Exhibit 1
2,900,000 Shares
UNITED NATURAL FOODS, INC.
Common Stock
UNDERWRITING AGREEMENT
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_________, 1996
SMITH BARNEY INC.
OPPENHEIMER & CO., INC.
ROBERTSON, STEPHENS & COMPANY LLC
As Representatives of the Several Underwriters
c/o SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
Dear Sirs:
United Natural Foods, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell an aggregate of 2,900,000 shares of its common stock,
$.01 par value per share, to the several Underwriters named in Schedule II
hereto (the "Underwriters"). The Company's common stock, $.01 par value, is
hereinafter referred to as the "Common Stock" and the 2,900,000 shares of Common
Stock to be issued and sold to the Underwriters by the Company are hereinafter
referred to as the "Firm Shares." The persons named in Schedule I hereto (the
"Selling Stockholders") severally propose to sell to the Underwriters, upon the
terms and conditions set forth in Section 2 hereof, up to an additional 435,000
shares (the "Additional Shares") of Common Stock. The Company and the Selling
Stockholders are hereinafter sometimes referred to as the "Sellers." The Firm
Shares and the Additional Shares are hereinafter collectively referred to as the
"Shares."
The Company and the Selling Stockholders wish to confirm as follows their
respective agreements with you (the "Representatives") and the other several
Underwriters on whose behalf you are acting, in connection with the several
purchases of the Shares by the Underwriters.
1. Registration Statement and Prospectus. The Company has prepared and
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filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission
thereunder (collectively, the "Act"), a registration statement on Form S-1 under
the Act (the "registration statement"), including a prospectus subject to
completion relating to the Shares. The term "Registration Statement" as used in
this Agreement means the registration statement (including all financial
schedules and exhibits), as amended at the time it becomes effective, or, if the
registration statement became effective prior to the execution of this
Agreement, as supplemented or amended prior to the execution of this Agreement,
together with any registration statement relating to the offering of the Shares
filed by the Company pursuant to Rule 462(b) of the Act. If it is contemplated,
at the time this Agreement is executed, that a post-effective amendment to the
registration statement will be filed and must be declared effective before the
offering of the Shares may commence, the term "Registration Statement" as used
in this Agreement means the registration statement as amended by said post-
effective amendment. The term "Prospectus" as used in this Agreement means the
prospectus in the form included in the Registration Statement, or, if the
prospectus included in the Registration Statement omits information in reliance
on Rule 430A under the Act and such information is included in a prospectus
filed with the Commission pursuant to Rule 424(b) under the Act, the term
"Prospectus" as used in this Agreement means the prospectus in the form included
in the Registration Statement as supplemented by the addition of the Rule 430A
information contained in the prospectus filed with the Commission pursuant to
Rule 424(b). The term "Prepricing Prospectus" as used in this Agreement means
the prospectus subject to completion in the form included in the registration
statement at the time of the initial filing of the registration statement with
the Commission, and as such prospectus shall have been amended from time to time
prior to the date of the Prospectus.
2. Agreements to Sell and Purchase. The Company hereby agrees, subject to
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all the terms and conditions set forth herein, to issue and sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each Underwriter agrees, severally and not jointly,
to purchase from the Company, at a purchase price of $_____ per Share (the
"purchase price per share"), the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule II hereto (or such number of Firm Shares
increased as set forth in Section 12 hereof).
The Selling Stockholders listed in Schedule I hereto also agree, severally
and not jointly, subject to all the terms and conditions set forth herein, to
sell to the Underwriters, and, upon the basis of the representations, warranties
and agreements of the Company and the Selling Stockholders herein contained and
subject to all the terms and conditions set forth herein, the Underwriters shall
have the right to purchase from the Selling Stockholders listed in Schedule I
hereto, at the purchase price per share, pursuant to an option (the "over-
allotment option") which may be exercised at any time, but not more than one
time, prior to 9:00 P.M., New York City time, on the 30th day after the date of
the Prospectus, up to an aggregate of 435,000 Additional Shares from the Selling
Stockholders listed in Schedule I hereto (the maximum number of Additional
Shares which each of them agrees to sell upon the exercise by the Underwriters
of the over-allotment option is set forth opposite their respective names in
Schedule I). Additional Shares may be purchased only for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. The
number of Additional Shares which the Underwriters
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elect to purchase upon any exercise of the over-allotment option shall be
provided, first, by Triumph - Connecticut Limited Partnership, up to the maximum
number of Additional Shares which it has agreed to sell, as indicated on
Schedule I, and, second, by the Funk Family 1992 Revocable Living Trust, up to
the maximum number of Additional Shares which it has agreed to sell, as
indicated on Schedule I. Upon any exercise of the over-allotment option, each
Underwriter, severally and not jointly, agrees to purchase from each Selling
Stockholder who has agreed to sell Additional Shares the number of Additional
Shares (subject to such adjustments as you may determine in order to avoid
fractional shares) which bears the same proportion to the number of Additional
Shares to be sold by each Selling Stockholder who has agreed to sell Additional
Shares as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule II hereto (or such number of Firm Shares increased as
set forth in Section 12 hereof) bears to the aggregate number of Firm Shares to
be sold by the Company.
Certificates in transferable form for the Shares (including any Additional
Shares) which each of the Selling Stockholders agrees to sell pursuant to this
Agreement or, in the case of Shares (including any Additional Shares) issuable
pursuant to the exercise of a warrant held by a Selling Stockholder (such
Selling Stockholder being referred to herein as a "Warrantholder"), the original
warrant for the purchase of such Shares has been placed in custody with the
Company (the "Custodian") for delivery under this Agreement pursuant to a
Custody Agreement and Power of Attorney (the "Custody Agreement") executed by
each of the Selling Stockholders appointing Norman A. Cloutier and Steven H.
Townsend as agents and attorneys-in-fact (the "Attorneys-in-Fact"). The parties
hereto acknowledge that, pursuant to the terms of the Custody Agreement, the
exercise price relating to any such warrants deposited with the Custodian will
be paid by deduction from amounts delivered at the Closing Date in repayment of
certain indebtedness owed to the Warrantholder by the Company. Each Selling
Stockholder severally agrees that (i) the Shares represented by the
certificates, or issuable pursuant to the exercise of the warrant, and the
warrant, held in custody pursuant to the Custody Agreement are subject to the
interests of the Underwriters, the Company and each other Selling Stockholder,
(ii) the arrangements made by the Selling Stockholders for such custody are,
except as specifically provided in the Custody Agreement, irrevocable, and (iii)
the obligations of the Selling Stockholders hereunder and under the Custody
Agreement shall not be terminated by any act of such Selling Stockholder or by
operation of law, whether by the death or incapacity of any Selling Stockholder
or the occurrence of any other event. If any Selling Stockholder shall die or
be incapacitated or if any other event shall occur before the delivery of the
Shares hereunder, certificates for the Shares of such Selling Stockholder, or
the original warrant for the Shares to be sold by any Warrantholder shall be
delivered to the Underwriters by the Attorneys-in-Fact in accordance with the
terms and conditions of this Agreement and the Custody Agreement as if such
death or incapacity or other event had not occurred, regardless of whether or
not the Attorneys-in-Fact or any Underwriter shall have received notice of such
death, incapacity or other event. Each Attorney-in-Fact is authorized, on
behalf of each of the Selling Stockholders, to execute this Agreement and any
other documents necessary or desirable in connection with the sale of the Shares
to be sold hereunder by such Selling Stockholder, to make delivery of the
certificates or original warrant for such Shares, to receive the proceeds of the
sale of such Shares, to pay to the Company the exercise price of any such
warrants by surrender of the applicable
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amount of notes owed to the Warrantholder, to give receipts for such proceeds,
to pay therefrom any expenses to be borne by such Selling Stockholder in
connection with the sale and public offering of such Shares, to distribute the
balance thereof to such Selling Stockholder, and to take such other action as
may be necessary or desirable in connection with the transactions contemplated
by this Agreement. Each Attorney-in-Fact agrees to perform his duties under the
Custody Agreement.
