a
"cold comfort" letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and
BDO ▇▇▇▇▇▇▇, LLP, dated as of each such date in form and substance
satisfactory to you with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus.
(j) You shall have received from the Company a certificate, signed
by ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ in their capacities as Chief Executive
Officer and Chief Financial Officer of the Company, respectively,
addressed to the Underwriters and dated the Closing Date or Option
Closing Date, as applicable, to the effect that:
(i) such officer has carefully examined the Registration
Statement and the Prospectus and all amendments or supplements
thereto and, in such officer's opinion, such Registration Statement
or such amendment as of its effective date and as of the Closing
Date, and the Prospectus or such supplement as of its date and as
of the Closing Date, did not contain an untrue statement of
material fact or omit to
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state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading and, in such
officer's opinion, since the effective date of the Registration
Statement, no event has occurred or information become known that
should have been set forth in an amendment to the Registration
Statement or a supplement to the Prospectus which has not been so
set forth in such amendment or supplement;
(ii) the representations and warranties of the Company set
forth in Section 6(a) of this Agreement are true and correct as of
the date of this Agreement and as of the Closing Date or the Option
Closing Date, as the case may be, and the Company has complied with
all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to such Closing Date; and
(iii) the Commission has not issued an order preventing or
suspending the use of the Prospectus or any preliminary prospectus
filed as a part of the Registration Statement or any amendment
thereto; no stop order suspending the effectiveness of the
Registration Statement has been issued; and, to the best knowledge
of the respective signers, no proceedings for that purpose have
been instituted or are pending or contemplated under the Act.
The delivery of the certificate provided for in this subparagraph
shall be and constitute a representation and warranty of the Company as
to the facts required in the immediately foregoing clauses (ii) and (iii)
of this subparagraph to be set forth in said certificate.
(k) You shall have received from each Selling Shareholder a
certificate, signed by such Selling Shareholder, addressed to the
Underwriters and dated the Closing Date or Option Closing Date, as
applicable, to the effect that:
(i) the Selling Shareholder has carefully examined the
Registration Statement and the Prospectus and all amendments or
supplements thereto and, in such Selling Shareholder's opinion,
such Registration Statement or such amendment as of its effective
date and as of the Closing Date, and the Prospectus or such
supplement as of its date and as of the Closing Date, did not
contain an untrue statement of material fact or omit to state a
material fact with respect to such Selling Shareholder's ownership
of the Shares required to be stated therein or necessary in order
to make such statements therein not misleading; and
(ii) the representations and warranties of the Selling
Shareholder set forth in Section 6(b) of this Agreement are true
and correct as of the date of this Agreement and as of the Closing
Date or the Option Closing Date, as the case may be, and the
Selling Shareholder has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to such Closing Date.
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(l) You and Ungaretti & ▇▇▇▇▇▇, counsel for the Underwriters, shall
have received on or before the Closing Date or the Option Closing Date,
as the case may be, such further documents, opinions, certificates and
schedules or instruments relating to the business, corporate, legal and
financial affairs of the Company and the Selling Shareholders as you and
they shall have reasonably requested from the Company.
9. EFFECTIVE DATE OF AGREEMENT, TERMINATION AND DEFAULTS. This Agreement
shall become effective upon, and shall not be deemed delivered until, the later
of (i) execution of this Agreement and (ii) when notification of the
effectiveness of the Registration Statement has been released by the
Commission.
