EXHIBIT 1.1
2,012,500 SHARES
BAKERS FOOTWEAR GROUP, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
[ ], 2004
Ryan Beck & Co., Inc.
BB&T Capital Markets
as Representatives of the Underwriters
c/o Ryan Beck & Co., Inc.
650 Madison Avenue
New York, New York 10022
Dear Sirs:
Bakers Footwear Group, Inc., a Missouri corporation (the "Company"),
proposes to issue and sell to the Underwriters named in Schedule A hereto (the
"Underwriters"), for whom Ryan Beck & Co., Inc. ("Ryan Beck") and BB&T Capital
Markets, a Division of Scott & Stringfellow, Inc. ("BB&T") are acting as
representatives (Ryan Beck and BB&T are, collectively, the "Representatives"),
an aggregate of 1,750,000 shares (the "Firm Shares") of the Common Stock, par
value $.0001 per share (the "Common Stock"), of the Company. In addition, for
the sole purpose of covering over-allotments in connection with the sale of the
Firm Shares, the Company proposes to issue and sell to the Underwriters, at the
Underwriters' option, up to an additional 262,500 shares of Common Stock (the
"Option Shares") as set forth herein. The term "Shares" as used herein, unless
otherwise indicated, shall mean the Firm Shares and the Option Shares.
The Company also proposes to issue and sell to the Representatives
warrants (the "Warrants") pursuant to the Representatives' Warrant Agreement
among the Company and the Representatives (the "Warrant Agreement") for the
purchase of an additional aggregate 175,000 shares of Common Stock. The shares
of Common Stock issuable upon exercise of the Warrants are hereinafter referred
to as the "Representatives' Shares." The Firm Shares, the Option Shares, the
Warrants and the Representatives' Shares (collectively, the "Securities") are
more fully described in the Registration Statement and the Prospectus referred
to below.
SECTION 1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY.
The Company represents and warrants to, and agrees with, each of the
Underwriters as of the date hereof, and as of the First Closing Date (as defined
in Section 3(a) below) and the Option Closing Date (as defined in Section 3(b)
below), if any, as follows:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, and an amendment or amendments
thereto, on Form S-1 (File No. 333-86332) including any related preliminary
prospectus (the "Preliminary Prospectus") for the registration of the Securities
under the Securities Act of 1933, as amended (the "Securities Act"), which
registration statement and amendment or amendments thereto have been prepared by
the Company in conformity with the requirements of the Securities Act and the
rules and regulations (the "Rules and Regulations") of the Commission under the
Securities Act. Copies of such registration statement and each of the amendments
thereto have been delivered by the Company to the Underwriters. As used in this
Agreement, "Effective Time" means the date and the time as of which such
registration statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission; "Effective Date" means the date
of the Effective Time; "Preliminary Prospectus" means each prospectus included
in such registration statement, or amendments thereof, before it became
effective under the Securities Act and any prospectus filed with the Commission
by the Company with the consent of the Underwriters pursuant to Rule 424(a) of
the Rules and Regulations; "Registration Statement" means such registration
statement, as amended at the Effective Time, including all information contained
in the Prospectus filed with the Commission pursuant to Rule 424(b) of the Rules
and Regulations and deemed to be a part of the Registration Statement as of the
Effective Time pursuant to Rule 430A of the Rules and Regulations; and
"Prospectus" means the prospectus in the form first used to confirm sales of
Shares. If the Company has filed an abbreviated registration statement to
register additional shares of Common Stock pursuant to Rule 462(b) under the
Securities Act (the "Rule 462 Registration Statement"), then any reference
herein to the term "Registration Statement" shall be deemed to include such Rule
462 Registration Statement. Neither the Commission nor any state regulatory
authority has issued any order preventing or suspending the use of any
Preliminary Prospectus or the Registration Statement or any part of any thereof
and no proceedings for a stop order suspending the effectiveness of the
Registration Statement or any of the Company's securities have been instituted
or are pending or to the Company's knowledge, threatened.