3. Terms of Public Offering. The Sellers have been advised by you that
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the Underwriters propose to make a public offering of their respective portions
of the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable and initially to offer the
Shares upon the terms set forth in the Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to the Under-
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writers of and payment for the Firm Shares shall be made at the office of Hale
and Dorr, 60 State Street, Boston, Massachusetts 02109, at 10:00 A.M., Boston
time, on ___________, 1996 (the "Closing Date"). The place of closing for the
Firm Shares and the Closing Date may be varied by agreement among you, the
Company and the Attorneys-in-Fact.
Delivery to the Underwriters of and payment for any Additional Shares to be
purchased by the Underwriters shall be made at the aforementioned office of Hale
and Dorr at such time on such date (the "Option Closing Date"), which may be the
same as the Closing Date but shall in no event be earlier than the Closing Date
nor earlier than two nor later than ten business days after the giving of the
notice hereinafter referred to, as shall be specified in a written notice from
you on behalf of the Underwriters to the Company and the Attorneys-in-Fact of
the Underwriters' determination to purchase a number, specified in such notice,
of Additional Shares. The place of closing for any Additional Shares and the
Option Closing Date for such Shares may be varied by agreement among you, the
Company and the Attorneys-in-Fact.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request prior to 9:30 A.M., New York City time, on the second
business day preceding the Closing Date or any Option Closing Date, as the case
may be. Such certificates shall be made available to you in New York City for
inspection and packaging not later than 9:30 A.M., New York City time, on the
business day next preceding the Closing Date or the Option Closing Date, as the
case may be. The certificates evidencing the Firm Shares and any Additional
Shares to be purchased hereunder shall be delivered to you on the Closing Date
or the Option Closing Date, as the case may be, against payment of the purchase
price therefor in immediately available funds.
5. Agreements of the Company. The Company agrees with the several
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Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, the
Company will endeavor to cause the Registration
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Statement or such post-effective amendment to become effective as soon as
possible and will advise you promptly and, if requested by you, will confirm
such advice in writing, when the Registration Statement or such post-effective
amendment has become effective.
(b) The Company will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of any request by the Commission for
amendment of or a supplement to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information; (ii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction or the initiation of any proceeding for
such purpose; and (iii) within the period of time referred to in paragraph (f)
below, of any change in the Company's financial condition, business, properties,
net worth or results of operations, or of the happening of any event, which
makes any statement of a material fact made in the Registration Statement or the
Prospectus (as then amended or supplemented) untrue or which requires the making
of any additions to or changes in the Registration Statement or the Prospectus
(as then amended or supplemented) in order to state a material fact required by
the Act or the regulations thereunder to be stated therein or necessary in order
to make the statements therein not misleading, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to comply with the
Act or any other law. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will
make reasonable efforts to obtain the withdrawal of such order at the earliest
possible time.
(c) The Company will furnish to you, without charge, four signed
copies of the registration statement as originally filed with the Commission and
of each amendment thereto, including financial statements and all exhibits
thereto, and will also furnish to you, without charge, such number of conformed
copies of the registration statement as originally filed and of each amendment
thereto, but without exhibits, as you may reasonably request.
(d) The Company will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus of which you
shall not previously have been advised or to which you shall reasonably object
after being so advised or (ii) so long as, in the opinion of counsel for the
Underwriters, a Prospectus is required to be delivered in connection with sales
by any Underwriter or dealer, file any information, documents or reports
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), without delivering a copy of such information, documents or reports to
you, as Representatives of the Underwriters, prior to or concurrently with such
filing.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you have
reasonably requested, copies of each form of the Prepricing Prospectus. The
Company consents to the use, in accordance with the provisions of the Act and
with the securities or Blue Sky laws of the jurisdictions in which the Shares
are offered by the several Underwriters and by dealers, prior to the date of the
Prospectus, of each Prepricing Prospectus so furnished by the Company.
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(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the opinion of
counsel for the Underwriters a prospectus is required by the Act to be delivered
in connection with sales by any Underwriter or dealer, the Company will
expeditiously deliver to each Underwriter and each dealer, without charge, as
many copies of the Prospectus (and of any amendment or supplement thereto) as
you may reasonably request. The Company consents to the use of the Prospectus
(and of any amendment or supplement thereto) in accordance with the provisions
of the Act and with the securities or Blue Sky laws of the jurisdictions in
which the Shares are offered by the several Underwriters and by all dealers to
whom Shares may be sold, both in connection with the offering and sale of the
Shares and for such period of time thereafter as the Prospectus is required by
the Act to be delivered in connection with sales by any Underwriter or dealer.
If during such period of time any event shall occur that in the judgment of the
Company or in the opinion of counsel for the Underwriters is required to be set
forth in the Prospectus (as then amended or supplemented) or should be set forth
therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
to supplement or amend the Prospectus to comply with the Act or any other law,
the Company will forthwith prepare and, subject to the provisions of paragraph
(d) above, file with the Commission an appropriate supplement or amendment
thereto, and will expeditiously furnish to the Underwriters and dealers a
reasonable number of copies thereof. In the event that the Company and you, as
Representatives of the several Underwriters, agree that the Prospectus should be
amended or supplemented, the Company, if requested by you, will promptly issue a
press release announcing or disclosing the matters to be covered by the proposed
amendment or supplement.
(g) The Company will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the Shares
for offering and sale by the several Underwriters and by dealers under the
securities or Blue Sky laws of such jurisdictions as you may designate and will
file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; provided that
in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Shares, in any jurisdiction where it is not now so
subject.
(h) The Company will make generally available to its security holders
a consolidated earnings statement, which need not be audited, covering a twelve-
month period commencing after the effective date of the Registration Statement
and ending not later than 15 months thereafter, as soon as practicable after the
end of such period, which consolidated earnings statement shall satisfy the
provisions of Section ll(a) of the Act.
(i) During the period of five years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the Company
mailed to stockholders or filed with the Commission, and (ii) from time to time
such other information concerning the Company as you may reasonably request.
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(j) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 12 hereof or by notice given by you terminating this
Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement
shall be terminated by the Underwriters because of any failure or refusal on the
part of the Company or the Selling Stockholders to comply with the terms or
fulfill any of the conditions of this Agreement, the Company agrees to reimburse
the Representatives for all reasonable out-of-pocket expenses (including
reasonable fees and expenses of counsel for the Underwriters) incurred by you in
connection herewith.
(k) The Company will apply the net proceeds from the sale of the
Shares to be sold by it hereunder substantially in accordance with the
description set forth in the Prospectus.
(l) If Rule 430A of the Act is employed, the Company will timely file
the Prospectus pursuant to Rule 424(b) under the Act and will advise you of the
time and manner of such filing.
(m) Except as provided in this Agreement, the Company will not sell,
contract to sell or otherwise dispose of any Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or grant any
options or warrants to purchase Common Stock, for a period of 180 days after
the date of the Prospectus, without the prior written consent of Smith Barney
Inc.; provided, however, that the Company may, without such consent, (i) issue
shares of Common Stock upon the exercise of options issued or issuable pursuant
to its 1996 Stock Option Plan and 1996 Employee Stock Purchase Plan
(collectively, the "Stock Plans"), (ii) grant options and offer to sell shares
of Common Stock to its employees and directors pursuant to the Stock Plans,
(iii) issue shares of Common Stock to its employees in accordance with the
provisions of the Company's Employee Stock Ownership Plan (the "ESOP") and (iv)
issue shares of Common Stock pursuant to outstanding warrants to purchase Common
Stock.
(n) The Company has furnished or will furnish to you "lock-up"
letters, in form and substance satisfactory to you, signed by each of its
current officers and directors and each of its stockholders.
(o) Except as stated in this Agreement and in the Prepricing
Prospectus and Prospectus, the Company has not taken, nor will it take, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
(p) The Company will use its best efforts to have the Common Stock
listed, subject to notice of issuance, on the Nasdaq National Market,
concurrently with the effectiveness of the Registration Statement.
