FORM OF UNDERWRITING AGREEMENT
_______ ___, 2000
Xxxx X. Xxxxxxx and Company, Incorporated
Xxxxxxx Bros., LP
AS REPRESENTATIVES OF THE SEVERAL UNDERWRITERS
c/o Xxxx X. Xxxxxxx and Company, Incorporated
Xxxxxxx Financial Center
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Ladies and Gentlemen:
ACT Teleconferencing, Inc., a Colorado corporation (the "Company") proposes
to sell to the several underwriters named in Schedule I hereto (the
"Underwriters"), for whom you are acting as the representatives (the
"Representatives"), an aggregate of Two Million (2,000,000) shares (the "Firm
Shares") of Common Stock, without par value, of the Company (the "Common
Stock"), all of which shares will be sold by the Company. The respective amounts
of Firm Shares to be so purchased by the several Underwriters are set forth
opposite their names in Schedule I hereto. In addition, the Company proposes,
subject to the terms and conditions stated herein, to grant to the Underwriters
an option to purchase an aggregate of up to 300,000 additional shares of Common
Stock upon the request of the Representatives solely for the purpose of covering
over allotments (the "Option Shares"). The Firm Shares and the Option Shares are
referred to herein collectively as the "Shares." The Company also proposes to
issue and sell to the Representatives, pursuant to a Representatives' Warrant
Agreement (the "Warrant Agreement"), warrants (the "Warrants") for the purchase
of an additional 200,000 shares of Common Stock.
As Representatives, you have advised the Company (i) that you are
authorized to enter into this Agreement on behalf of the Underwriters and (ii)
that the Underwriters are willing, acting severally and not jointly, to purchase
the number of Firm Shares, aggregating in total Two Million (2,000,000) shares,
set forth opposite their respective names in Schedule I hereto, plus their pro
rata portion of the Option Shares purchased if you elect to exercise the over
allotment option in whole or in part for the accounts of the Underwriters.
The Company hereby confirms the arrangements with respect to the purchase
of the Shares severally by each of the Underwriters. The Company has been
advised and hereby acknowledges that Xxxx X. Xxxxxxx and Company, Incorporated
has been duly authorized to act as the representative of the Underwriters. As
used in this Agreement, the term "Underwriter" refers to any individual member
of the underwriting syndicate and includes any party substituted for an
Underwriter under Section 9 hereof.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
A. The Company represents and warrants to, and agrees with, each of the
several Underwriters as follows:
i. A registration statement on Form S-1 (Registration No. 333-_______) with
respect to the Shares has been prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended (the "Act"), and
the rules and regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") promulgated thereunder and has
been filed with the Commission under the Act. If the Company has elected to
rely upon Rule 462(b) under the Act to increase the size of the offering
registered under the Act, the Company will prepare and file with the
Commission a registration statement with respect to such increase pursuant
to Rule 462(b). Copies of the registration statement as amended to date
have been delivered by the Company to the Representatives. Such
registration statement, including a registration statement (if any) filed
pursuant to Rule 462(b) under the Act and the information (if any) deemed
to be part thereof pursuant to Rules 430A and 434(d) under the Act, and all
prospectuses included as a part thereof, all financial statements included
in such registration statement, and all schedules and exhibits thereto, as
amended at the time when the registration statement shall become effective,
are herein referred to as the "Registration Statement," and the term
"Prospectus" as used herein shall mean the final prospectus included as a
part of the Registration Statement on file with the Commission when it
becomes effective (except that if a prospectus is filed by the Company
pursuant to Rules 424(b) and 430A under the Act, the term "Prospectus" as
used herein shall mean the prospectus so filed pursuant to Rules 424(b) and
430A (including any term sheet meeting the requirements of Rule 434 under
the Act provided by the Company for use with a prospectus subject to
completion within the meaning of Rule 434 in order to meet the requirements
of Section 10(a) of the Act)). The term "Preliminary Prospectus" as used
herein means any prospectus used prior to the Effective Date (as defined in
Section 5(A) hereof) and included as a part of the Registration Statement,
prior to the time it becomes or became effective under the Act and any
prospectus subject to completion as described in Rules 430A or 434 under
the Act. Copies of the Registration Statement, including all exhibits and
schedules thereto, any amendments thereto and all Preliminary Prospectuses
have been delivered to you.
ii. The Registration Statement has been declared effective, and at all
times subsequent thereto up to each closing date, the Registration
Statement and Prospectus and all amendments thereof and supplements
thereto, will comply in all material respects with the provisions of the
Act and the Rules and Regulations. Neither the Commission nor any state
securities division has issued any order (i) preventing or suspending the
use of any Preliminary Prospectus, (ii) issuing a stop order with respect
to the offering of the Shares or (iii) requiring the recirculation of a
Preliminary Prospectus. The Registration Statement (as amended, if the
Company shall have filed with the Commission any post effective amendments
thereto) does not and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. Each Preliminary Prospectus, at
the time of filing thereof, the Registration Statement as of the date
declared effective and at all times
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subsequent thereto up to each closing date, and the Prospectus (as amended
or supplemented, if the Company shall have filed with the Commission any
amendment thereof or supplement thereto) conformed and conforms in all
material respects to the requirements of the Act and the Rules and
Regulations and did not, does not and will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided,
however, that none of the representations and warranties in this Subsection
1(A)(ii) shall apply to statements in, or omissions from, the Registration
Statement or the Prospectus (or any amendment thereof or supplement
thereto) which are based upon and conform to information furnished to the
Company by the Underwriters, in writing specifically for use in the
preparation of the Registration Statement or the Prospectus or any such
amendment or supplement. There is no contract or other document of the
Company of a character required by the Act or the Rules and Regulations to
be described in the Registration Statement or Prospectus or to be filed as
an exhibit to the Registration Statement that has not been described or
filed as required.
iii. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Colorado, with
full corporate power and authority, to own, lease and operate its
properties and conduct its business as described in the Registration
Statement and Prospectus. The Company is duly qualified to do business as a
foreign corporation in good standing in each jurisdiction in which the
ownership or lease of its properties, or the conduct of its business,
requires such qualification and in which the failure to be qualified or in
good standing would have a material adverse effect on the condition
(financial or otherwise), results of operations, shareholders' equity,
business, property or prospects of the Company. Except as set forth in
Exhibit 21.1 to the Registration Statement, the Company has no
subsidiaries, is not affiliated with, nor owns any stock or other equity
interest of, any other company or business entity.
iv. The Company has all necessary material authorizations, licenses,
approvals, consents, permits, certificates and orders of and from all
state, federal, foreign and other governmental or regulatory authorities to
own its properties and to conduct its business as described in the
Registration Statement and Prospectus, is conducting its business in
substantial compliance with all applicable laws, rules and regulations of
the jurisdictions in which it is conducting business, and has received no
notice of nor has it knowledge of any basis for any proceeding or action
for the revocation or suspension of any such authorizations, licenses,
approvals, consents, permits, certificates or orders.
v. The Company is not in violation of or in default under (i) its Articles
of Incorporation or Bylaws, (ii) or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any bond, debenture, note or other evidence of indebtedness or
in any contract, license, indenture, bond mortgage, loan agreement, joint
venture or partnership
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agreement, lease, agreement or instrument to which the Company is a party
or by which the Company or any of its properties are bound, (iii) any law,
order, rule, regulation, writ, injunction or decree of any government,
governmental instrumentality or court, domestic or foreign, which violation
or default would have a material adverse effect on the condition (financial
or otherwise), results of operations, shareholders' equity, business,
property or prospects of the Company or the ability of the Company to
consummate the transactions contemplated hereby.
vi. The Company has full requisite power and authority to enter into this
Agreement and the Warrant Agreement. This Agreement and the Warrant
Agreement have each been duly authorized, executed and delivered by the
Company and will be a valid and binding agreement on the part of the
Company, enforceable in accordance with their respective terms, if and when
this Agreement shall have become effective in accordance with Section 8,
except as enforceability may be limited by the application of bankruptcy,
insolvency, moratorium or similar laws affecting the rights of creditors
generally and by judicial limitations on the right of specific performance
and other equitable remedies, and except as the enforceability of the
indemnification or contribution provisions hereof may be affected by
applicable federal or state securities laws. The performance of this
Agreement and the Warrant Agreement and the consummation of the
transactions herein and therein contemplated will not result in a material
breach or violation of any of the terms and provisions of or constitute a
material default under (i) any bond, debenture, note or other evidence of
indebtedness, or any contract, license, indenture, mortgage, loan
agreement, joint venture or partnership agreement, lease, agreement or
other instrument to which the Company is a party or by which the property
of the Company is bound, (ii) the Company's Articles of Incorporation or
Bylaws, or (iii) any statute or any order, rule or regulation of any court,
governmental agency or body having jurisdiction over the Company. No
consent, approval, authorization or order of any court, governmental agency
or body is required for the consummation by the Company of the transactions
on its part herein contemplated or contemplated by the Warrant Agreement,
except such as may be required under the Act or under state or other
securities laws.