(b) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the Commission, as
the case may be, conform to the requirements of the Securities Act and the Rules
and Regulations and do not and will not, as of the applicable effective date (as
to the Registration Statement and any amendment thereto) and as of the
applicable filing date (as to the Prospectus and any amendment or supplement
thereto) 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 (in the case of the Prospectus, in light of the circumstances under
which they were made) not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Underwriters
specifically for inclusion therein as set forth in Section 9(f) of this
Agreement.
(c) The Company (i) has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation, (ii) is duly
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qualified to do business and is in good standing as a foreign corporation in
each jurisdiction in which its ownership or lease of property or conduct of
business requires such qualification and (iii) has all power and authority
necessary to own, lease or hold its properties and to conduct the business in
which it is engaged.
(d) On the Closing Date, the Company will have a duly authorized,
issued and outstanding capitalization as set forth in the Prospectus, under
"Capitalization" and "Description of Capital Stock" and will have the adjusted
capitalization set forth therein on the Closing Date and the Option Closing
Date, if any, based upon the assumptions set forth therein, and the Company is
not a party to or bound by any instrument, agreement or other arrangement
providing for it to issue any capital stock, rights, warrants, options or other
securities, except for this Agreement, the Warrant Agreement and as described in
the Prospectus. The Securities and all other securities issued and outstanding
or issuable by the Company conform or, when issued and paid for in accordance
with and pursuant to this Agreement, will conform to all statements with respect
thereto contained in the Registration Statement and the Prospectus. All issued
and outstanding securities of the Company have been duly authorized and validly
issued and are fully paid and nonassessable and the holders thereof have no
rights of rescission with respect thereto, and are not subject to personal
liability by reason of being such holders; and none of such securities were
issued in violation of the preemptive rights of any holders of any security of
the Company or similar contractual rights granted by the Company. The Securities
are not and will not be subject to any preemptive or other similar rights of any
shareholder, have been duly authorized and, when issued, paid for and delivered
in accordance with the terms hereof (or, with respect to the Warrants and the
Representatives' Shares, the terms of the Warrant Agreement), will be validly
issued, fully paid and nonassessable and will conform to the description thereof
contained in the Prospectus; the holders thereof will not be subject to any
liability solely by reason of being such holders; all corporate action required
to be taken for the authorization, issue and sale of the Securities has been
duly and validly taken; and the certificates representing the Securities, if
any, will be in due and proper form. Upon the issuance and delivery pursuant to
the terms hereof of the Securities hereunder (or, with respect to the Warrants
and the Representatives' Shares, the terms of the Warrant Agreement), the
Underwriters will acquire good and marketable title to such Securities free and
clear of any lien, charge, claim, encumbrance, pledge, security interest, defect
or other restriction or equity of any kind whatsoever.
(e) This Agreement and the Warrant Agreement have been duly authorized,
executed and delivered by the Company and constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law), and except insofar as the indemnification and contribution provisions
hereof may be limited by considerations of public policy.
(f) The Company has all requisite power and authority to execute,
deliver and perform its obligations under this Agreement, the Warrant Agreement
and the Warrants.
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(g) The execution, delivery and performance of this Agreement, the
Warrant Agreement and the Warrants by the Company and the consummation of the
transactions contemplated hereby and thereby will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the Company is
subject (except as disclosed in or contemplated by the Prospectus), nor will
such actions result in any violation of the provisions of (i) the articles of
incorporation (or other equivalent organizational document) or by-laws (or other
equivalent organizational document) of the Company as in effect on the Closing
Date or (ii) any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
properties or assets. Except for the registration of the Securities under the
Securities Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and applicable state or foreign securities laws or
by the National Association of Securities Dealers, Inc. (the "NASD") in
connection with the purchase and distribution of the Shares by the Underwriters,
no consent, approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement or the Warrant Agreement by the
Company and the consummation of the transactions contemplated hereby and
thereby.
(h) The Company does not have any direct or indirect ownership interest
by stock ownership or otherwise in any other corporation, limited liability
company, partnership, joint venture, firm, association or business enterprise.
(i) Except as set forth in or as otherwise contemplated by the
Prospectus, there are no contracts, agreements or understandings between the
Company and any person granting such person the right (other than rights which
have been waived or satisfied) to require the Company to file a registration
statement under the Securities Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration Statement
or in any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
(j) Except as set forth in the Registration Statement, the Company has
not sold or issued any securities during the six-month period preceding the date
of the Prospectus, including any sales pursuant to Rule 144A under, or
Regulations D or S of, the Securities Act other than securities issued pursuant
to employee benefit plans, stock option plans or other employee compensation
plans or pursuant to outstanding options, rights or warrants.