This Agreement may be terminated at any time prior to the Closing Date and
any exercise of the option to purchase Additional Shares may be canceled at any
time prior to any Option Closing Date by the Underwriters by written notice to
the Company 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 development involving a prospective
material adverse change in the condition, financial or otherwise, of the
Company or the earnings, affairs, management, or business of the Company,
whether or not arising in the ordinary course of business, that would, in the
Representatives' sole judgment, make it impracticable to market the Shares on
the terms and in the manner contemplated in the Prospectus, (ii) any outbreak
or escalation of hostilities or other national or international calamity or
crisis or change in economic conditions or in the financial markets of the
United States that, in the Representatives' judgment, is material and adverse
and would, in the Representatives' judgment, make it impracticable to market
the Shares on the terms and in the manner contemplated in the Prospectus, (iii)
the suspension or material limitation of trading in securities on the NASDAQ or
limitation on prices for securities on the NASDAQ, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, Rule or order of any court or other governmental authority that in
the Representatives' opinion materially and adversely affects, or will
materially and adversely affect, the business or operations of the Company, (v)
the declaration of a banking moratorium by either federal or California, New
York or Illinois state authorities, (vi) the taking of any action by any
Federal, state or local government or agency in respect of its monetary or
fiscal affairs that in the Representatives' opinion has a material adverse
effect on the financial markets in the United States or (vii) there shall be
any change in financial markets or in political, economic or financial
conditions which, in the opinion of the Representatives, either renders it
impracticable or inadvisable to proceed with the offering and sale of the
Shares on the terms set forth in the Prospectus or materially adversely affects
the market for the Shares.
If on the Closing Date or on any Option Closing Date, as the case may be,
any of the Underwriters shall fail or refuse to purchase the Firm Shares or
Additional Shares, as the case may be, which it has agreed to purchase
hereunder on such date, and the aggregate number of Firm Shares or Additional
Shares, as the case may be, that such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase does not exceed, in the aggregate, 10%
of the total number of Shares that all Underwriters are obligated to purchase
on such date, each non-defaulting Underwriter shall be obligated, in the
proportion which the number of Firm Shares set forth opposite its name in
Schedule II hereto bears to the total number of Firm Shares or Additional
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Shares, as the case may be, that all the non-defaulting Underwriters have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, that such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date. If, on the Closing Date or on the Option Closing Date, as the case may
be, any of the Underwriters shall fail or refuse to purchase the Firm Shares or
Additional Shares, as the case may be, in an amount that exceeds, in the
aggregate, 10% of the total number of the Shares, and arrangements satisfactory
to you and the Company for the purchase of such Shares are not made within 48
hours after such default, this Agreement shall terminate without liability on
the part of the non-defaulting Underwriters, the Company and the Selling
Shareholders, except as otherwise provided in this Section 9. In any such case
that does not result in termination of this Agreement, either you or the
Company may postpone the Closing Date or the Option Closing Date, as the case
may be, for not longer than seven (7) 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 a defaulting Underwriter from liability in respect of any default
of any such Underwriter under this Agreement.
The indemnity and contribution provisions and other agreements,
representations and warranties of the Company, the Selling Shareholders and the
Company's officers and directors set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will survive
delivery of and payment for the Shares, regardless of (i) any investigation, or
statement as to the results thereof, made by or on behalf of any of the
Underwriters or by or on behalf of the Company or any Selling Shareholder or
the officers or directors of the Company or any controlling person of the
Company, (ii) acceptance of the Shares and payment therefor hereunder or (iii)
termination of this Agreement.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of, and shall be binding upon, the Company, the Selling
Shareholders, the Underwriters, any indemnified person referred to herein and
their respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The terms "successors and assigns" shall not include
a purchaser of any of the Shares from any of the several Underwriters merely
because of such purchase.