vii. There are no actions, suits or proceedings pending before any court or
governmental agency, authority or body to which the Company is a party or
of which the business or property of the Company is the subject which (i)
might result in any material adverse change in the condition (financial or
otherwise), shareholders' equity, results of operations, business or
prospects of the Company, (ii) materially and adversely affect its
properties or assets, or (iii) prevent consummation of the transactions
contemplated by this Agreement. To the best of the Company's knowledge, no
such actions, suits or proceedings are threatened.
viii. The Company has the duly authorized and outstanding capitalization
set forth under the caption "Capitalization" in the Prospectus. The
outstanding shares of capital stock of the Company have been duly
authorized and validly issued, fully paid and nonassessable. The Shares and
the Warrants conform in all material
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respects to the description thereof contained in the Registration Statement
and Prospectus. The Shares to be sold by the Company hereunder and under
the Warrant Agreement have been duly authorized and, when issued and
delivered pursuant to this Agreement and the Warrant Agreement, will be
validly issued, fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus. No statutory preemptive
rights or similar rights to subscribe for or purchase shares of capital
stock of any security holders of the Company exist with respect to the
issuance and sale of the Shares or the Warrants by the Company. Except as
described in the Prospectus, the Company has no agreement with any security
holder which gives such security holder the right to require the Company to
register under the Act any securities of any nature owned or held by such
person in connection with the transactions contemplated by this Agreement.
Except as described in the Prospectus, there are no outstanding options,
warrants, agreements, contracts or other rights to purchase or acquire from
the Company any shares of its capital stock. Except as described in the
Prospectus, there are no agreements among the Company's executive officers
and directors and any other persons with respect to the voting or transfer
of the Company's capital stock or with respect to other aspects of the
Company's affairs. Upon payment for and delivery of the Shares to be sold
by the Company pursuant to this Agreement, the Underwriters will acquire
good and marketable title to such Shares, free and clear of all liens,
encumbrances or claims created by actions of the Company. Upon payment for
and delivery of the Shares to be sold by the Company pursuant to the
Warrant Agreement, the Representatives will acquire good and marketable
title to such Shares, free and clear of all liens, encumbrances or claims
created by actions of the Company. The certificates evidencing the Shares
will comply as to form with all applicable provisions of the laws of the
State of Colorado.
ix. The financial statements of the Company, together with the related
notes, included in the Registration Statement and Prospectus (the
"Financial Statements") fairly and accurately present the financial
position, the results of operations and changes in shareholders' equity and
cash flows of the Company at the dates and for the respective periods to
which such Financial Statements apply. The Financial Statements have been
prepared in accordance with generally accepted accounting principles,
consistently applied throughout the periods involved, and all adjustments
necessary for a fair presentation of results for such periods have been
made, except as otherwise stated therein; and the supporting schedules
included in the Registration Statement present fairly the information
required to be stated therein. No other financial statements or schedules
are required to be included in the Registration Statement. The summary and
selected consolidated financial data included in the Registration Statement
present fairly the information shown therein on the basis stated in the
Registration Statement and have been compiled on a basis consistent with
the financial statements presented therein.
x. Xxxxx & Young, LLP, which has expressed its opinion with respect to the
financial statements filed with the Commission as part of the Registration
5
Statement, are independent public accountants as required by the Act and
the rules and regulations thereunder.
xi. Since the respective dates as of which information is given in the
Registration Statement and Prospectus, (i) there has not been any material
adverse change, or any development, event or occurrence in the business of
the Company that, taken together with other developments, events and
occurrences with respect to such business, would have or would reasonably
be expected to have a material adverse effect on the condition (financial
or otherwise) of the Company or the management, shareholders' equity,
results of operations, business, property or prospects of the Company,
whether or not occurring in the ordinary course of business, (ii) there has
not been any transaction not in the ordinary course of business entered
into by the Company which is material to the Company, other than
transactions described or contemplated in the Registration Statement, (iii)
the Company has not incurred any material liabilities or obligations, which
are not in the ordinary course of business or which could result in a
material reduction in the future earnings of the Company, (iv) the Company
has not sustained any material loss or interference with its business or
properties from fire, flood, windstorm, accident or other calamity, whether
or not covered by insurance, (v) there has not been any change in the
capital stock of the Company (other than upon the exercise of options and
Warrants described in the Registration Statement) or any material increase
in the short-term or long-term debt (including capitalized lease
obligations) of the Company, (vi) there has not been any declaration or
payment of any dividends or any distributions of any kind with respect to
the capital stock of the Company, other than any dividends or distributions
described or contemplated in the Registration Statement, or (vii) there has
not been any issuance of warrants, options, convertible securities or other
rights to purchase or acquire capital stock of the Company.
xii. The Company has filed all necessary federal, state, local and foreign
income and franchise tax returns and paid all taxes shown as due thereon.
The Company has no knowledge of any tax deficiency which either has been or
might be asserted against it which would materially and adversely affect
the Company's business or properties.
xiii. The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorizations
and (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
xiv. The Company has good and marketable title to all of the property, real
and personal, described in the Registration Statement or Prospectus as
being owned by
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the Company, free and clear of all liens, encumbrances, equities, charges
or claims, except as do not materially interfere with the uses made and to
be made by the Company of such property or as disclosed in the Financial
Statements. The Company has valid and binding leases to the real and
personal property described in the Registration Statement or Prospectus as
being under lease to the Company, except as to those leases which are not
material to the Company or the lack of enforceability of which would not
materially interfere with the use made and to be made by the Company of
such leased property.
xv. There has been no unlawful storage, treatment or disposal of waste by
the Company at any of the facilities owned or leased thereby, except for
such violations which would not have a material adverse effect on the
condition, (financial or otherwise) or the shareholders' equity, results of
operation, business, properties or prospects of the Company. There has been
no material spill, discharge, leak, emission, ejection, escape, dumping or
release of any kind onto the properties owned or leased by the Company, or
into the environment surrounding those properties, of any toxic or
hazardous substances, as defined under any federal, state or local
regulations, laws or statutes, except for those releases either permissible
under such regulations, laws or statutes or otherwise allowable under
applicable permits or which would not have a material adverse effect on the
condition (financial or otherwise) or the shareholders' equity, results of
operation, business, properties or prospects of the Company.
xvi. Each employee benefit plan (as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) ("Employee
Benefit Plan"), and each bonus, retirement, pension, profit sharing, stock
bonus, thrift, stock option, stock purchase, incentive, severance, deferred
or other compensation or welfare benefit plan, program, agreement or
arrangement of, or applicable to employees or former employees of, the
Company or with respect to which the Company could have any liability
("Benefit Plans"), was or has been established, maintained and operated in
all material respects in compliance with all applicable federal, state, and
local statutes, orders, governmental rules and regulations, including, but
not limited to, ERISA and the Internal Revenue Code of 1986, as amended
(the "Code"). No Benefit Plan is or was subject to Title IV of ERISA or
Section 302 of ERISA or Section 412 of the Code. The Company does not,
either directly or indirectly as a member of a controlled group within the
meaning of Sections 414(b), (c), (m) and (o) of the Code ("Controlled
Group"), have any material liability that remains unsatisfied or arising
under Section 502 of ERISA, Subchapter D of Chapter 1 of Subtitle A of the
Code or under Chapter 43 of Subtitle D of the Code. No action, suit,
grievance, arbitration or other matter of litigation or claim with respect
to any Benefit Plan (other than routine claims for benefits made in the
ordinary course of plan administration for which plan administrative
procedures have not been exhausted) is pending or, to the Company's
knowledge, threatened or imminent against or with respect to any Benefit
Plan, any member of a Controlled Group that includes the Company, or any
fiduciary within the meaning of Section 3(21) of ERISA with respect to a
Benefit Plan which, if determined adversely to the Company, would have a
7
material adverse effect on the Company. Neither the Company nor any member
of a Controlled Group that includes the Company, has any knowledge of any
facts that could give rise to any action, suit, grievance, arbitration or
any other manner of litigation or claim with respect to any Benefit Plan.
xvii. No labor disturbance or dispute by the employees or consultants or
contractors of the Company exists or, to the Company's knowledge, is
threatened which could reasonably be expected to have a material adverse
effect on the conduct of the business or the financial condition (financial
or otherwise), results of operations, properties or prospects of the
Company.