(k) The Company has caused each officer, director and holder of shares
of Common Stock and securities exchangeable or exercisable for or convertible
into shares of Common Stock of the Company, to execute legally binding and
enforceable agreements substantially in the form of Exhibit A hereto (such
executed agreements being referred to as the "Lock-Up Agreements").
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(l) The Company has not sustained, since the date of the latest audited
financial statements included in the Prospectus, any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since such date, there has not been any
material change in the capital stock or long-term debt of the Company or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the management, financial position,
shareholders' equity, results of operations, business or prospects of the
Company, otherwise than as set forth or contemplated in the Prospectus.
(m) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or included in
the Prospectus present fairly the financial condition and results of operations
of the Company, at the dates and for the periods indicated, and, except as
disclosed in the Prospectus, have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved. The other financial information and data filed as part of the
Registration Statement or included in the Prospectus, including, without
limitation, the financial information and data presented in the sections titled
"Recent [Developments]," "Summary," and "Selected Historical Financial
Information," is fairly presented and prepared on a basis consistent with such
financial statements and the books and records of the Company.
(n) Ernst & Young, LLP, who have certified certain financial statements
of the Company, whose report is included in the Prospectus and who have
delivered the initial letter referred to in Section 7(e) hereof, are independent
public accountants as required by the Securities Act and the Rules and
Regulations.
(o) Stone Carlie & Company, LLC, who have delivered the initial letter
referred to in Section 7(e) hereof, are independent public accountants as
required by the Securities Act and the Rules and Regulations.
(p) The Company has good and marketable title in fee simple to, or
valid and enforceable leasehold estates in, all items of real and personal
property owned or leased by it, in each case free and clear of all liens,
charges, claims, encumbrances, pledges, security interests, defects or other
restrictions or equities of any kind whatsoever, except such as are described in
or contemplated by the Prospectus.
(q) The Company carries, or is covered by, insurance in such amounts
and covering such risks as is adequate for the conduct of its business and the
value of its properties and as is customary for companies engaged in similar
businesses in similar industries.
(r) Except as disclosed in the Prospectus, the Company owns or
possesses adequate rights to use all patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark registrations,
copyrights and licenses necessary for the conduct of its business as presently
conducted (the "Intellectual Property") and has no reason to believe that the
conduct of its business will conflict with, and has not received any notice of
any claim of conflict with, any such rights of others, in each case except as
could not reasonably be expected to have a
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material adverse effect on the general affairs, management, condition (financial
or otherwise), shareholders' equity, results of operations, business or
prospects of the Company (a "Material Adverse Effect").
(s) The Company has taken reasonable security measures to protect the
secrecy, confidentiality and value of its Intellectual Property and other
proprietary information in all respects.
(t) Except as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company is a party or of which any
property or assets of the Company is the subject which, if determined adversely
to the Company would reasonably be expected to have a Material Adverse Effect;
and, to the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others.
(u) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration Statement
by the Securities Act or by the Rules and Regulations which have not been
described in the Prospectus or filed as exhibits to the Registration Statement.
(v) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, shareholders, customers or
suppliers of the Company on the other hand, which is required to be described in
the Prospectus which is not so described.
(w) No labor disturbance by the employees of the Company exists or, to
the knowledge of the Company, is imminent.
(x) The Company is in compliance with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) for which the Company would have any
material liability; the Company has not incurred and does not expect to incur
liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for which the
Company would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified and nothing has occurred, whether by action
or by failure to act, which would cause the loss of such qualification.
(y) The Company has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof, has paid all
taxes due thereon and has established adequate reserves for such taxes which are
not yet due and payable, and does not have any tax deficiency or claims
outstanding, proposed or assessed against it.
(z) Since the date as of which information is given in the Prospectus
through the date hereof, and except as may otherwise be disclosed in or
contemplated by the Prospectus, the
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Company has not (i) issued or granted any securities, (ii) incurred any material
liability or obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of business, (iii)
entered into any transaction not in the ordinary course of business or (iv)
declared or paid any dividend on its capital stock.