6. Agreements of the Selling Stockholders. Each of the Selling Stock-
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holders severally and not jointly agrees with the several Underwriters as
follows:
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(a) Such Selling Stockholder will cooperate to the extent necessary
to cause the Registration Statement or any post-effective amendment thereto to
become effective at the earliest possible time.
(b) Such Selling Stockholder will pay all Federal and other taxes, if
any, on the transfer or sale of the Shares being sold by the Selling Stockholder
to the Underwriters.
(c) Such Selling Stockholder will do or perform all things reasonably
required to be done or performed by the Selling Stockholder prior to the Closing
Date or any Option Closing Date, as the case may be, to satisfy all conditions
precedent to the delivery of the Shares pursuant to this Agreement.
(d) Such Selling Stockholder has executed or will execute a "lock-up"
letter as provided in Section 5(n) above and will not sell, contract to sell or
otherwise dispose of any Common Stock, except for the sale of Shares to the
Underwriters pursuant to this Agreement and except for the exercise of options
or warrants exercisable for the purchase of Common Stock and the sale of Common
Stock to the Company pursuant to the terms of such warrant, prior to the
expiration of 180 days after the date of the Prospectus, without the prior
written consent of Smith Barney Inc. Notwithstanding the foregoing, each such
Selling Stockholder may transfer any or all of such Selling Stockholder's shares
(i) by gift, will or intestacy, (ii) to such Selling Stockholder's affiliates,
as such term is defined in Rule 405 promulgated under the Act, or (iii) in the
event such Selling Stockholder is an individual, to his or her immediate family
or to a trust the beneficiaries of which are exclusively the undersigned and/or
a member or members of his or her immediate family; provided, however, that in
any such case it shall be a condition to the transfer that the transferee
execute an agreement stating that the transferee is receiving and holding the
shares subject to the provisions of the lock-up letter and there shall be no
further transfer of such shares except in accordance with the lock-up letter.
(e) Except as stated in this Agreement and in the Prepricing
Prospectus and the Prospectus, such Selling Stockholder will not take, directly
or indirectly, any action designed to or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares.
(f) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, within the period of time
referred to in Section 5(f) hereof, of any change in information relating to
such Selling Stockholder that suggests that any statement made in the
Registration Statement or the Prospectus (as then amended or supplemented, if
amended or supplemented) with respect to such information is or may be untrue in
any material respect or that the Registration Statement or Prospectus (as then
amended or supplemented, if amended or supplemented) omits or may omit to state
a material fact or a fact necessary to be stated therein in order to make the
statements therein not misleading in any material respect, or of the necessity
to amend or supplement the Prospectus (as then amended or supplemented, if
amended or supplemented) in order to comply with the Act or any other law.
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7. Representations and Warranties of the Company. The Company represents
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and warrants to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the registration
statement as originally filed or as part of any amendment or supplement thereto,
or filed pursuant to Rule 424 under the Act, complied when so filed in all
material respects with the provisions of the Act. The Commission has not issued
any order preventing or suspending the use of any Prepricing Prospectus.
(b) The Registration Statement in the form in which it became or
becomes effective and also in such form as it may be when any post-effective
amendment thereto shall become effective and the prospectus and any supplement
or amendment thereto when filed with the Commission under Rule 424(b) under the
Act, complied or will comply in all material respects with the provisions of the
Act and did not or will not at any such times contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, except that this
representation and warranty does not apply to statements in or omissions from
the Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by or on behalf
of any Underwriter through you expressly for use therein.
(c) All the outstanding shares of Common Stock of the Company have
been duly authorized and validly issued, are fully paid and nonassessable and
are free of any preemptive or similar rights; the Shares to be issued and sold
by the Company and the Selling Stockholders which are not currently outstanding
have been duly authorized and, when issued and delivered to the Underwriters
against payment therefor in accordance with the terms hereof, will be validly
issued, fully paid and nonassessable and free of any preemptive or similar
rights; and the capital stock of the Company conforms to the description thereof
in the Registration Statement and the Prospectus.
(d) The Company is a corporation duly organized and validly existing
in good standing under the laws of the State of Delaware with full corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus, and is
duly registered and qualified to conduct its business and is in good standing in
each jurisdiction or place where the nature of its properties or the conduct of
its business requires such registration or qualification, except where the
failure so to register or qualify does not have a material adverse effect on the
financial condition, business, properties, net worth or results of operations of
the Company and the Subsidiaries (as hereinafter defined) taken as a whole.
(e) All the Company's subsidiaries (collectively, the "Subsidiaries")
are listed in an exhibit to the Registration Statement. Each Subsidiary is a
corporation duly organized, validly existing and in good standing in the
jurisdiction of its incorporation, with full corporate power and authority to
own, lease and operate its properties and to conduct its business as described
in the Registration Statement and the Prospectus, and is duly registered and
qualified
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to conduct its business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register or
qualify does not have a material adverse effect on the financial condition,
business, properties, net worth or results of operations of such Subsidiary; all
of the outstanding shares of capital stock of each of the Subsidiaries have been
duly authorized and validly issued, are fully paid and nonassessable, and are
owned by the Company directly, or indirectly through one of the other
Subsidiaries, free and clear of any lien, adverse claim, security interest,
equity or other encumbrance.
(f) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened, against the Company or any of the
Subsidiaries, or to which the Company or any of the Subsidiaries, or to which
any of their respective properties is subject, that are required to be described
in the Registration Statement or the Prospectus but are not described as
required, and there are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration Statement that
are not described or filed as required by the Act.
(g) Neither the Company nor any of the Subsidiaries is in violation
of its certificate or articles of incorporation or by-laws, or other
organizational documents, or of any law, ordinance, administrative or
governmental rule or regulation (including requirements of the U.S. Food and
Drug Administration) applicable to the Company or any of the Subsidiaries or of
any decree of any court or governmental agency or body applicable to the Company
or any of the Subsidiaries, except where such violation does not have a material
adverse effect on the financial condition, business, properties, net worth or
results of operations of the Company and the Subsidiaries taken as a whole (a
"Material Adverse Effect"). Neither the Company nor any of its Subsidiaries is
in default in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of indebtedness or
in any agreement, indenture, lease or other instrument to which the Company or
any of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound, except where such default does not have a
Material Adverse Effect.
(h) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement by the Company nor the consummation by
the Company of the transactions contemplated hereby (A) requires any consent,
approval, authorization or other order of or registration or filing with, any
court, regulatory body, administrative agency or other governmental body, agency
or official (except such as may be required for the registration of the Shares
under the Act and the Exchange Act, compliance with the securities or Blue Sky
laws of various jurisdictions and clearance of the public offering of the Shares
by the Underwriters with the rules and regulations of the National Association
of Securities Dealers, Inc. (the "NASD") or conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the certificate
or articles of incorporation or bylaws, or other organizational documents, of
the Company or any of the Subsidiaries or (B) conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, any agreement,
indenture, lease or other instrument to
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which the Company or any of the Subsidiaries is a party or by which any of them
or any of their respective properties may be bound, or violates or will violate
any statute, law, regulation or filing applicable to the Company or any of the
Subsidiaries or any judgment, injunction, order or decree applicable to the
Company or any of the Subsidiaries or any of their respective properties, or
will result in the creation or imposition of any material lien, charge or
encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to the terms of any agreement or instrument to which any
of them is a party or by which any of them may be bound or to which any of the
property or assets of any of them is subject.
(i) The accountants, KPMG Peat Marwick LLP and Arthur Andersen LLP,
who have certified or shall certify the financial statements included in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto) are independent public accountants as required by the Act.
(j) The financial statements, together with related schedules and
notes, included in the Registration Statement and the Prospectus (and any
amendment or supplement thereto), present fairly the consolidated financial
position, results of operations and changes in financial position of the Company
and the Subsidiaries on the basis stated in the Registration Statement at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein; and the other financial and
statistical information and data included in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) are accurately presented
and prepared on a basis consistent with such financial statements and the books
and records of the Company and the Subsidiaries.