xviii. Except as disclosed in the Prospectus:
a. The Company owns or possesses the full rights to use or is
licensed to use all patents, patent applications, inventions,
copyrights, trademarks, service marks, applications for registration
of trademarks and service marks, trade secrets, know-how and other
intellectual property proprietary information or know-how reasonably
necessary for the conduct of its present or intended business as
described in the Prospectus ("Proprietary Rights"); there are no
pending legal, governmental or administrative proceedings relating
to the Proprietary Rights to which the Company is a party or of
which any property of the Company is subject; and no such
proceedings are, to the best of the Company's knowledge, threatened
or contemplated against the Company by any governmental agency or
authority or by others;
b. The Company has not received notice of any material conflict or
claim with asserted intellectual property rights of any third
parties;
c. To the best of the Company's knowledge, the Company does not
infringe upon the rights or claimed rights of any person under or,
with respect to, any of the Proprietary Rights referred to in
Section 1(A) (xviii)(a) above; except as disclosed in the
Prospectus, the Company is not obligated nor is it under any
liability whatsoever to make any payments by way of royalties, fees
or otherwise to any owner of, licensor of, or other claimant to, any
Proprietary Rights, with respect to the use thereof or in connection
with the conduct of its business or otherwise; and to the best of
the Company's knowledge, the Company is not using any confidential
information or trade secrets of any other party in the conduct of
its business;
d. The Company has not entered into any consent, indemnification,
forbearance to xxx or settlement agreement with respect to the
Proprietary Rights other than in the ordinary course of business;
e. To the best of the Company's knowledge, the Proprietary Rights
are valid and enforceable and no registration relating thereto has
lapsed,
8
expired or been abandoned or canceled or is the subject of
cancellation or other adversarial proceedings, and all applications
therefor are pending and are in good standing;
f. The Company is in compliance in all material respects with its
contractual obligations relating to the protection of any
Proprietary Rights used pursuant to licenses; and
g. The Company owns and/or has the unrestricted right to use all
trade secrets, including know-how, customer lists, inventions,
designs, processes, computer programs and any other technical data
or information necessary to the development, manufacture, operation
and sale of all products sold or proposed to be sold by it, free and
clear of any rights, liens and claims of others.
xix. The Company maintains insurance, which is in full force and effect, of
the types and in the amounts reasonably adequate for its business and, to
the best of its knowledge, consistent with coverage comparable to the
insurance maintained by similar companies or businesses.
xx. The Company has not sold any securities in violation of Section 5 of
the Act.
xxi. The conditions for use of a registration statement on Form S-1 for the
distribution of the Shares have been satisfied with respect to the Company.
xxii. The Company intends to apply the proceeds from the sale of the Shares
by it to the purposes and substantially in the manner set forth in the
Prospectus.
xxiii. No person is entitled, directly or indirectly, to compensation from
the Company or the Underwriters for services as a finder in connection with
the transactions contemplated by this Agreement.
xxiv. All material transactions between the Company and its shareholders
who beneficially own more than 5% of any class of the Company's voting
securities have been accurately disclosed in the Prospectus, and the terms
of each such transaction are fair to the Company and no less favorable to
the Company than the terms that could have been obtained from unrelated
parties.
xxv. The Company has not distributed and will not distribute any prospectus
or other offering material in connection with the offering and sale of the
Shares other than any Preliminary Prospectus or the Prospectus or other
materials permitted by the Act to be distributed by the Company.
xxvi. The Company has not taken and will not take, directly or indirectly,
any action designed to, or which has constituted, or which might reasonably
be expected to cause or result in, stabilization or manipulation of the
price of the Common Stock.
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xxvii. The Company's shares are listed on the Nasdaq SmallCap Market and an
application for listing the Shares on the Nasdaq National Market has been
filed and the Company meets the listing requirements for the Nasdaq
National Market.
xxviii. To the Company's knowledge, none of the Company's officers,
directors or security holders has any affiliations with the National
Association of Securities Dealers, Inc., except as set forth in the
Registration Statement or as otherwise disclosed in writing to the
Representatives.
xxix. Written agreements, which are enforceable by the Representatives,
have been obtained from each officer and director of the Company that
provide that for 180 days following the Effective Date, such persons will
not, without the Representative's prior written consent, sell, transfer
or otherwise dispose of, or agree to sell, transfer or otherwise dispose
of, other than by gift to donees who agree to be bound by the same
restriction or by will or the laws of descent, any of his or her Common
Stock, or any options, warrants or rights to purchase Common Stock or any
shares of Common Stock received upon exercise of any options, warrants
or rights to purchase, which are beneficially held by such persons during
such 180-day period. Except as disclosed in the Registration Statement,
there is no person who holds 5% or more of the outstanding Common Stock of
the Company who is not also an officer or director of the Company.
xxx. The Company is not, and upon completion of the sale of the Shares
contemplated hereby will not be, required to register as an "investment
company" under the Investment Company Act of 1940, as amended.
xxxi. The Company has complied and will comply with all provisions of
Florida Statutes Section 517.075 (Chapter 92-198, Laws of Florida). Neither
the Company, nor any affiliate thereof, does business with the government
of Cuba or with any person of affiliate located in Cuba.
xxxii. Other than as contemplated by this Agreement, the Company has not
incurred any liability for any finder's fee, broker's fee or other agent's
commission in connection with the execution and delivery of this Agreement
or the consummation of the transactions contemplated hereby.
10
B. Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel to the Underwriters shall be deemed to be a
representation and warranty of the Company to each Underwriter as to the
matters covered thereby.
2. PURCHASE, SALE, DELIVERY AND PAYMENT.
A. On the basis of the representations, warranties, and agreements herein
contained, but subject to the terms and conditions herein set forth, the
Company agrees to sell to each of the Underwriters, and the Underwriters
agree, severally and not jointly, to purchase, at a purchase price equal to
____% of the per share price to public of $________ (the "Offering Price"),
the respective amount of Firm Shares set forth opposite such Underwriter's
name in Schedule I hereto, subject to adjustments in accordance with
Section 9 hereof. The Underwriters will collectively purchase all of the
Firm Shares if any are purchased.
B. On the basis of the representations, warranties, and agreements herein
contained, but subject to the terms and conditions herein set forth, the
Company agree to sell to the Representatives for $1.00 the Warrants to
purchase 200,000 additional shares of Common Stock at a price per share
equal to 120 percent of the Offering Price and in accordance with the other
terms and conditions of the Warrant Agreement, and the Representatives
agree to purchase the Warrants. The Warrants will become exercisable on the
first anniversary of the Effective Date and will expire on the fifth
anniversary of the Effective Date.
C. On the basis of the representations and warranties herein contained, but
subject to the terms and conditions herein set forth, the Company hereby
grants an option to the Underwriters to purchase an aggregate of up to
300,000 Option Shares at the same purchase price as the Firm Shares for use
solely in covering any over allotments made by the Underwriters in the sale
and distribution of the Firm Shares. The option granted hereunder may be
exercised at any time (but not more than once) within 30 days after the
Effective Date (as defined in Section 5(A) hereof) upon notice (confirmed
in writing) by the Representatives to the Company setting forth the
aggregate number of Option Shares as to which the Underwriters are
exercising the option and the date on which certificates for such Option
Shares are to be delivered. Option Shares shall be purchased severally for
the account of each Underwriter in proportion to the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto. The
option granted hereby may be canceled by the Representatives upon notice to
the Company as to the Option Shares for which the option is unexercised at
the time of expiration of the 30-day period.
D. The Company will deliver the Firm Shares and the Warrants to the
Representatives at the offices of ________________________________________,
unless some other place is agreed upon, at 10:00 a.m., Denver time, against
payment of the purchase price at the same place, on the third full business
day after trading of the Shares has commenced, or, if the offering
commences after 4:30 p.m., on the fourth full business day after
commencement of the offering, or such earlier time as may be agreed upon
between the Representatives and the Company, such time and place being
herein referred to as the "First Closing Date."
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E. The Company will deliver the Option Shares being purchased by the
Underwriters to the Representatives at the above-referenced offices of
_____________________________, set forth in Section 2(D) above, unless some
other place is agreed, at 10:00 a.m., Denver time, against payment of the
purchase price at such place, on the date determined by the Representatives
and of which the Company has received notice as provided in Section 2(C),
which shall not be earlier than two nor later than five full business days
after the exercise of the option as set forth in Section 2(C), or at such
other time not later than ten full business days thereafter as may be
agreed upon by the Representatives and the Company, such time and date
being herein referred to as the "Second Closing Date."
F. Certificates for the Shares to be delivered will be registered in such
names and issued in such denominations as the Underwriters shall request
two business days prior to the First Closing Date or the Second Closing
Date, as the case may be. The certificates will be made available to the
Underwriters in definitive form for the purpose of inspection and packaging
at least twenty-four (24) hours prior to the respective closing dates.
G. Payment to the Company for the Shares sold and the Warrants shall be
made by wire transfer to an account designated by the Company or by
certified or official bank check or checks in Clearing House funds, payable
to the order of the Company.