(aa) The Company (i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls which provide reasonable assurance
that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit preparation
of its financial statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is compared
with existing assets at reasonable intervals.
(bb) The Company (i) is not in violation of its articles of
incorporation (or other equivalent organizational document) or by-laws (or other
equivalent organizational document) as in effect on the Closing Date, (ii) is
not in default in any respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other material agreement or
instrument to which it is a party or by which it is bound or to which any of its
properties or assets is subject (except as disclosed in or contemplated by the
Prospectus) or (iii) is not in violation in any respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its property or
assets may be subject or has not failed to obtain any license, permit,
certificate, franchise or other governmental authorization or permit necessary
to the ownership of its property or to the conduct of its business in each case
except as could not reasonably be expected, individually or in the aggregate, to
have a material adverse effect on the general affairs, management, condition
(financial or otherwise), shareholders' equity, results of operations, business
or prospects of the Company.
(cc) The minute books of the Company have been made available to the
Underwriters and contain a complete summary of all meetings and other actions of
the directors and shareholders of the Company in all material respects since the
time of its incorporation, and reflect all transactions referred to in such
minutes accurately in all respects.
(dd) The Company has as of the effective date of the Registration
Statement (i) entered into an employment agreement with each of Peter Edison,
Michele Bergerac, Stanley K. Tusman, Joe Vander Pluym and Mark Ianni, in the
forms filed as Exhibits 10.15, 10.16, 10.20, 10.21 and 10.22, respectively, to
such Registration Statement, and (ii) purchased key-man insurance on the life of
Peter Edison in the amount of $_________, which names the Company as the sole
beneficiary thereof.
(ee) Neither the Company nor any director, officer, agent, employee or
other person associated with or acting on behalf of the Company, has used any
corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision of the Foreign
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Corrupt Practices Act of 1977; or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(ff) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company (or, to the
knowledge of the Company, any of its predecessors in interest) at, upon or from
any of the property now or previously owned or leased by the Company in
violation of any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit or which would require remedial action under any applicable
law, ordinance, rule, regulation, order, judgment, decree or permit; and there
has been no material spill, discharge, leak, emission, injection, escape,
dumping or release of any kind onto such property or into the environment
surrounding such property of any toxic wastes, medical wastes, solid wastes,
hazardous wastes or hazardous substances due to or caused by the Company or with
respect to which the Company has knowledge. The terms "hazardous wastes", "toxic
wastes", "hazardous substances" and "medical wastes" shall have the meanings
specified in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(gg) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as defined in the Investment Company
Act of 1940, as amended.
(hh) The Common Stock has been designated for inclusion in the Nasdaq
National Market.
(ii) None of the Company nor its officers, directors, shareholders, nor
any of their respective affiliates (within the meaning of the Rules and
Regulations) has taken or will take, directly or indirectly, any action designed
to cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation, under the Exchange
Act or otherwise, of the price of the Common Stock to facilitate the sale or the
resale of the Common Stock hereby.
(jj) The Company does not conduct business with the government of Cuba
or with any person or affiliate located in Cuba within the meaning of Section
517.075 of the Florida Statutes, and all rules and regulations thereunder,
relating to issuers doing business in Cuba and the Company agrees to comply with
such statute if prior to the completion of the distribution of the Securities,
the Company commences doing such business.
(kk) The Company has not distributed, nor will it distribute prior to
the First Closing Date any offering material in connection with the offering and
sale of the Securities other than the Preliminary Prospectus, the Prospectus,
the Registration Statement or any other materials permitted by the Securities
Act, if any.
(ll) Except as described in the Prospectus under "Underwriting," there
are no claims, payments, issuances, arrangements or understandings, whether oral
or written, for services in the nature of a finder's or origination fee with
respect to the sale of the Securities hereunder or any other arrangements,
agreements, understandings, payments or issuance with respect to the
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Company or any of its officers, directors, shareholders, partners, employees or
affiliates that may affect the Underwriters' compensation, as determined by the
NASD.
SECTION 2. PURCHASE OF THE SHARES BY THE UNDERWRITERS.