(k) The execution and delivery of, and the performance by the Company
of its obligations under, this Agreement have been duly and validly authorized
by the Company, and this Agreement has been duly executed and delivered by the
Company and constitutes the valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as rights
to indemnity and contribution hereunder may be limited by federal or state
securities laws or principles of public policy and subject to the qualification
that the enforceability of the Company's obligations hereunder may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and
other laws relating to or affecting creditors' rights generally and by general
equitable principles.
(l) Except as disclosed in or contemplated by the Registration
Statement and the Prospectus (or any amendment or supplement thereto),
subsequent to the respective dates as of which such information is given in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto), neither the Company nor any of the Subsidiaries has incurred any
liability or obligation, direct or contingent, or entered into any transaction,
not in the ordinary course of business, that is material to the Company and the
Subsidiaries taken as a whole, and there has not been any change in the capital
stock (except for issuances of Common Stock, if any, pursuant to the ESOP or
through the exercise of employee stock options described in the
11
Prospectus), or material increase in the short-term debt or long-term debt, of
the Company or any of the Subsidiaries, or any material adverse change, or any
development involving or which may reasonably be expected to involve, a
prospective material adverse change, in the financial condition, business, net
worth or results of operations of the Company and the Subsidiaries taken as a
whole.
(m) Each of the Company and the Subsidiaries has good and valid title
to all property (real and personal) described in the Prospectus as being owned
by it, free and clear of all material liens, claims, security interests or other
encumbrances except such as are described in the Registration Statement, and the
Prospectus or in a document filed as an exhibit to the Registration Statement
and all the property described in the Prospectus as being held under lease by
each of the Company and the Subsidiaries is held by it under valid, subsisting
and enforceable leases.
(n) The Company has not distributed and, prior to the later to occur
of (i) the Closing Date and (ii) completion of the distribution of the Shares,
will not distribute any offering material in connection with the offering and
sale of the Shares other than the Registration Statement, the Prepricing
Prospectus, the Prospectus or other materials, if any, permitted by the Act.
(o) The Company and each of the Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits") as are necessary to own its respective properties and to
conduct its business in the manner described in the Prospectus, subject to such
qualifications as may be set forth in the Prospectus, except where the failure
to have any such permit would not, singly or in the aggregate, have a Material
Adverse Effect; the Company and each of the Subsidiaries has fulfilled and
performed all its obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other impairment of the rights of the
holder of any such permit, subject in each case to such qualification as may be
set forth in the Prospectus, except where the failure to fulfill or perform such
obligations or the revocation, termination or impairment of such rights would
not, singly or in the aggregate, have a Material Adverse Effect; and, except as
described in the Prospectus, none of such permits contains any restriction that
is materially burdensome to the Company or any of the Subsidiaries.
(p) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
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.
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(q) To the Company's knowledge, neither the Company nor any of its
Subsidiaries nor any employee or agent of the Company or any Subsidiary has made
any payment of funds of the Company or any Subsidiary or received or retained
any funds in violation of any law, rule or regulation, which payment, receipt or
retention of funds is of a character required to be disclosed in the Prospectus.
(r) The Company and each of the Subsidiaries have filed all tax
returns required to be filed, which returns are complete and correct in all
material respects, and neither the Company nor any Subsidiary is in default in
the payment of any taxes which were payable pursuant to said returns or any
assessments with respect thereto, except for the assessments contested in good
faith for which adequate reserves have been provided to the extent required by
generally accepted accounting principles.
(s) No holder of any security of the Company has any right to require
registration of shares of Common Stock or any other security of the Company
because of the filing of the registration statement or consummation of the
transactions contemplated by this Agreement, other than those rights which have
been waived or satisfied.
(t) The Company and the Subsidiaries own or possess adequate licenses
or other rights to use all patents, trademarks, trademark registrations, service
marks, service mark registrations, trade names, copyrights, licenses,
inventions, trade secrets and rights described in the Prospectus as being owned
by them or any of them or necessary for the conduct of their respective
businesses, and the Company is not aware of any claim to the contrary or any
challenge by any other person to the rights of the Company and the Subsidiaries
with respect to the foregoing, which claim or challenge would have a Material
Adverse Effect.
(u) The Company is not now, and after sale of the Shares to be sold
by it hereunder and application of the net proceeds from such sale as described
in the Prospectus under the caption "Use of Proceeds" will not be, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(v) To the extent applicable, the Company has complied with all
provisions of Florida Statutes, ' 517.075, relating to issuers doing business
with Cuba.
8. Representations and Warranties of the Selling Stockholders. Each
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Selling Stockholder severally and not jointly represents and warrants to each
Underwriter that:
(a) Such Selling Stockholder, other than a Warrantholder, now has, and
on any Option Closing Date such Selling Stockholder, including each
Warrantholder, will have, good and valid title to the Shares to be sold by such
Selling Stockholder, free and clear of any lien, claim, security interest or
other encumbrance, including, without limitation, any restriction on transfer.
Such Warrantholder now has good and valid title to the warrant exercisable for
the Shares to be sold by such Warrantholder, free and clear of any lien, claim,
security interest or other encumbrance, including, without limitation, any
restriction on transfer.
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(b) Such Selling Stockholder now has, and on any Option Closing Date
will have, full legal right, power and authorization to sell, assign transfer
and deliver such Shares in the manner provided in this Agreement, and upon
delivery of and payment for such Shares hereunder, the several Underwriters will
acquire good and valid title to such Shares free and clear of any lien, claim,
security interest, or other encumbrance, assuming that such Underwriters are
bona fide purchasers within the meaning of the Uniform Commercial Code.
(c) This Agreement and the Custody Agreement have been duly
authorized, executed and delivered by or on behalf of such Selling Stockholder
and are the valid and binding agreements of such Selling Stockholder enforceable
against such Selling Stockholder in accordance with their terms, except as
rights to indemnity and contribution hereunder which may be limited by federal
or state securities laws or principles of public policy and subject to the
qualification that the enforceability of such Selling Stockholder's obligations
hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance,
insolvency, reorganization, moratorium, and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(d) Neither the execution and delivery of this Agreement or the
Custody Agreement by or on behalf of such Selling Stockholder nor the
consummation of the transactions herein or therein contemplated by or on behalf
of such Selling Stockholder requires any consent, approval, authorization or
order of, or filing or registration with, any court, regulatory body,
administrative agency or other governmental body, agency or official (except
such as may be required under the Act, under the Exchange Act, under state
securities or Blue Sky laws governing the purchase and distribution of the
Shares or under the rules and regulations of the NASD), or conflicts or will
conflict with or constitutes or will constitute a breach of, or default under,
or violates or will violate, any material agreement, indenture or other
instrument to which such Selling Stockholder is a party or by which such Selling
Stockholder is or may be bound or to which any of such Selling Stockholder's
property or assets is subject, or any statute, law, rule or regulation
applicable to such Selling Stockholder or to any property or assets of such
Selling Stockholder or any ruling, judgment, injunction, order or decree
applicable to such Selling Stockholder or any property or assets of such Selling
Stockholder.
(e) Such parts of the Registration Statement and the Prospectus,
insofar as they relate to such Selling Stockholder, and specifically consisting
of the information contained under the captions "CERTAIN TRANSACTIONS" and
"PRINCIPAL AND SELLING STOCKHOLDERS," do not and will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
(f) Without having undertaken to determine independently the accuracy
or completeness of the information contained in the Registration Statement
(except insofar as it relates to such Selling Stockholder), such Selling
Stockholder does not have any knowledge or any reason to believe that the
Registration Statement or the Prospectus (or any amendment or supplement
thereto) contains 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 not misleading.
14
(g) The representations and warranties of such Selling Stockholder in
the Custody Agreement are, and on the Closing Date and any Option Closing Date
will be, true and correct.
(h) Such Selling Stockholder has not taken, directly or indirectly,
any action designed to or that might reasonably be expected to cause or result
in stabilization or manipulation of the price of the Common Stock to facilitate
the sale or resale of the Shares, except for the lock-up arrangements described
in the Prospectus.