3. UNDERWRITERS' OFFERING TO THE PUBLIC.
A. The Underwriters will make a public offering of the Shares directly to
the public (which may include selected dealers who are members in good
standing of the National Association of Securities Dealers, Inc. (the
"NASD") or foreign dealers not eligible for membership in the NASD but who
have agreed to abide by the interpretation of the NASD Board of Governor's
with respect to free-riding and withholding) as soon as the Underwriters
deem practicable after the Registration Statement becomes effective at the
Offering Price, subject to the terms and conditions of this Agreement and
in accordance with the Prospectus. Concessions from the Offering Price may
be allowed selected dealers who are members of the NASD as the Underwriters
determine and the Underwriters will furnish the Company with such
information about the distribution arrangements as may be necessary for
inclusion in the Registration Statement. It is understood that the Offering
Price and such concessions may vary after the public offering. The
Underwriters shall offer and sell the Shares only in jurisdictions in which
the offering of Shares has been duly registered or qualified, or is exempt
from registration or qualification, and shall take reasonable measures to
effect compliance with applicable state and local securities laws.
B. It is understood that the Representatives, individually and not as
representatives, may (but shall not be obligated to) make payment on behalf
of any Underwriter or Underwriters for the Shares to be purchased by such
Underwriter or Underwriters. No such payment by the Representatives shall
relieve such Underwriter or Underwriters from any of its or their other
obligations hereunder.
12
4. COVENANTS OF THE COMPANY.
The Company hereby covenants and agrees with each of the several
Underwriters as follows:
A. If the Company has elected to rely on Rule 430A under the Act, the
Company will prepare and file a Prospectus (or term sheet within the
meaning of Rule 434 under the Act) containing the information omitted
therefrom pursuant to Rule 430A under the Act with the Commission within
the time period required by, and otherwise in accordance with the
provisions of, Rules 424(b), 430A and 434, if applicable, under the Act; if
the Company has elected to rely upon Rule 462(b) under the Act to increase
the size of the offering registered under the Act, the Company will prepare
and file a registration statement with respect to such increase with the
Commission within the time period required by, and otherwise in accordance
with the provisions of, Rule 462(b) under the Act; the Company will prepare
and file with the Commission, promptly upon the request of the
Representatives, any amendments or supplements to the Registration
Statement or Prospectus (including any term sheet within the meaning of
Rule 434 under the Act) that, in the opinion of the Representatives, may be
necessary or advisable in connection with distribution of the Securities by
Underwriters; and the Company will not file any amendment or supplement to
the Registration Statement or Prospectus (including any term sheet within
the meaning of Rule 434 under the Act) to which the Representatives shall
reasonably object by notice to the Company after having been furnished with
a copy a reasonable time prior to the filing.
B. The Company will advise the Representatives promptly of (i) any request
of the Commission for amendment of the Registration Statement or for
supplement to the Prospectus or for any additional information, (ii) the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the use of the Prospectus, (iii) the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, or (iv) the institution or threatening of any proceedings for
that purpose, and the Company will use its best efforts to prevent the
issuance of any such stop order preventing or suspending the use of the
Prospectus or suspending such qualification and to obtain as soon as
possible the lifting thereof, if issued.
C. The Company will promptly prepare and file at its own expense with the
Commission any amendments of, or supplements to, the Registration Statement
and the Prospectus which may be necessary in connection with the
distribution of the Shares by the Underwriters. During the period when a
Prospectus relating to the Shares is required to be delivered under the
Act, the Company will promptly file any amendments of, or supplements to,
the Registration Statement and the Prospectus which may be necessary to
correct any untrue statement of a material fact or any omission to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company will
not file any amendment of, or supplement to, the Registration Statement or
Prospectus, after the Effective Date, which shall not previously have been
submitted to the Representatives and its counsel a reasonable time prior to
such proposed filing or to which the Representatives shall have reasonably
objected. In case any Underwriter is required to deliver a prospectus in
13
connection with sales of any Shares at any time nine months or more after
the Effective Date, upon the request of the Representatives but at the
expense of such Underwriter, the Company will prepare and deliver to such
Underwriter as many copies as the Representatives may request of an amended
or supplemented Prospectus complying with Section 10(a)(3) of the Act.
D. The Company will endeavor to qualify the Shares for sale under the
securities laws of such jurisdictions as the Representatives may reasonably
designate and the Company will file such consents to service of process or
other documents necessary or appropriate in order to effect such
qualification or registration. In each jurisdiction in which the Shares
shall have been qualified or registered as above provided, the Company will
continue such qualifications or registrations in effect for so long as may
be required for purposes of the distribution of the Shares and make and
file such statements and reports in each year as are or may be reasonably
required by the laws of such jurisdiction to permit secondary trading of
the same; provided, however, that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action which would subject it to the service of
process in suits, other than those arising out of the offering or sale of
the Shares.
E. The Company will furnish to the Representatives, as soon as available,
copies of the Registration Statement and all amendments (two of which will
be signed and which shall include all exhibits), each Preliminary
Prospectus, if any, the Prospectus and any amendments or supplements to
such documents including any prospectus prepared to permit compliance with
Section 10(a)(3) of the Act, all in such quantities as the Representatives
may from time to time reasonably request. The Company specifically
authorizes the Underwriters and all dealers to whom any of the Shares may
be sold by the Underwriters to use and distribute copies of such
Preliminary Prospectuses and Prospectuses in connection with the sale of
the Shares as and to the extent permitted by the federal and applicable
state and local securities laws.
F. The Company will make generally available to its security holders an
earnings statement, in a form complying with requirements of Section 11(a)
of the Act and Rule 158 thereunder, as soon as practicable and in any event
not later than 45 days after the end of its fiscal quarter in which occurs
the first anniversary date of the Effective Date, meeting the requirements
of Section 11(a) of the Act covering a period of at least 12 consecutive
months beginning after the Effective Date, and will advise you in writing
when such statement has been so made available.
G. The Company will, for such period up to two years from the First Closing
Date, deliver to the Representatives copies of its annual report and copies
of all other documents, and information furnished by the Company to its
security holders or filed with any securities exchange pursuant to the
requirements of such exchange or with the Commission pursuant to the Act or
the Exchange Act, or any state securities commission by the Company. The
Company will deliver to the Representatives similar reports with respect to
significant subsidiaries, if any, as that term is defined in the rules and
regulations under the Act, which are not consolidated in the Company's
financial statements.
14
H. The Company shall be responsible for and pay all costs and expenses
incident to the performance of its obligations under this Agreement
including, without limiting the generality of the foregoing, (i) all costs
and expenses in connection with the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits),
Preliminary Prospectuses, if any, the Prospectus and any amendments thereof
or supplements to any of the foregoing; (ii) the issuance and delivery of
the Shares and Warrants, including taxes, if any; (iii) the cost of all
certificates representing the Shares and Warrants; (iv) the fees and
expenses of the Transfer Agent for the Shares; (v) the fees and
disbursements of counsel for the Company; (vi) all fees and other charges
of the independent public accountants of the Company; (vii) the cost of
furnishing and delivering to the Underwriters and dealers participating in
the offering copies of the Registration Statement (including appropriate
exhibits), Preliminary Prospectuses, the Prospectus and any amendments of,
or supplements to, any of the foregoing; (viii) the NASD filing fee; (ix)
all fees and expenses of counsel for the Representatives incurred in
qualifying the Shares for sale under the laws of such jurisdictions
designated by the Representatives (including filing fees). In addition, the
Company shall pay to the Representatives as a non-accountable expense
allowance, an amount equal to one percent (1%) of the gross proceeds from
the sale of the Shares. In the event this Agreement is terminated pursuant
to Section 8 below, the Company shall remain obligated to pay the
Representatives their actual accountable out-of-pocket expenses, plus any
fees and expenses described in (ix) above, not to exceed $75,000.
I. The Company will not take, and will use its best efforts to cause each
of its officers and directors not to take, directly or indirectly, any
action designed to or which might reasonably be expected to cause or result
in the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares and will not effect
any sales of any security of the Company which are required to be disclosed
in response to Item 701 of Regulation S-X of the Commission which have not
been so disclosed in the Registration Statement.
J. Upon completion of this offering, the Company will use its best efforts
to maintain the listing of its Common Stock on the National Association of
Securities Dealers Automated Quotation System (Nasdaq) National Market or
SmallCap Market or any other national securities exchange.
K. The Company will apply the net proceeds from the sale of the Shares
substantially in the manner set forth in the Prospectus.
L. During the period ending on the final closing date, the Company agrees
that it will issue press releases, make public statements and respond to
inquiries of the press and securities analysts only after conferring with
its counsel and with the Representatives.
M. Prior to or as of either closing date, the Company shall have performed
each condition to closing required to be performed by the Company pursuant
to Section 5 hereof.