(a) On the basis of the representations and warranties contained in,
and subject to the terms and conditions of, this Agreement and the Warrant
Agreement, the Company agrees to issue and sell to the several Underwriters and
each such Underwriter agrees, severally and not jointly, to buy from the Company
at $_____ per Share, at the place and time hereinafter specified, the respective
number of Firm Shares set forth opposite the names of the Underwriters in
Schedule A attached hereto plus any additional Shares which such Underwriters
may become obligated to purchase pursuant to the provisions of Section 8 hereof.
(b) In addition, subject to the terms and conditions of this Agreement,
and upon the basis of the representations, warranties and agreements herein
contained, the Company hereby grants an option to the several Underwriters to
purchase all or any part of the Option Shares at the same price per Share as the
Underwriters shall pay for the Firm Shares being sold pursuant to the provisions
of subsection (a) of this Section 2. This option may be exercised within 45 days
after the effective date of the Registration Statement upon notice by the
Representatives to the Company advising as to the amount of Option Shares as to
which the option is being exercised, the names and denominations in which the
certificates for such Option Shares are to be registered and the time and date
when such certificates are to be delivered. The number of Option Shares to be
purchased by each Underwriter, if any, shall bear the same percentage to the
total number of Option Shares being purchased by the several Underwriters
pursuant to this subsection (b) as the number of Firm Shares such Underwriter is
purchasing bears to the total number of the Firm Shares being purchased pursuant
to subsection (a) of this Section 2, as adjusted, in each case, by the
Underwriters in such manner as the Underwriters may deem appropriate. The option
granted hereunder may be exercised only to cover over-allotments in the sale by
the Underwriters of Firm Shares referred to in subsection (a) above. In the
event the Company declares or pays a dividend or distribution on its Common
Stock, whether in the form of cash, shares of Common Stock or any other
consideration, following the First Closing Date and prior to the Option Closing
Date, such dividend or distribution shall also be paid on the Option Shares on
the Option Closing Date.
SECTION 3. DELIVERY AND PAYMENT.
(a) Delivery of the Firm Shares against payment therefor shall take
place at the offices of Ryan Beck (or at such other place as may be designated
by agreement between the Representatives and the Company) at 10:00 a.m. New York
time, on the third full business day after the Effective Date, or at such other
time not earlier than three nor more than ten full business days thereafter as
the Representatives and the Company shall determine. Such time and date of
payment and delivery for the Firm Shares being herein called the "First Closing
Date."
(b) In addition, in the event the Underwriters exercise the option to
purchase from the Company all or any portion of the Option Shares pursuant to
the provisions of Section 2(b), then delivery of the Option Shares against
payment therefor shall take place at the offices of
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Ryan Beck (or at such other place as may be designated by agreement between the
Representatives and the Company) at such time and date as shall be determined by
the Representatives but shall not be earlier than four nor later than ten full
business days after the exercise of said option, nor in any event prior to the
First Closing Date. Such time and date is referred to herein as the "Option
Closing Date."
(c) Unless the Representatives elect to take delivery of the Shares by
credit through full FAST transfer to the accounts at The Depository Trust
Company designated by the Representatives, certificates for the Shares shall be
delivered to the Representatives in definitive form registered in such names and
in such denominations as the Representatives shall specify in writing at least
two full business days prior to the applicable Closing Date First Closing Date
or the Option Closing Date, as the case may be (which are collectively referred
to herein as the "Closing Dates"). For the purpose of expediting the checking of
the certificates for the Firm Shares or the Option Shares, as the case may be,
by the Representatives, the Company agrees to make such certificates available
to the Representatives for such purpose at least one full business day preceding
the applicable Closing Date. Time shall be of the essence and delivery at the
time and place specified in this Agreement is a further condition to the
obligations of each Underwriter.
(d) Payment for the Shares shall be made to or upon the order of the
Company by certified or bank cashier's checks payable in New York Clearing House
funds at the time and date of delivery of such Shares as required by the
provisions of subsections (a) and (b) above or by wire transfer in immediately
available funds to a bank account designated by the Company at least two
business days prior to the First Closing Date or the Option Closing Date, as the
case may be, against receipt of the definitive certificates in negotiable form
for such Shares by the Representatives for the respective accounts of the
Underwriters registered in such names and in such denominations as the
Representatives may request.