10. COSTS AND EXPENSES. Whether or not the transactions contemplated
hereby are consummated or this Agreement becomes effective or is terminated,
the Company shall pay all costs, fees, expenses and taxes incident to the
performance by the Company of its obligations hereunder, including (i) the
preparation, printing, filing and distribution under the Act of the
Registration Statement (including financial statements and exhibits), each
preliminary Prospectus and all amendments and supplements to any of them prior
to or during the period specified in paragraph (e) above of Section 5, (ii) the
word processing, reproduction and distribution of this Agreement and the
Selected Dealer Agreement and any supplements or amendments thereto in
connection with the offering of the Shares (including in each case any
disbursements of counsel for the Underwriters relating to such preparation and
delivery but not including any legal fees of counsel to the Underwriters),
(iii) the filing of notices for the offer and sale of the Shares under the
securities or Blue Sky laws of the several states, including in each case the
disbursements of counsel for the Underwriters but not including legal fees of
counsel to the Underwriters, relating to
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filings, (iv) filings and clearance with the NASD in connection with the
offering and sale of the Shares, (v) the listing of the Shares on the NASDAQ
National Market ("NASDAQ"), (vi) furnishing such copies of the Registration
Statement, each Preliminary Prospectus, the Prospectus and all amendments and
supplements thereto as may be requested for use in connection with the offering
or sale of the Shares by the Underwriters or by dealers to whom the Shares may
be sold, (vii) obtaining the opinion to be provided pursuant to Sections 8(g)
of this Agreement and (viii) the performance by the Company of all of its other
obligations under this Agreement. If the sale of the Shares provided for
herein is not consummated because the Underwriters exercise their right to
terminate this Agreement pursuant to Section 9 hereof and any of the following
have occurred during the term of this Agreement: (a) there has been any
material adverse change in the condition (financial or otherwise), earnings,
affairs, business or prospects of the Company, or (b) the Company or any of the
Selling Shareholders shall refuse or be unable to comply with any provision
hereof (except as the result of a breach of this Agreement by the
Underwriters), the Company will promptly reimburse the Underwriters upon demand
for all reasonable out-of-pocket expenses (including the fees and disbursements
of counsel for the Underwriters) that shall have been incurred by the
Underwriters in connection with the proposed purchase and sale of Shares. The
Selling Shareholders shall reimburse the Company for (i) all expenses and taxes
incident to the sale and delivery of the Firm Shares being offered and sold by
the Selling Shareholders to the Underwriters, (ii) any additional filing fees
and other expenses of notice filings under Blue Sky Laws, the Commission's
registration fee and the NASD's fee for the inclusion of the Firm Shares of the
Selling Shareholder and (iii) any other expenses which the Selling Shareholder
has agreed to pay or reimburse the Company.
11. EFFECTIVENESS OF REGISTRATION STATEMENT. You, the Company and the
Selling Shareholders will use your, its and their best efforts to cause the
Registration Statement to become effective, if it has not yet become effective,
and to prevent the issuance of any stop order suspending the effectiveness of
the Registration Statement and, if such stop order be issued, to obtain as soon
as possible the lifting thereof.
12. MISCELLANEOUS. All communications hereunder will be in writing and,
if sent to the Underwriters will be mailed, delivered or telegraphed and
confirmed to you c/o EVEREN Securities, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Syndicate Department, with a copy to Ungaretti
& ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.; if sent to the Company will be mailed, delivered or
telegraphed and confirmed to the Company at its corporate headquarters with a
copy to Much Shelist ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ P.C., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; and
if sent to the Selling Shareholders will be mailed, delivered or telegraphed
care of the Company, with a copy to Much Shelist ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇▇ P.C, or in any case to such other address as the person to be
notified may have requested in writing.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF ILLINOIS WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW
THEREOF.
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This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Selling Shareholders and the several Underwriters, including
you.
Very truly yours,
HOME PRODUCTS INTERNATIONAL, INC.
a Delaware corporation
By:
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
SELLING SHAREHOLDERS:
--------------------------------------
--------------------------------------
--------------------------------------
--------------------------------------
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The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
EVEREN Securities, Inc.
Acting as Representatives of the
several Underwriters named in Schedule II.
By: EVEREN Securities, Inc.
By:
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▇▇▇▇ ▇▇▇▇▇▇
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36
SCHEDULE I
NUMBER OF
FIRM SHARES
SELLING SHAREHOLDER TO BE SOLD
------------------- -----------
TOTAL -----------
37
SCHEDULE II
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE SOLD
------------------- -----------
EVEREN Securities, Inc.
TOTAL -----------