15
5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS.
The respective obligations of the Underwriters to purchase and pay for the
Shares as provided herein shall be subject to the accuracy of the
representations and warranties of the Company, in the case of the Firm Shares as
of the date hereof and the First Closing Date (as if made on and as of the First
Closing Date), and in the case of the Option Shares, as of the date hereof and
the Second Closing Date (as if made on and as of the Second Closing Date), to
the performance by the Company of its obligations hereunder, and to the
satisfaction of the following additional conditions on or before the First
Closing Date in the case of the Firm Shares and on or before the Second Closing
Date in the case of the Option Shares:
A. The Registration Statement has been declared effective as of _________.m
Denver time on ____________, 2000 (the "Effective Date"). All filings
required by Rules 424, 430A and 434 under the Act shall have been timely
made. No stop order suspending the effectiveness thereof shall have been
issued and no proceeding for that purpose shall have been initiated or, to
the knowledge of the Company or the Representatives, threatened by the
Commission or any state securities commission or similar regulatory body.
Any request of the Commission for additional information (to be included in
the Registration Statement or the Prospectus or otherwise) shall have been
complied with to the satisfaction of the Underwriters and their legal
counsel.
B. The Representatives shall not have advised the Company that the
Registration Statement or Prospectus, or any amendment thereof or
supplement thereto, contains any untrue statement of a fact which is
material or omits to state a fact which is material and is required to be
stated therein or is necessary to make the statements contained therein, in
light of the circumstances under which they were made, not misleading;
provided, however, that this Section 5(B) shall not apply to statements in,
or omissions from, the Registration Statement or Prospectus or any
amendment thereof or supplement thereto, which are based upon and conform
to written information furnished to the Company by any of the Underwriters
specifically for use in the preparation of the Registration Statement or
the Prospectus, or any such amendment or supplement.
C. Subsequent to the Effective Date, and except as contemplated or referred
to in the Prospectus, the Company shall not have incurred any direct or
contingent liabilities or obligations material to the Company, or entered
into any material transactions, except liabilities, obligations or
transactions in the ordinary course of business, or declared or paid any
dividends or made any distribution of any kind with respect to its capital
stock; and there shall not have been any change in the capital stock (other
than a change in the number of outstanding shares of Common Stock due to
the exercise of options or warrants described in the Registration Statement
and the Prospectus), or any change in the short-term debt or long-term debt
(including capitalized lease obligations) of the Company, or any issuance
of options, warrants, convertible securities or other rights to purchase
the capital stock of the Company or any change or any development involving
a prospective change in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of the
Company, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in the judgment of the
16
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered.
D. The Representatives shall have received the opinion of Faegre & Xxxxxx
LLP, counsel for the Company, dated the First Closing Date or the Second
Closing Date, as the case may be, addressed to the Underwriters covering
certain corporate matters to the effect that:
i. The Company as been duly incorporated and is validly existing in
good standing under the laws of the State of Colorado; has the
corporate power to own, lease and operate its properties and conduct
its businesses as described in the Prospectus; and is duly qualified
to do business as a foreign corporation in good standing in all
jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification and in which the
failure to be so qualified or in good standing would have a material
adverse effect on condition (financial or otherwise), shareholders'
equity, results of operations, business, properties or prospects of
the Company.
ii. The Company has the number of authorized and outstanding shares of
capital stock of the Company as set forth under the caption
"Capitalization" of the Prospectus, and all issued and outstanding
capital stock of the Company has been duly authorized and is validly
issued, fully paid and nonassessable. There are no statutory
preemptive rights, or to the best knowledge of such counsel, no
similar subscription or purchase rights of securities holders of the
Company with respect to issuance or sale of the Shares by the Company
pursuant to this Agreement, and no rights to require registration of
shares of Common Stock or other securities of the Company because of
the filing of the Registration Statement exist. The Shares conform as
to matters of law in all material respects to the description of such
made in the Prospectus, and such description accurately sets forth the
material legal provisions thereof required to be set forth in the
Prospectus.
iii. The Shares have been duly authorized and, upon delivery to the
Underwriters against payment therefor, will be validly issued, fully
paid and nonassessable.
iv. The Warrants have been duly authorized and issued and constitute
legal, valid and binding obligations of the Company enforceable in
accordance with their terms, except as enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or similar laws
effecting creditors' rights generally or by general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law). The Common Stock Xxxxxx upon exercise
of the Warrants has been duly authorized and reserved by the Company
and when issued as provided for in the Warrant Agreement, will be duly
and validly issued, fully paid and non-assessable and will conform in
all material respects to the description thereof in the Prospectus.
17
v. The certificates evidencing the Shares comply as to form with the
applicable provisions of the laws of the State of Colorado.
vi. The Registration Statement has become effective under the Act and,
to the knowledge of such counsel, no stop orders suspending the
effectiveness of the Registration Statement have been issued and no
proceedings for that purpose have been instituted or are pending or,
to the knowledge of such counsel, contemplated under the Act.
vii. Upon payment for and delivery of the Shares to be sold by the
Company pursuant to this Agreement, the Underwriters will acquire good
and marketable title to such Shares, free and clear of all liens,
encumbrances or claims created by actions of the Company.
viii. To such counsel's knowledge, there are no material legal or
governmental proceedings, pending or threatened, before any court or
administrative body or regulatory agency, to which the Company or its
affiliates is a party or to which any of the properties of the Company
or its affiliates are subject that are required to be disclosed in the
Registration Statement or Prospectus that are not so described, or
statutes, regulations, or legal or governmental proceedings that are
required to be described in the Registration Statement or Prospectus
that are not so described.
ix. To such counsel's knowledge, there are no franchises, leases,
contracts, agreements or documents of a character required to be
disclosed in the Registration Statement or Prospectus or to be filed
as exhibits to the Registration Statement or required to be
incorporated by reference into the Prospectus which are not disclosed
or filed or incorporated by reference, as required.
x. No authorization, approval or consent of any governmental
authority or agency is necessary in connection with the issuance
and sale of the Shares as contemplated under this Agreement, except
such as may be required under the Act or under state or other
securities laws in connection with the purchase and distribution of
the Shares by the Underwriters.
xi. The Registration Statement and the Prospectus and any amendments
thereof or supplements thereto (other than the financial statements
and schedules and supporting financial and statistical data and
information included or incorporated therein, as to which such counsel
need express no opinion) conform in all material respects with the
requirements of the Act and the Rules and Regulations, and the
conditions for use of a registration statement on Form S-1 for the
distribution of the Shares have been satisfied with respect to the
Company.
xii. The statements (i) in the Prospectus under the caption "RISK
FACTORS -Provisions of our articles of incorporation could delay or
prevent a change of control," "BUSINESS - Regulation" -- Facilities,"
"MANAGEMENT - Executive Compensation," "--key employee agreements,"
"-- key employee
18
insurance," "-- Stock options," "CERTAIN TRANSACTIONS," "DESCRIPTION
OF SECURITIES," "SHARES ELIGIBLE FOR FUTURE SALE" "INDEMNIFICATION OF
OFFICERS AND DIRECTORS," and "LEGAL PROCEEDINGS" insofar as such
statements constitute a summary of statutes, legal and governmental
proceeding, contracts and other documents, are accurate summaries and
fairly present the information called for with respect to such
matters.
xiii. Such counsel does not know of any contracts, agreements,
documents or instruments required to be filed as exhibits to the
Registration Statement or described in the Registration Statement or
the Prospectus which are not so filed or described as required, and
does not know of any amendment to the Registration Statement required
to be filed that has not been filed; and insofar as any statements in
the Registration Statement or the Prospectus constitute summaries of
any contract, agreement, document or instrument to which the Company
is a party, such statements are accurate summaries and fairly present
the information called for with respect to such matters.
xiv. To such counsel's knowledge, there are no defects in title or
leasehold interests, or any liens, encumbrances, equities, charges or
claims, not disclosed in the Registration Statement or Prospectus
which would materially affect the present occupancy or use of any of
the real or personal property owned or leased by the Company.
xv. The Company has the corporate power and authorization to enter
this Agreement and to authorize, issue and sell the Shares as
contemplated hereby. This Agreement has been duly authorized, executed
and delivered by, and is a valid and binding agreement of the Company,
enforceable in accordance with its terms, except as enforceability may
be limited by the application of bankruptcy, insolvency, moratorium or
similar laws affecting the rights of creditors generally and judicial
limitations on the right of specific performance and other equitable
remedies and except as the enforceability of indemnification or
contribution provisions hereof may be limited by action of a court
interpreting or applying federal or state securities laws or equitable
principles.