(e) It is understood that either of you, individually and not as
Representatives of the several Underwriters, may (but shall not be obligated to)
make any and all payments required pursuant to this Section 3 on behalf of any
Underwriter whose check or checks shall not have been received by the
Representatives at the time of delivery of the Shares to be purchased by such
Underwriter or Underwriters. Any such payment by you shall not relieve any such
Underwriter or Underwriters of any of its or their obligations hereunder.
(f) On the First Closing Date, the Company shall issue and sell to the
Representatives, one or more Warrants at a purchase price of $.0001 per warrant,
which warrants shall entitle the holders thereof to purchase an aggregate of
175,000 shares of Common Stock. The Warrants shall be exercisable for a period
of four years commencing one year after the First Closing Date at a price
equaling one hundred and twenty percent (120%) of the public offering price of
the Firm Shares. The Warrant Agreement and form of Warrant Certificate shall be
substantially in the form filed as Exhibit 4.3 to the Registration Statement.
Payment for the Warrants shall be made by the Representatives to or upon the
order of the Company on the Closing Date.
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SECTION 4. OFFERING OF SHARES BY THE UNDERWRITERS. It is understood
that the Underwriters propose to make a public offering of the Shares at the
price and upon the other terms set forth in the Prospectus. The Underwriters
may, at their own expense, enter into one or more agreements, in their sole
discretion, as they deem advisable, with one or more broker-dealers who shall
act as dealers in connection with such public offering. The Underwriters may
from time to time change the public offering price after the closing of the
public offering and increase or decrease the concessions and discounts to
dealers as they may determine.
SECTION 5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Underwriters
and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not
later than the Commission's close of business on the second business day
following the execution and delivery of this Agreement or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to
make no further amendment or any supplement to the Registration Statement or to
the Prospectus except as permitted herein; to advise the Underwriters, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed and to furnish the
Underwriters with copies thereof; to advise the Underwriters, promptly after it
receives notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any Preliminary Prospectus or
the Prospectus, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed
with the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith;
(c) To deliver promptly to the Underwriters such number of the
following documents as each Underwriter shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the Commission and
each amendment thereto (in each case excluding exhibits) and (ii) each
Preliminary Prospectus, the Prospectus and any amended or supplemented
Prospectus; and, if the delivery of a prospectus is required at any time after
the Effective Time in connection with the offering or sale of the Shares or any
other securities relating thereto and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary to amend or
supplement the Prospectus in order to comply with the Securities Act, to notify
the Underwriters and, upon their request, to prepare and furnish without
11
charge to the Underwriters and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or omission or effect
such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the reasonable judgment of the Company or the Underwriters, be
required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to
the Underwriters and counsel for the Underwriters and obtain the consent of the
Underwriters to the filing, which consent shall not be unreasonably delayed or
withheld;
(f) As soon as practicable after the Effective Date, to make generally
available to the Company's security holders and to deliver to the Underwriters
an earnings statement of the Company (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and Regulations (including, at
the option of the Company, Rule 158);
(g) Upon the request of the Underwriters, for a period of five (5)
years following the Effective Date, to furnish to the Underwriters copies of all
materials furnished by the Company to its shareholders generally and all public
reports and all reports and financial statements furnished by the Company to the
principal national securities exchange or market system upon which the Common
Stock may be listed or included pursuant to requirements of or agreements with
such exchange or market system or to the Commission pursuant to the Exchange Act
or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Underwriters
may reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as the Underwriters may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the
distribution of the Shares; provided that in connection therewith, the Company
shall not be required to qualify as a foreign corporation, to submit to general
taxation or to file a general consent to service of process in any jurisdiction;
(i) Except for the registration of securities pursuant to the exercise
of registration rights granted to the holders of the Company's Subordinated
Convertible Debentures due 2007, for a period of 365 days from the date of the