9. Indemnification and Contribution.
--------------------------------
(a) The Company and each Selling Stockholder, jointly and severally,
agree to indemnify and hold harmless each of you and each other Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act from and against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any Prepricing Prospectus or in
the Registration Statement or the Prospectus or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information furnished in
writing to the Company by or on behalf of any Underwriter through you expressly
for use in connection therewith; provided, however, that (i) the indemnification
contained in this paragraph (a) with respect to any Prepricing Prospectus shall
not inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) on account of any such loss, claim, damage,
liability or expense arising from the sale of the Shares by such Underwriter to
any person if a copy of the Prospectus shall not have been delivered or sent to
such person within the time required by the Act and the regulations thereunder,
and the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in such Prepricing Prospectus was
corrected in the Prospectus, provided that the Company has delivered the
Prospectus to the several Underwriters in requisite quantity on a timely basis
to permit such delivery or sending and (ii) the liability of a Selling
Stockholder pursuant to this paragraph (a) shall not exceed the lesser of (A)
the proceeds (net of the applicable underwriting discount) received by such
Selling Stockholder for the Shares sold to the Underwriters pursuant to this
Agreement or (B) such Selling Stockholder's pro rata share of the total losses,
claims, damages, liabilities or expenses incurred by the Underwriters pursuant
to this Agreement based upon the number of Shares sold by such Selling
Stockholder to the Underwriters as a percentage of the total number of Shares
sold to the Underwriters. The foregoing indemnity agreement shall be in addition
to any liability which the Company or any Selling Stockholder may otherwise
have. No Selling Stockholder shall be required to provide indemnification
hereunder until the Underwriter or controlling person seeking indemnification
shall have first made written demand for payment on the Company with respect to
any such loss,
15
claim, damage, liability or expense and the Company shall have either rejected
such demand or failed to make such requested payment within sixty (60) days
after receipt thereof. In the event the Company rejects any such demand or
fails to make any such requested payment, the Underwriter or controlling person
seeking indemnification agrees to concurrently make demand for indemnification
against all Selling Stockholders; provided that such Underwriter or controlling
person shall have sole discretion as to whether to take any further action
against a Selling Stockholder and no failure by an Underwriter or controlling
person to take further action against a Selling Stockholder shall prejudice such
Underwriter's or controlling person's rights with respect to other Selling
Stockholders.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company or any Selling Stockholder, such
Underwriter or such controlling person shall promptly notify the parties against
whom indemnification is being sought (the "indemnifying parties"), and such
indemnifying parties shall assume the defense thereof, including the employment
of counsel and payment of all fees and expenses. Such Underwriter or any such
controlling person shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Underwriter or
such controlling person unless (i) the indemnifying parties have agreed in
writing to pay such fees and expenses, (ii) the indemnifying parties have failed
to assume the defense and employ counsel, or (iii) the named parties to any such
action, suit or proceeding (including any impleaded parties) include both such
Underwriter or such controlling person and the indemnifying parties and such
Underwriter or such controlling person shall have been advised by its counsel in
writing that representation of such indemnified party and any indemnifying party
by the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same counsel has
been proposed) due to actual or potential differing interests between them (in
which case the indemnifying party shall not have the right to assume the defense
of such action, suit or proceeding on behalf of such Underwriter or such
controlling person). It is understood, however, that the indemnifying parties
shall, in connection with any one such action, suit or proceeding or separate
but substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for all such
Underwriters and controlling persons not having actual or potential differing
interests with you or among themselves, which firm shall be designated in
writing by Smith Barney Inc., and that all such fees and expenses shall be
reimbursed as they are incurred. The indemnifying parties shall not be liable
for any settlement of any such action, suit or proceeding effected without their
written consent, but if settled with such written consent, or if there be a
final judgment for the plaintiff in any such action, suit or proceeding, the
indemnifying parties agree to indemnify and hold harmless any Underwriter, to
the extent provided in the preceding paragraph, and any such controlling person
from and against any loss, claim, damage, liability or expense by reason of such
settlement or judgment.
16
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who signed the
Registration Statement, each Selling Stockholder, and any person who controls
the Company and the Selling Stockholders within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act to the same extent as the foregoing
indemnity from the Company and the Selling Stockholders to each Underwriter,
provided, however, that each Underwriter will be liable in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission has been made in the Registration
Statement, the Prospectus or any Prepricing Prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with information
furnished in writing by or on behalf of such Underwriter through you expressly
for use in the Registration Statement, the Prospectus or any Prepricing
Prospectus, or any amendment or supplement thereto. If any action, suit or
proceeding shall be brought against the Company, any of its directors, any such
officer, any Selling Stockholder, or any such controlling person based on the
Registration Statement, the Prospectus or any Prepricing Prospectus, or any
amendment or supplement thereto, and in respect of which indemnity may be sought
against any Underwriter pursuant to this paragraph (c), such Underwriter shall
have the rights and duties given to the Company by paragraph (b) above (except
that if the Company shall have assumed the defense thereof such Underwriter
shall not be required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at such Underwriter's expense), and the Company, its directors, any
such officer, the Selling Stockholder, and any such controlling person shall
have the rights and duties given to the Underwriters by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability which any
Underwriter may otherwise have.
(d) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other hand from the offering of the Shares, or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other in connection with the statements
or omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company and the Selling Stockholders bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus; provided that, in the
event that the Underwriters shall have purchased any Additional Shares
hereunder, any determination of the relative benefits received by the Company,
the Selling Stockholders or the Underwriters from the offering of the Shares
shall include the net proceeds (before deducting
17
expenses) received by the Company and the Selling Stockholders, and the
underwriting discounts and commissions received by the Underwriters, from the
sale of such Additional Shares, in each case computed on the basis of the
respective amounts set forth in the notes to the table on the cover page of the
Prospectus. The relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Selling Stockholders on
the one hand or by the Underwriters on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Notwithstanding the provisions of this subsection
(d), no Selling Stockholder shall be required to contribute any amount in excess
of the product of the number of Shares sold by such Selling Stockholder and the
initial public offering price of the Shares as set forth in the Prospectus.
(e) The Company, the Selling Stockholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
9 were determined by a pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating any claim or defending any such action,
suit or proceeding. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price of the Shares underwritten by it and distributed to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to the respective numbers of Firm Shares set
forth opposite their names in Schedule II hereto (or such numbers of Firm Shares
increased as set forth in Section 12 hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and
18
the representations and warranties of the Company and the Selling Stockholders
set forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter, the Company, its directors or officers
or the Selling Stockholders or any person controlling the Company, (ii) accep-
tance of any Shares and payment therefor hereunder, and (iii) any termination
of this Agreement. A successor to any Underwriter or any person controlling any
Underwriter, or to the Company, its directors or officers, or any person
controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 9.