xvi. The performance of this Agreement and the consummation of the
transactions described herein will not result in a violation of or
default under, the Company's Articles of Incorporation, Bylaws or
other governing documents. To the best of such counsel's knowledge,
(a) the Company is not in violation of, or in default under, its
Articles of Incorporation, Bylaws or other governing documents; and
(b) the performance of this Agreement and the consummation of the
transactions described herein will not result in a material violation
of, or a material default under, the terms or provisions of (A) any
bond, debenture, note, or other evidence of indebtedness or any
contract, license, indenture, mortgage, loan agreement, joint venture
or partnership agreement, lease, agreement or instrument to which the
Company is a party or by which the Company or any of its properties is
bound, or (B) any law, order, rule, regulation, writ, injunction, or
19
decree known to such counsel of any government, governmental agency or
court having jurisdiction over the Company or any of its properties.
xvii. To such counsel's knowledge, sales of unregistered securities by
the Company prior to the Effective Date were exempt from registration
requirements of the Act and are not required to be integrated, under
Rule 502(a) of Regulation D of the Act, with the public offering
contemplated hereby.
xviii. The Company is not, and immediately upon completion of the sale
of the Shares contemplated hereby will not be required to register as
an "investment company" under the Investment Company Act of 1940, as
amended.
xix. To the best of such counsel's knowledge, the Company is not
engaged in any negotiations regarding any form of business combination
with another entity.
xx. To such counsel's knowledge, there is no pending or threatened
claim, action or proceeding by any person or governmental agency which
challenges the rights of the Company with respect to any material
intellectual property of the Company, except as provided in the
Prospectus.
xxi. Such counsel has performed certain trademark searches, but has
conducted no patent searches nor reviewed patentability issues on
behalf of the Company. To such counsel's knowledge, and based solely
upon such searching and review, the Company's current products,
services and processes do not infringe on any intellectual property
rights of any third parties, except as set forth in the Prospectus.
xxii. To the knowledge of such counsel, and based solely on the
searching and review identified above, the Company's trademark
registrations which have been issued by the United States Patent and
Trademark Office have been fully maintained and are in full force and
effect. Such counsel gives no opinion, however, as to whether any
third party could successfully challenge the validity or
enforceability of any of such trademark registrations.
In expressing the foregoing opinion, as to matters of fact relevant to
conclusions of law, counsel may rely, to the extent that they deem proper, upon
certificates of public officials and of the officers of the Company, and
opinions of other legal counsel to the Company, provided that copies of all such
certificates and opinions are attached to the opinion.
In addition to the matters set forth above, such opinion shall also include
a statement to the effect that, although such counsel cannot guarantee the
accuracy, completeness or fairness of any of the statements contained in the
Registration Statement or Prospectus, in connection with such counsel's
representation, investigation and due inquiry of the Company in the preparation
of the Registration Statement and Prospectus, such counsel has no reason to
believe that, (i) as of its Effective Date, the Registration Statement or any
further amendment thereto (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion) made by the
Company prior to the First Closing Date or the Second Closing Date, as the case
may be, contained an untrue statement of a material fact or omitted to state a
material fact
20
required to be stated therein or necessary to make the statements therein not
misleading, or (ii), as of its date, the Prospectus or any further amendment or
supplement thereto (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) made by the Company
prior to the First Closing Date or the Second Closing Date, as the case may be,
contained an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading or (iii), as of the First Closing Date or
the Second Closing Date, as the case may be, either the Registration Statement
or the Prospectus or any further amendment or supplement thereto (other than the
financial statements and related schedules therein, as to which such counsel
need express no opinion) made by the Company prior to the First Closing Date or
the Second Closing Date, as the case may be, contains an untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading.
E. The Representatives shall have received from Xxxxxx Xxxx & Priest LLP,
its counsel, such opinion or opinions as the Representatives may reasonably
require, dated the First Closing Date or the Second Closing Date, as the
case may be, with respect to the sufficiency of corporate proceedings and
other legal matters relating to this Agreement and the transactions
contemplated hereby, and other related matters as the Representatives may
reasonably request; and the Company and its counsel shall have furnished to
said counsel such documents as they may have reasonably requested for the
purpose of enabling them to pass upon such matters. In connection with such
opinion, as to matters of fact relevant to conclusions of law, such counsel
may rely, to the extent that they deem proper, upon representations or
certificates of public officials and of responsible officers of the
Company.
F. The Representatives and the Company shall have received letters, dated
the date hereof and the First Closing Date and the Second Closing Date, as
the case may be, from Ernst & Young, to the effect that they are
independent public accountants with respect to the Company within the
meaning of the Act and the related rules and regulations, stating that in
their opinion the financial statements and schedules examined by them and
included in the Registration Statement comply in form in all material
respects with the applicable accounting requirements of the Act and the
related rules and regulations, and containing such other statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
the Prospectus.
G. The Representatives shall have received from the Company a certificate,
dated as of each Closing Date, of the Chief Executive Officer and the Chief
Financial Officer of the Company to the effect that as of the First Closing
Date and the Second Closing Date:
i. The representations and warranties of the Company in this Agreement
are true and correct as if made on and as of each Closing Date. 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,
each such Closing Date.
21
ii. No stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceeding for that purpose has been
instituted or is pending or to the best knowledge of such officers
contemplated under the Act.
iii. Neither the Registration Statement nor the Prospectus nor any
amendment thereof or supplement thereto includes any untrue statement
of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances in which they were made, not misleading, and,
since the Effective Date, there has occurred no event required to be
set forth in an amended or supplemented prospectus which has not been
so set forth; provided, however, that such certificate does not
require any representation concerning statements in, or omissions
from, the Registration Statement or Prospectus or any amendment
thereof or supplement thereto, which are based upon and conform to
written information furnished to the Company by any of the
Underwriters specifically for use in the preparation of the
Registration Statement or the Prospectus or any such amendment or
supplement.
iv. Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and except as
contemplated or referred to in the Prospectus, the Company has not
incurred any direct or contingent liabilities or obligations material
to the Company, or entered into any material transactions, except
liabilities, obligations or transactions in the ordinary course of
business, or declared or paid any dividend or made any distribution of
any kind with respect to its capital stock, and there has not been any
change in the capital stock (other than a change in the number of
outstanding shares of Common Stock due to the exercise of options or
warrants described in the Registration Statement and the Prospectus)
and there has not been any material adverse change in the capital
stock, short-term debt, or long-term debt (including capitalized lease
obligations) of the Company, or any material adverse change or any
development involving a prospective material adverse change (whether
or not arising in the ordinary course of business) in or affecting the
general affairs, condition (financial or otherwise), business, key
personnel, property, prospects, shareholders' equity or results of
operations of the Company.
v. Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, the Company has not
sustained any material loss of, or damage to, its properties, whether
or not insured.
vi. Except as is otherwise expressly stated in the Registration
Statement and Prospectus there are no material actions, suits or
proceedings pending before any court or governmental agency, authority
or body, or, to the best of such officer's knowledge, threatened, to
which the Company is a party or of which the business or property of
the Company is the subject.
H. The Representatives shall have received, dated as of each Closing Date,
from the Secretary of the Company a certificate of incumbency certifying
the names, titles and signatures of the officers authorized to execute the
resolutions of the Board of Directors
22
of the Company authorizing and approving the execution, delivery and
performance of this Agreement, a copy of such resolutions to be attached to
such certificate, certifying such resolutions and certifying that the
Articles of Incorporation and the Bylaws of the Company have been validly
adopted and have not been amended or modified, except as described in the
Prospectus.
I. The Representatives shall have received a written agreement, enforceable
by the Representatives, from each of officer and director of the Company,
that for 180 days following the Effective Date, such person will not,
without the Representatives' prior written consent, sell, transfer or
otherwise dispose of, or agree to sell, transfer or otherwise dispose of,
other than by gift to donees who agree to be bound by the same restriction
or by will or the laws of descent, any of his or her Common Stock, or any
options, warrants or rights to purchase Common Stock or any shares of
Common Stock received upon exercise of any options, warrants or rights to
purchase Common Stock, all of which are beneficially held by such persons
during the 180 day period.
J. The Shares shall have been duly listed on either the Nasdaq SmallCap
Market or the Nasdaq National Market.
K. The Company shall have furnished to the Underwriters, dated as of the
date of each Closing Date, such further certificates and documents as the
Underwriters shall have reasonably required.
L. All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are reasonably
satisfactory to the Representatives and their legal counsel. All statements
contained in any certificate, letter or other document delivered pursuant
hereto by, or on behalf of, the Company shall be deemed to constitute
representations and warranties of the Company.
M. The Representatives may waive in writing the performance of any one or
more of the conditions specified in this Section 5 or extend the time for
their performance.