10. Conditions of Underwriters' Obligations. The several obligations of
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the Underwriters to purchase the Firm Shares hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, the
Registration Statement or such post-effective amendment shall have become
effective not later than 5:30 P.M., New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by you, and all
filings, if any, required by Rules 424 and 430A under the Act shall have been
timely made; no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Company or any Underwriter,
threatened by the Commission, and any request of the Commission for additional
information (to be included in the registration statement or the prospectus or
otherwise) shall have been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, in or affecting the financial condition, business, properties, net
worth, or results of operations of the Company and the Subsidiaries, taken as a
whole, not contemplated by the Prospectus, which in your opinion, as
Representatives of the several Underwriters, would materially adversely affect
the market for the Shares, or (ii) any event or development relating to or
involving the Company or any officer or director of the Company or any Selling
Stockholder which makes any material statement made in the Prospectus untrue or
which, in the opinion of the Company and its counsel or the Underwriters and
their counsel, requires the making of any addition to or change in the
Prospectus in order to state a material fact required by the Act or any other
law to be stated therein or necessary in order to make the statements therein
not misleading, if amending or supplementing the Prospectus to reflect such
event or development would, in your opinion, as Representatives of the several
Underwriters, materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date, with respect to
subparagraphs (i) through (xii) below, an opinion of Hale and Dorr, counsel for
the Company, and you shall have received on the Option Closing Date, if any,
with respect to subparagraphs (xiii) through (xvi) below, an opinion of
respective counsel for the Selling Stockholders, dated the Closing Date
19
or the Option Closing Date, as the case may be, and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) The Company is a corporation duly incorporated and validly
existing in corporate good standing under the laws of the State of Delaware
with full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement thereto);
(ii) The authorized and outstanding capital stock of the
Company is as set forth under the caption "Capitalization" in the
Prospectus (except for issuances subsequent to the date of the Prospectus
of Common Stock, if any, pursuant to the ESOP or through the exercise of
employee stock options described in the Prospectus); and statements
regarding the authorized capital stock of the Company contained in the
Prospectus under the caption "Description of Capital Stock," insofar as
such statements constitute matters of law or legal conclusions or
constitute a summary of the terms of the Company's Certificate of
Incorporation relating to such capital stock, have been reviewed by such
counsel and are correct in all material respects;
(iii) All the shares of capital stock of the Company outstanding
prior to the issuance of the Shares to be issued and sold by the Company
hereunder, have been duly authorized and validly issued, and are fully paid
and nonassessable;
(iv) The Shares to be issued and sold to the Underwriters by
the Company hereunder have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with
the terms hereof, will be validly issued, fully paid and nonassessable and,
to such counsel's knowledge, free of any preemptive or similar rights that
entitle or will entitle any person to acquire any Shares upon the issuance
thereof by the Company;
(v) The form of certificates for the Shares, assuming they are
in the form filed with the Commission, conforms to the requirements of the
Delaware General Corporation Law;
(vi) The Registration Statement and all post-effective
amendments, if any, have become effective under the Act and, to the
knowledge of such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose are pending before or contemplated by the Commission; and any
required filing of the Prospectus pursuant to Rule 424(b) has been made in
accordance with Rule 424(b);
(vii) The Company has corporate power and authority to enter
into this Agreement and to issue, sell and deliver the Shares to be sold by
it to the Underwriters as
20
provided herein, and this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) Neither the offer, sale or delivery of the Shares, the
execution or delivery of this Agreement, compliance by the Company with the
provisions hereof, nor consummation by the Company of the transactions
contemplated hereby conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, the certificate of
incorporation or bylaws of the Company or any agreement, indenture, lease
or other instrument to which the Company or any of the Subsidiaries is a
party or by which any of them or any of their respective properties is
bound that is an exhibit to the Registration Statement or will result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company, nor will any such action result in any
violation of any existing law, regulation, ruling (assuming compliance with
all applicable state securities and Blue Sky laws) known to such counsel
and applicable to the Company or its properties, or any judgment,
injunction, order or decree known to such counsel and specifically naming
the Company or any of its properties;
(ix) No consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency, or official is required on the
part of the Company (except as have been obtained under the Act and the
Exchange Act, such as may be required under state securities or Blue Sky
laws governing the purchase and distribution of the Shares or such as may
be required by the NASD) for the issuance and sale of the Shares to the
Underwriters as contemplated by this Agreement;
(x) The Registration Statement and the Prospectus and any
supplements or amendments thereto (except for the financial statements and
the notes thereto, the schedules and other financial and statistical data
and the information relating to the Underwriters or the method of
distribution of the Shares by the Underwriters included therein, as to
which such counsel need not express any opinion) comply as to form in all
material respects with the requirements of the Act;
(xi) To the knowledge of such counsel, (A) other than as
described or contemplated in the Prospectus (or any supplement thereto),
there are no legal or governmental proceedings pending against the Company
or any of the Subsidiaries, or to which the Company or any of the
Subsidiaries, or any of their property, is subject, which are required to
be described in the Registration Statement or Prospectus (or any amendment
or supplement thereto) and (B) there are no agreements, contracts,
indentures, leases or other instruments, that are required to be described
in the Registration Statement or the Prospectus (or any amendment or
supplement thereto) or to be filed as an exhibit to the Registration
Statement that are not described or filed as required, as the case may be;
21
(xii) The statements under the captions "Risk Factors--Shares
Eligible for Future Sale; Registration Rights," "Risk Factors--Antitakeover
Provisions," "Description of Capital Stock" and "Shares Eligible for Future
Sale" and in paragraph 5 under the caption "Underwriting" in the
Registration Statement and Prospectus, insofar as such statements
constitute matters of law or legal conclusions, have been reviewed by such
counsel and are correct in all material respects;
(xiii) To the knowledge of such counsel, this Agreement and the
Custody Agreement have each been duly executed and delivered by or on
behalf of each of the Selling Stockholders. To the knowledge of such
counsel, the Custody Agreement is a valid and binding agreement of each
Selling Stockholder enforceable against each Selling Stockholder in
accordance with its terms;
(xiv) To the knowledge of such counsel, each Selling Stockholder
has full legal right, power and authorization to sell, assign, transfer and
deliver to the Shares which such Selling Stockholder has agreed to sell
pursuant to this Agreement;
(xv) To the knowledge of such counsel, the execution and delivery
of this Agreement and the Custody Agreement by or on behalf of the Selling
Stockholders and the consummation of the transactions contemplated hereby
and thereby will not conflict with, violate, result in a breach of or
constitute a default under the terms or provisions of any agreement,
indenture, mortgage or other instrument to which any Selling Stockholder is
a party or by which any of them or any of their assets or property is
bound, or any law, rule, or regulation applicable to any Selling
Stockholder or to any of the property or assets of any Selling Stockholder
or any court order or decree applicable to the Selling Stockholder or any
property or assets of the Selling Stockholder, except for such approvals as
may be required under the federal or state securities laws, or the
securities laws of any applicable jurisdiction, or under the rules and
regulations of the NASD; and
(xvi) Upon delivery of the Shares pursuant to this Agreement and
payment therefor as contemplated herein, with all necessary endorsements,
and assuming the Underwriters (a) have possession of the Shares; (b) are
acquiring the Shares in good faith without notice of any adverse claim; and
(c) have not been a party to any fraud or illegality affecting the Shares,
the Underwriters will acquire all the rights in the Shares that the Selling
Stockholder has or has actual authority to convey, and the Underwriters'
interests in the Shares will be free of any adverse claim, except as may be
asserted by a person claiming by, through or under the Underwriters.
In connection with the preparation of the Registration Statement and the
Prospectus, Hale and Dorr has participated in conferences with officers and
representatives of the Company, counsel for the Underwriters and the independent
accountants of the Company, at which conferences such counsel made inquiries of
such persons and others and discussed the contents of the Registration Statement
and the Prospectus. While the limitations inherent in the independent
verification of factual matters and the character of determinations involved in
the registration process are such that such counsel is not passing upon and does
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, subject to
the foregoing and based on such participation, inquiries and discussions, no
facts have come to the attention of such counsel that has caused it
22
to believe that the Registration Statement (as amended by any post-effective
amendment filed prior to the Closing Date or the Option Closing Date, as the
case may be) at the time the Registration Statement (or such post-effective
amendment) became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as of its
date, and as of the Closing Date or the Option Closing Date, as the case may be,
contained any untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no opinion with respect to the financial
statements and the notes thereto, the schedules and other financial and
statistical data and the information relating to the Underwriters or the method
of distribution of the Shares by the Underwriters included in the Registration
Statement or the Prospectus).
In rendering their opinion as aforesaid, counsel may rely upon an opinion
or opinions, each dated the Closing Date, of other counsel retained by them or
the Company as to laws of any jurisdiction other than the United States, The
Commonwealth of Massachusetts or the General Corporation Law statute of the
State of Delaware, provided that (1) each such counsel is acceptable to the
Representatives, (2) such reliance is expressly authorized by each opinion so
relied upon and a copy of each such opinion is delivered to the Representatives
and is, in form and substance satisfactory to them and their counsel, and (3)
counsel shall state in their opinion that they believe that they and the
Underwriters are justified in relying thereon.