23
N. If any of the conditions specified in this Section 5 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, this
Agreement and all obligations of the Underwriters hereunder may be canceled
at, or at any time prior to, each closing date by the Representatives. Any
such cancellation shall be without liability of the Underwriters to the
Company or to any other party, and shall not relieve the Company of its
obligations under Section 4(H) hereof. Notice of such cancellation shall be
given to the Company at the address specified in Section 11 hereof in
writing, or by facsimile or telephone and confirmed in writing.
6. INDEMNIFICATION.
A. The Company hereby agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of the Act, against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter or each such controlling person
may become subject, under the Act, the Exchange Act, the common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof), arise out of, or are based upon: (i) any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, any Preliminary Prospectus or the Prospectus
including any amendment thereof, or (ii) the omission or alleged omission
to state in the Registration Statement, any Preliminary Prospectus or
Prospectus including any amendment thereof 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; or (iii) any
untrue statement or alleged untrue statement of a material fact contained
in any application or other statement executed by the Company or based upon
written information furnished by the Company filed in any jurisdiction in
order to quality the Shares under, or exempt the Shares or the sale thereof
from qualification under, the securities laws of such jurisdiction, or the
omission or alleged omission to state in such application or statement 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; and the Company will reimburse each Underwriter and
each such controlling person for any legal or other expenses reasonably
incurred by such Underwriter or controlling person (subject to the
limitation set forth in Section 6(D) hereof, in connection with
investigating or defending against any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of, or is based upon, any
untrue statement, or alleged untrue statement, omission or alleged
omission, made in reliance upon and in conformity with information
furnished to the Company by, or on behalf of, any Underwriter in writing
specifically for use in the preparation of the Registration Statement or
any such post effective amendment thereof, any such Preliminary Prospectus
or the Prospectus or any such amendment thereof or supplement thereto; and
provided further, that the foregoing indemnity agreement is subject to the
condition that, insofar as it relates to any untrue statement, alleged
untrue statement, omission or alleged omission made in any Preliminary
Prospectus but eliminated, remedied or corrected in the Prospectus (or any
amendment or supplement thereto) such indemnity agreement shall not inure
to the benefit of any Underwriter (or to the benefit of any person who
controls such Underwriter), if the person asserting any loss, claim,
24
damage or liability as a result of such untrue statement or omission
purchased the Shares from such Underwriter and was not sent or given a copy
of the Prospectus with, or prior to, the written confirmation of the sale
of such Shares to such person by such Underwriter unless such failure to
deliver the Prospectus (as amended or supplemented) was the result of
noncompliance by the Company with Section 4(C). This indemnity agreement is
in addition to any liability which the Company may otherwise have.
B. Each Underwriter severally, but not jointly, agrees to indemnify and
hold harmless the Company, each of the Company's directors, each of the
Company's officers who has signed the Registration Statement and each
person who controls the Company within the meaning of the Act against any
losses, claims, damages or liabilities to which the Company or any
director, officer, or controlling person may become subject, under the Act,
the Exchange Act, the common law, or otherwise, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereof) arise out
of, or are based upon, (i) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, any Preliminary
Prospectus or Prospectus, including any amendment thereof, (ii) the
omission or alleged omission to state in the Registration Statement, any
Preliminary Prospectus or Prospectus including any amendment thereof 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; or (iii) any untrue statement or alleged untrue
statement of a material fact contained in any application or other
statement executed by the Company or by any Underwriter and filed in any
jurisdiction in order to qualify the Shares under, or exempt the Shares or
the sale thereof from qualification under, the securities laws of such
jurisdiction, or the omission or alleged omission to state in such
application or statement 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; in each of the above cases to
the extent, but only the extent, that such untrue statement, alleged untrue
statement, omission or alleged omission, was made in reliance upon and in
conformity with information furnished to the Company by, or on behalf of,
any Underwriter in writing specifically for use in the preparation of the
Registration Statement or any such post effective amendment thereof, any
such Preliminary Prospectus or the Prospectus or any such amendment thereof
or supplement thereto, or in any application or other statement executed by
the Company or by any Underwriter and filed in any jurisdiction; and each
Underwriter will reimburse any legal or other expenses reasonably incurred
by the Company or any such director, officer or controlling person in
connection with investigating or defending against any such loss, claim,
damage, liability or action as such expenses are incurred. This indemnity
agreement is in addition to any liability which the Underwriters may
otherwise have.
C. Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action or proceeding (including any
governmental investigation), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this
Section 6, notify in writing the indemnifying party of the commencement
thereof. The failure to so notify the indemnifying party will not relieve
such party from any liability under this Section 6 as to the particular
item for which indemnification is then being sought, unless such failure so
to notify prejudices the
25
indemnifying party's ability to defend such action. In case any such action
is brought against any indemnified party and the indemnified party notifies
an indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel who shall be reasonably
satisfactory to such indemnified party; and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that if, in the reasonable judgment of the indemnified party, it
is advisable for such parties and controlling persons to be represented by
separate counsel, any indemnified party shall have the right to employ
separate counsel to represent it and all other parties and their
controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Underwriters
against the Company or by the Company against the Underwriters hereunder,
in which event the fees and expenses of such separate counsel shall be
borne by the indemnifying party; provided, however, if the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from
or additional to those available to the indemnifying party, or the
indemnified and indemnifying parties may have conflicting interests which
would make it inappropriate for the same counsel to represent both of them,
the indemnified party shall have the right to select separate counsel to
assume such defense and to otherwise participate in the defense of such
action on behalf of such indemnified party and all other parties and their
controlling persons. Any such indemnifying party shall not be liable to any
such indemnified party on account of any settlement of any claim or action
effected without the consent of such indemnifying party.
7. CONTRIBUTION.
A. If the indemnification provided for in Section 6 is unavailable or
insufficient to hold harmless any indemnified party in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Underwriters from the offering of
the Shares. In the event that the allocation provided by the immediately
preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute in such proportion as is appropriate to
reflect not only the relative benefits referred to above but also the
relative fault of the Company and the Underwriters in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
Company and the Underwriters agree that contribution determined by per
capita allocation (even if the Underwriters were considered a single
person) would not be equitable. The respective relative benefits received
by the Company on the one hand, and the Underwriters, on the other, shall
be deemed to be in the same proportion (a) in the case of the Company as
the total price paid to the Company for the Shares by the Underwriters (net
of underwriting discount received but before
26
deducting expenses) bears to the aggregate Offering Price of the Shares,
and (b) in the case of the Underwriters, as the aggregate underwriting
discount received by them bears to the aggregate Offering Price of the
Shares, in each case as reflected in the Prospectus. The relative fault of
the Company 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 alleged omission to state a material fact relates
to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages and
liabilities referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. Notwithstanding the
provisions of this Section 7, (i) 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 were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to
pay by reason of any untrue or alleged untrue statement or omission or
alleged omission in the Registration Statement, any Preliminary Prospectus,
the Prospectus or any amendment or supplement thereto. The Underwriters'
obligation to contribute pursuant to this Section 7 is several and not
joint. No person guilty of fraudulent misrepresentation (within the meaning
of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section
7, each person who controls an Underwriter within the meaning of the Act or
the Exchange Act shall have the same rights to contribution as such
Underwriter, each person who controls the Company within the meaning of the
Act or the Exchange Act shall have the same rights to contribution as the
Company and each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company.
B. Promptly after receipt by a party to this Agreement of notice of the
commencement of any action, suit, or proceeding, such person will, if a
claim for contribution in respect thereof is to be made against another
party (the "Contributing Party"), notify the Contributing Party of the
commencement thereof, but the failure to so notify the Contributing Party
will not relieve the Contributing Party from any liability which it may
have to any party other than under this Section 7, unless such failure to
so notify prejudices the Contributing Party's ability to defend such
action. Any notice given pursuant to Section 6 hereof shall be deemed to be
like notice hereunder. In case any such action, suit or proceeding is
brought against any party, and such person notifies a Contributing Party of
the commencement thereof, the Contributing Party will be entitled to
participate therein with the notifying party and any other Contributing
Party similarly notified.
C. The obligations of the Company under this Section 7 shall be in addition
to any liability which the Company may otherwise have, and the obligations
of the Underwriter under this Section 7 shall be in addition to any
liability which the Underwriters may otherwise have.
27
8. EFFECTIVE DATE AND TERMINATION.
A. This Agreement shall become effective at the later of (i) the day upon
which this Agreement shall have been executed and delivered by the parties
hereto, or (ii) at 10:00 a.m. Denver time, on the first full business day
following the Effective Date, or at such earlier time after the Effective
Date as the Representatives in its discretion shall first release the
Shares for offering to the public. For purposes of this Section 8, the
Shares shall be deemed to have been released to the public upon release by
the Representatives of the publication of a newspaper advertisement
relating to the Shares or upon release of a telegram or a letter offering
the Shares for sale to securities dealers, whichever shall first occur.
B. The Representatives shall have the right to terminate this Agreement by
giving notice to the Company as hereinafter specified at any time prior to
the First Closing Date, and the option referred to in Section 2(C), if
exercised, may be canceled at any time by the Representatives by giving
such notice to the Company at any time prior to the Second Closing Date, if
(i) the Company shall have failed, refused or been unable, at or prior to
the First Closing Date, to perform any material agreement on its part to be
performed hereunder; (ii) any other condition of the Underwriters'
obligations hereunder is not fulfilled; (iii) trading in securities
generally on the New York Stock Exchange, American Stock Exchange or the
Nasdaq Stock Market shall have been suspended, or minimum or maximum prices
for trading shall have been required or established by the Commission or by
any such exchange or the Nasdaq Stock Market; (iv) a banking moratorium
shall have been declared by federal, New York or Colorado authorities; (v)
there shall have been such a material adverse change in general economic,
monetary, political or financial conditions, or the effect of international
conditions on the financial markets in the United States shall be such as,
in the judgment of the Representatives, makes it impracticable or
inadvisable to proceed with the completion of the sale of and payment for
the Shares; (vi) there shall have been the enactment, publication, decree
or other promulgation of any federal or state statute, regulation, rule or
order of any court or other governmental authority, which in the judgment
of the Representatives materially and adversely affects or will materially
and adversely affect the business or operations of the Company; or (vii)
there shall be an outbreak of major hostilities (or an escalation thereof)
in which the United States is involved or a formal declaration of war by
the United States of America shall have occurred or any other substantial
national or international calamity or any other event or occurrence of a
similar character shall have occurred since the execution of this Agreement
that, in the judgment of the Representatives, makes it impracticable or
inadvisable to proceed with the completion of the sale of and payment for
the Shares. Any such termination shall be without liability of any party to
any other party, except as provided in Sections 6 and 7 hereof; provided,
however, that the Company shall remain obligated to pay costs and expenses
to the extent provided in Section 4(H) hereof.
C. If the Representatives elect to prevent this Agreement from becoming
effective or to terminate this Agreement as provided in this Section 8, it
shall notify the Company promptly by telecopy or telephone, confirmed by
letter sent to the address specified in Section 11 hereof. If the Company
shall elect to prevent this Agreement from becoming
28
effective, it shall notify the Representatives promptly by telecopy or
telephone, confirmed by letter sent to the address specified in Section 11
hereof.
D. If the Company shall fail at the First Closing Date to sell and deliver
the number of Shares which it is obligated to sell hereunder, then this
Agreement shall terminate without any liability on the part of any
Underwriter. No action taken pursuant to this Section 8(D) shall relieve
the Company from liability, if any, in respect of such default.
9. DEFAULT OF UNDERWRITER.
If on the First Closing Date or the Second Closing Date, as the case may
be, any Underwriter shall fail to purchase and pay for the portion of the Shares
which such Underwriter has agreed to purchase and pay for on such date
(otherwise than by reason of any default on the part of the Company), you, as
Representatives of the Underwriters, shall use your best efforts to procure
within 36 hours thereafter one or more of the other Underwriters, or any others,
to purchase from the Company such amounts as may be agreed upon, and upon the
terms set forth herein, of the Firm Shares or Option Shares, as the case may be,
which the defaulting Underwriter or Underwriters failed to purchase. If during
such 36 hours you, as Representatives, shall not have procured such other
Underwriters, or any others, to purchase the Firm Shares or Option Shares, as
the case may be, agreed to be purchased by the defaulting Underwriter or
Underwriters, then (i) if the aggregate number of Shares with respect to which
such default shall occur does not exceed 10% of the Firm Shares or Option
Shares, as the case may be, covered hereby the other Underwriters shall be
obligated, severally, in proportion to the respective numbers of Firm Shares or
Option Shares, as the case may be, which they are obligated to purchase
hereunder, to purchase the Firm Shares or Option Shares, as the case may be,
which such defaulting Underwriter or Underwriters failed to purchase or (ii) if
the aggregate number of shares of Firm Shares or Option Shares, as the case may
be, with respect to which such default shall occur exceeds 10% of the Firm
Shares or Option Shares, as the case may be, covered hereby, the Company or you
as the Representatives of the Underwriters will have the right, by written
notice given within the next 36-hour period to the parties to this Agreement, to
terminate this Agreement without liability on the part of the non-defaulting
Underwriters or of the Company except for expenses to be borne by the Company
and the Underwriters as provided in Section 4(H) hereof and the indemnity and
contribution agreements in Sections 6 and 7 hereof. In the event of a default by
any Underwriter or Underwriters, as set forth in this Section 9, the First
Closing Date or Second Closing Date, as the case may be, may be postponed for
such period, not exceeding seven days, as you, as Representatives, may determine
in order that the required changes, not including a reduction in the number of
Firm Shares, in the Registration Statement or in the Prospectus or in any other
documents or arrangements may be effected. The term "Underwriter" includes any
person substituted for a defaulting Underwriter. Any action taken under this
Section 9 shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
10. SURVIVAL.
The respective indemnity and contribution agreements of the Company and the
Underwriters contained in Sections 6 and 7, respectively, the representations
and warranties of the Company set forth in Section 1 hereof and the covenants of
the Company set forth in Section
29
4 hereof shall remain operative and in full force and effect, regardless of any
investigation made by, or on behalf of, the Underwriters, the Company, any of
its officers and directors or any controlling person referred to in Sections 6
and 7 and shall survive the delivery of and payment for the Shares. The
aforesaid indemnity and contribution agreements shall also survive any
termination or cancellation of this Agreement. Any successor of any party or of
any such controlling person, or any legal representative of such controlling
person, as the case may be, shall be entitled to the benefit of the respective
indemnity and contribution agreements.
11. NOTICES.
All notices or communications hereunder, except as herein otherwise
specifically provided, shall be in writing and, if sent to the Representatives
or any of the Underwriters, shall be mailed, delivered, or telecopied and
confirmed, to Xxxx X. Xxxxxxx and Company, Incorporated, 000 Xxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxx XxXxxxxx, with a copy to J.
Xxxxxxx Xxxxxx, Esq., Xxxxxx Xxxx & Priest LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000; or, if sent to the Company, shall be mailed, delivered, or
telegraphed, and confirmed, to ACT Teleconferencing, Inc., 0000 Xxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxx, with a copy to
Xxxxxxx X. Xxxxxxxx, Esq., Faegre & Xxxxxx LLP, 000 Xxxxxxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxxxxx 00000.
12. INFORMATION FURNISHED BY THE UNDERWRITERS.
The statements under the caption "Underwriting" in any Preliminary
Prospectus and in the Prospectus constitute the only information furnished by,
or on behalf of, the Underwriters in writing specifically for use with reference
to the Underwriters referred to in Section 1(A)(ii) and Section 6 hereof.
13. PARTIES.
This Agreement shall inure to the benefit of and be binding upon each of
the Underwriters and the Company, their respective successors and assigns and
the officers, directors and controlling persons referred to in Sections 6 and 7.
Nothing expressed in this Agreement is intended or shall be construed to give
any person or corporation, other than the parties hereto, their respective
successors and assigns and the controlling persons, officers and directors
referred to in Sections 6 and 7 any legal or equitable right, remedy or claim
under, or in respect of, this Agreement or any provision herein contained, this
Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of the parties hereto and their
respective executors, administrators, successors, assigns and such controlling
persons, officers and directors, and for the benefit of no other person or
corporation. No purchaser of any Shares from the Underwriters shall be construed
to be a successor or assign merely by reason of such purchase.
14. GOVERNING LAW.
This Agreement shall be construed and enforced in accordance with the laws
of the State of Minnesota, without regard to conflict of law provisions.
30
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed counterpart of this Agreement,
whereupon it will become a binding agreement between the Company and each of the
several Underwriters in accordance with its terms.
Very truly yours,
ACT TELECONFERENCING, INC.
By:
----------------------------------
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted by us
for ourselves and as Representatives of the Underwriters referred to in the
foregoing Agreement as of the date first above written.
XXXX X. XXXXXXX AND COMPANY, INCORPORATED
XXXXXXX BROS., LP
By: XXXX X. XXXXXXX AND COMPANY, INCORPORATED
By:
-----------------------------------
Name:
Title:
31
SCHEDULE I
SCHEDULE OF UNDERWRITERS
Name of Underwriter Number of Firm Shares
------------------- ---------------------
Xxxx X. Xxxxxxx and Company, Incorporated.........................
Xxxxxxx Bros., LP.................................................
[OTHERS]
Total..............................................2,000,000
==========
S-1
SCHEDULE II
SCHEDULE OF SHAREHOLDERS REQUIRED TO EXECUTE LOCK-UP AGREEMENTS
Name of Shareholder Number of Shares
------------------- ----------------
Total.......................................................
----------
(1) Represents shares held jointly.
S-II