(d) You shall have received on the Closing Date, an opinion of
Cameron & Mittleman, counsel for the Company, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, to the effect
that:
(i) Each of the Subsidiaries is a corporation duly organized and
validly existing in good standing under the laws of the jurisdiction of its
organization, with full corporate power and authority to own, lease, and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto). The Company and each of the Subsidiaries is duly qualified to
conduct its business and in corporate good standing in each jurisdiction or
place where the nature of its properties or the conduct of its business
requires such qualification, except where the failure so to qualify does
not have a material adverse effect on the financial condition, business,
properties, net worth or results of operations of the Company and the
Subsidiaries taken as a whole. The Company and each of the Subsidiaries has
full corporate power and authority, and, to the knowledge of such counsel,
all necessary governmental authorizations, approvals, orders, licenses,
certificates, franchises and permits of and from all governmental
regulatory officials and bodies (except where the failure so to have any
such authorizations, approvals, orders, licenses, certificates, franchises
or permits, individually or in the aggregate, would not have a material
adverse effect on the business, properties, operations or financial
condition of the Company and the Subsidiaries taken as a whole), to own
their respective properties
23
and to conduct their respective businesses as now being conducted, as
described in the Prospectus;
(ii) All the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid
and nonassessable, and are owned by the Company directly, or indirectly
through one of the other Subsidiaries. Except as disclosed in the
Prospectus or set forth on Schedule III hereto, the Company owns of record,
directly or indirectly, all the outstanding shares of capital stock of each
of the Subsidiaries free and clear of any lien, adverse claim, security
interest, equity, or other encumbrance;
(iii) Other than as described or contemplated in the Prospectus
(or any supplement thereto), to the knowledge of such counsel, there are no
legal or governmental proceedings pending or threatened against the Company
or any of the Subsidiaries, or to which the Company or any of the
Subsidiaries, or any of their property, is subject, which are required to
be described in the Registration Statement or Prospectus (or any amendment
or supplement thereto);
(iv) To the knowledge of such counsel, there are no agreements,
contracts, indentures, leases or other instruments, that are required to be
described in the Registration Statement or the Prospectus (or any amendment
or supplement thereto) or to be filed as an exhibit to the Registration
Statement that are not described or filed as required, as the case may be;
(v) To the knowledge of such counsel, the Company or one of its
Subsidiaries has proprietary rights in all patents, trademarks, trademark
registrations, service marks, service mark registrations, trade names,
copyrights, licenses, inventions, trade secrets and rights described in the
Prospectus as being owned by them or any of them or necessary for the
conduct of their respective businesses, and such counsel is not aware of
any claim to the contrary or any challenge by any other person to the
rights of the Company and the Subsidiaries with respect to the foregoing
except as set forth on Schedule III hereto;
(vi) To the knowledge of such counsel, neither the Company nor
any of the Subsidiaries is in material violation of any law, ordinance,
administrative or governmental rule or regulation applicable to the Company
or any of the Subsidiaries or of any decree of any court or governmental
agency or body having jurisdiction over the Company or any of the
Subsidiaries;
(vii) Except as described in the Prospectus, there are no
outstanding options, warrants or other rights calling for the issuance of,
and such counsel does not know of any commitment, plan or arrangement to
issue, any shares of capital stock of the Company or any security
convertible into or exchangeable or exercisable for capital stock of the
Company;
24
(viii) Except as described in the Prospectus, there is no holder
of any security of the Company or any other person who has the right,
contractual or otherwise, to cause the Company to sell or otherwise issue
to them, or to permit them to underwrite the sale of, the Shares or the
right to have any Common Stock or other securities of the Company included
in the registration statement or the right, as a result of the filing of
the registration statement, to require registration under the Act of any
shares of Common Stock or other securities of the Company;
(ix) To the knowledge of such counsel, neither the Company nor
any of the Subsidiaries is in violation of its respective certificate or
articles of incorporation or bylaws or is in default in the performance of
any material obligation, agreement or condition contained in any bond,
debenture, note or other evidence of indebtedness, except as may be
disclosed in the Prospectus; and
(x) Neither the offer, sale or delivery of the Shares, the
execution or delivery of this Agreement, compliance by the Company with the
provisions hereof, nor consummation by the Company of the transactions
contemplated hereby conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, the certificate of
incorporation or bylaws of the Company or any of the Subsidiaries or any
agreement, indenture, lease or other instrument to which the Company or any
of its Subsidiaries is a party or by which any of them or any of their
respective properties is bound that is an exhibit to the Registration
Statement or will result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of its
Subsidiaries, nor will any such action result in the violation of any
existing law, regulation, ruling (assuming compliance with all applicable
federal and state securities and Blue Sky laws) known to such counsel and
applicable to the Company, the Subsidiaries or any of their respective
properties, or any judgment, injunction, order or decree known to such
counsel and applicable to the Company, the Subsidiaries or any of their
respective properties.
(e) You shall have received on the Closing Date an opinion of
Goodwin, Procter & Hoar LLP, counsel for the Underwriters, dated the Closing
Date and addressed to you, as Representatives of the several Underwriters, with
respect to the matters referred to in clauses (iv) (with the exception of those
matters addressed following the word "nonassessable"), (vi), (vii) (with the
exception of those matters addressed prior to the words "this Agreement has been
duly authorized"), (xi) and the paragraph following clause (xvii) of the
foregoing paragraph (c) and such other related matters as you may request.
(f) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date from KPMG Peat Marwick LLP, independent certified public
accountants, substantially in the forms heretofore approved by you.
25
(g) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there shall
not have been any change in the capital stock of the Company (except for
issuances subsequent to the date of the Prospectus of Common Stock, if any,
pursuant to the ESOP or through the exercise of employee stock options described
in the Prospectus) nor any material increase in the short-term or long-term debt
of the Company (other than in the ordinary course of business) from that set
forth or contemplated in the Registration Statement or the Prospectus (or any
amendment or supplement thereto); (iii) there shall not have been, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus (or any amendment or supplement thereto), except as may
otherwise be stated in the Registration Statement and Prospectus (or any
amendment or supplement thereto), any material adverse change in the financial
condition, business, properties, net worth or results of operations of the
Company and the Subsidiaries taken as a whole; (iv) the Company and the
Subsidiaries shall not have any liabilities or obligations, direct or contingent
(whether or not in the ordinary course of business), that are material to the
Company and the Subsidiaries, taken as a whole, other than those reflected in or
contemplated by the Registration Statement or the Prospectus (or any amendment
or supplement thereto); and (v) all the representations and warranties of the
Company contained in this Agreement shall be true and correct on and as of the
date hereof and on and as of the Closing Date as if made on and as of the
Closing Date, and you shall have received a certificate, dated the Closing Date
and signed by the chief executive officer and the chief financial officer of the
Company (or such other officers as are acceptable to you), to the effect set
forth in this Section 10(g) and in Section 10(h) hereof.
(h) The Company shall not have failed at or prior to the Closing Date
to have performed or complied with any of its agreements herein contained and
required to be performed or complied with by it hereunder at or prior to the
Closing Date.
(i) All the representations and warranties of the Selling
Stockholders contained in this Agreement shall be true and correct on and as of
the date hereof and on and as of the Option Closing Date as if made on and as of
the Option Closing Date, and you shall have received a certificate, dated the
Option Closing Date and signed by or on behalf of the Selling Stockholders to
the effect set forth in this Section 10(i) and in Section 10(j) hereof.
(j) The Selling Stockholders shall not have failed at or prior to the
Option Closing Date to have performed or complied with any of their agreements
herein contained and required to be performed or complied with by them hereunder
at or prior to the Option Closing Date.
(k) The Shares shall have been listed or approved for listing upon
notice of issuance on the Nasdaq National Market.
(l) The Sellers shall have furnished or caused to be furnished to you
such further certificates and documents as you shall have reasonably requested.
26
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you and your counsel.
Any certificate or document signed by any officer of the Company or any
Attorney-in-Fact or any Selling Stockholder and delivered to you, as
Representatives of the Underwriters, or to counsel for the Underwriters, shall
be deemed a representation and warranty by the Company, or the particular
Selling Stockholder, as the case may be, to each Underwriter as to the
statements made therein to the extent provided in the appointment of the
Attorney-in-Fact.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of any Option Closing
Date of the conditions set forth in this Section 10, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in paragraphs (c) through (i) shall be dated the Option
Closing Date in question and the opinions called for by paragraphs (c), (d) and
(e) shall be revised to reflect the sale of Additional Shares.
11. Expenses. The Company agrees to pay the following costs and
--------
expenses and all other costs and expenses incident to the performance by the
Sellers of their obligations hereunder: (i) the preparation, printing or
reproduction, and filing with the Commission of the Registration Statement
(including financial statements and exhibits thereto), each Prepricing
Prospectus, the Prospectus, and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, each Prepricing Prospectus, the Prospectus, and all
amendments or supplements to any of them as may be reasonably requested for use
in connection with the offering and sale of the Shares; (iii) the preparation,
printing, authentication, issuance and delivery of certificates for the Shares,
including any stamp taxes in connection with the original issuance and sale of
the Shares; (iv) the printing (or reproduction) and delivery of this Agreement,
the preliminary and supplemental Blue Sky Memoranda and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering
of the Shares; (v) the registration of the Shares under the Exchange Act and the
listing of the Shares on the Nasdaq National Market; (vi) the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of the several states as provided in Section 5(g) hereof (including the
reasonable fees, expenses and disbursements of counsel for the Underwriters
relating to the preparation, printing or reproduction, and delivery of the
preliminary and supplemental Blue Sky Memoranda and such registration and
qualification); (vii) the filing fees in connection with any filings required to
be made with the National Association of Securities Dealers, Inc.; (viii) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers of
the Shares; and (ix) the fees and expenses of the Company's accountants and the
fees and expenses of counsel (including local and special counsel) for the
Company and the Selling Stockholders. Any transfer taxes imposed on the
issuance or sale of the Shares to the several Underwriters will be paid by the
Sellers pro rata.
27
12. Effective Date of Agreement. This Agreement shall become effective:
---------------------------
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
Registration Statement or a post-effective amendment thereto to be declared
effective before the offering of the Shares may commence, when notification of
the effectiveness of the Registration Statement or such post-effective amendment
has been released by the Commission. Until such time as this Agreement shall
have become effective, it may be terminated by the Company, by notifying you, or
by you, as Representatives of the several Underwriters, by notifying the Company
and the Selling Stockholders.
If any one or more of the Underwriters shall fail or refuse to purchase
Shares which it or they are obligated to purchase hereunder on the Closing Date,
and the aggregate number of Shares which such defaulting Underwriter or
Underwriters are obligated but fail or refuse to purchase is not more than one-
tenth of the aggregate number of Shares which the Underwriters are obligated to
purchase on the Closing Date, each non-defaulting Underwriter shall be
obligated, severally, in the proportion which the number of Firm Shares set
forth opposite its name in Schedule II hereto bears to the aggregate number of
Firm Shares set forth opposite the names of all non-defaulting Underwriters or
in such other proportion as you may specify in accordance with Section 20 of the
Master Agreement Among Underwriters of Smith Barney Inc., to purchase the Shares
which such defaulting Underwriter or Underwriters are obligated, but fail or
refuse, to purchase. If any one or more of the Underwriters shall fail or
refuse to purchase Shares which it or they are obligated to purchase on the
Closing Date and the aggregate number of Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Shares which
the Underwriters are obligated to purchase on the Closing Date and arrangements
satisfactory to you and the Company for the purchase of such Shares by one or
more non-defaulting Underwriters or other party or parties approved by you and
the Company are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any such default of any such Underwriter under this Agreement. The
term "Underwriter" as used in this Agreement includes, for all purposes of this
Agreement, any party not listed in Schedule II hereto who, with your approval
and the approval of the Company, purchases Shares which a defaulting Underwriter
is obligated, but fails or refuses, to purchase.
Any notice under this Section 12 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
13. Termination of Agreement. This Agreement shall be subject to
------------------------
termination in your absolute discretion, without liability on the part of any
Underwriter to the Company or any Selling Stockholder, by notice to the Company,
if prior to the Closing Date or any Option Closing Date
28
(if different from the Closing Date and then only as to the Additional Shares),
as the case may be, (i) trading in securities generally on the New York Stock
Exchange, American Stock Exchange or the Nasdaq National Market shall have been
suspended or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either federal or state
authorities, or (iii) there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity, crisis or material
change in political, financial or economic conditions, the effect of which on
the financial markets of the United States is such as to make it, in your
reasonable judgment, impracticable or inadvisable to commence or continue the
offering of the Shares at the offering price to the public set forth on the
cover page of the Prospectus or to enforce contracts for the resale of the
Shares by the Underwriters. Notice of such termination may be given to the
Company by telegram, telecopy or telephone and shall be subsequently confirmed
by letter.
14. Information Furnished by the Underwriters. The statements set forth
-----------------------------------------
in the last paragraph on the cover page, the stabilization legend on the inside
cover page, and the statements in the first and third paragraphs under the
caption "Underwriting" in any Prepricing Prospectus and in the Prospectus,
constitute the only information furnished by or on behalf of the Underwriters
through you as such information is referred to in Sections 7(b) and 9 hereof.
15. Termination of Selling Stockholders' Obligations. Notwithstanding any
------------------------------------------------
other provision of this Agreement, this Agreement shall terminate as to any
Selling Stockholder, and such Selling Stockholder shall have no further
obligations hereunder, if the over-allotment option granted under Section 2
hereof is not exercised in accordance with such Section in respect of such
Selling Stockholder's Additional Shares. Any such termination shall be without
liability of the Selling Stockholders to the Underwriters and without liability
of the Underwriters to the Selling Stockholders; provided, however, that in the
event of any such termination, the Selling Stockholders, severally and not
jointly, agree to indemnify and hold harmless the Underwriters from all costs or
expenses incident to the performance of the obligations of the Selling
Stockholders under this Agreement, including any costs and expenses payable by
the Selling Stockholders pursuant to Section 11 hereof.
16. Miscellaneous. Except as otherwise provided in Sections 5, 12 and 13
-------------
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company, at the office of the
Company at 260 Lake Road, Dayville, Connecticut 06241, Attention: Norman A.
Cloutier, Chairman of the Board; or (ii) if to the Selling Stockholders, in care
of the Custodian at the Company's office address set forth above; or (iii) if to
you, as Representatives of the several Underwriters, care of Smith Barney Inc.,
388 Greenwich Street, New York, New York 10013, Attention: Manager, Investment
Banking Division.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Company, its directors and officers, and the other controlling
persons referred to in Section 9 hereof and their respective successors and
assigns, to the extent provided herein, and no other person shall acquire or
have any right under or by virtue of this Agreement. Neither the term
29
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from any Underwriter of any of the Shares in his
status as such purchaser.
17. Applicable Law; Counterparts. This Agreement shall be governed by and
----------------------------
construed in accordance with the laws of The Commonwealth of Massachusetts
applicable to contracts made and to be performed within The Commonwealth of
Massachusetts.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
30
Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
UNITED NATURAL FOODS, INC.
By
-----------------------------------
Chairman of the Board
Each of the Selling Stockholders
named in Schedule I hereto
By
-----------------------------------
Attorney-in-Fact
By
-----------------------------------
Attorney-in-Fact
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule II
hereto.
SMITH BARNEY INC.
OPPENHEIMER & CO., INC.
ROBERTSON, STEPHENS & COMPANY LLC
As Representatives of the Several Underwriters
By SMITH BARNEY INC.
By
--------------------------------------
Managing Director
31
SCHEDULE I
UNITED NATURAL FOODS, INC.
Number of
Selling Stockholders Additional Shares
-------------------- -----------------
Funk Family 1992 Revocable Living Trust 60,000
Triumph-Connecticut Limited Partnership 375,000
-------
Total . . . . . 435,000
=======
32
SCHEDULE II
UNITED NATURAL FOODS, INC.
Number of
Underwriter Firm Shares
- ----------- -----------
Smith Barney Inc....................
Oppenheimer & Co., Inc..............
Robertson, Stephens & Company LLC...
---------
Total....... 2,900,000
=========
33