Prospectus, not to, directly or indirectly, (1) offer for sale, sell, pledge or
otherwise dispose of (or enter into any transaction or device which is designed
to, or could be expected to, result in the disposition by any person at any time
in the future of) any shares of Common Stock or securities convertible into or
exchangeable for Common Stock (other than (x) the Securities, or (y) shares of
Common Stock issued pursuant to employee benefit plans, stock option plans or
other employee compensation plans existing on the date hereof or pursuant to
currently outstanding options, warrants or rights or upon conversion of shares
of Common Stock), or substantially similar securities, or sell or grant options,
rights or
12
warrants with respect to any shares of Common Stock or securities convertible
into or exchangeable for Common Stock or substantially similar securities (other
than the grant of options pursuant to benefit plans existing on the date
hereof), or (2) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic benefits or risks
of ownership of such shares of Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common
Stock or other securities, in cash or otherwise, in each case without the prior
written consent of Ryan Beck;
(j) To take such steps as shall be necessary to ensure that the Company
shall not become an "investment company" as defined in the Investment Company
Act of 1940, as amended, and the rules and regulations of the Commission
thereunder;
(k) During the period of 365 days from the date of the Prospectus, to
obtain an executed letter substantially in the form of Exhibit A hereto from
each new officer and director who has not previously executed such a letter;
(l) The Company will apply the net proceeds from the sale of the Shares
for the purposes set forth under "Use of Proceeds" in the Prospectus;
(m) Prior to the First Closing Date, the Company will make all filings
required to obtain the designation for inclusion of the Shares in the Nasdaq
National Market and will effect and maintain such inclusion (or a listing on a
national exchange registered under the Exchange Act) for at least five years
from the date of this Agreement, including without limitation, compliance with
all applicable corporate governance requirements thereof; provided, however,
that nothing herein shall affect the Company's ability to sell assets or stock,
merge, consolidate or be acquired by any person, and if as a result of any such
sale, merger, consolidation, acquisition or similar transaction, the Company's
Common Stock ceases to be publicly traded, this Section 5(m) shall terminate and
cease to have further force or effect.
(n) The Company will maintain a transfer agent and, if necessary under
the jurisdiction of the incorporation of the Company, a registrar (which may be
the same entity as the transfer agent) for its Common Stock;
(o) The Company shall timely file all such reports, forms or other
documents as may be required from time to time, under the Securities Act, the
Exchange Act, and the Rules and Regulations, and all such reports, forms and
documents filed will comply as to form and substance with the applicable
requirements under the Securities Act, the Exchange Act, and the Rules and
Regulations;
(p) For a period of five (5) years from the Closing Date, the Company
shall furnish to the Underwriters at the Underwriters' request and at the
Company's sole expense, (i) daily consolidated transfer sheets relating to the
Common Stock, (ii) the list of holders of all of the Company's securities and
(iii) a Blue Sky "Trading Survey" for secondary sales of the Company's
securities prepared by counsel to the Company; and
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(q) Until the completion of the distribution of the Shares, and for 25
days thereafter, the Company shall not without the prior written consent of the
Underwriters and counsel for the Underwriters, issue, directly or indirectly,
any press release or other communication or hold any press conference with
respect to the Company or its activities or the offering contemplated hereby.
(r) For a period of five (5) years from the effective date of the
Registration Statement, the Company shall nominate one individual selected by
Ryan Beck for election to the Board of Directors of the Company (the "Board"),
if requested by Ryan Beck, and shall solicit proxies in support of such
nomination. If Ryan Beck shall not have designated such an individual at the
time of any meeting of the Board or such person shall not have been elected or
shall be unavailable to serve, the Company shall notify Ryan Beck of each such
meeting. If an individual selected by Ryan Beck is not serving on the Board, an
individual selected by Ryan Beck shall be permitted to attend all meetings of
the Board and to receive all notices and other correspondence and communications
sent by the Company to members of the Board. The Company further agrees to
provide its outside directors with compensation as deemed appropriate by the
Board and as customary for similar companies. The Company shall reimburse the
designee to the Board of Ryan Beck for his or her out-of-pocket expenses
reasonably incurred in connection with his or her attendance at Board meetings.
(s) For a period of three (3) years from the effective date of the
Registration Statement, the Company shall not directly or indirectly offer,
sell, contract to sell, sell any option, grant any option, right or warrant for
shares of the Company's Common Stock or securities exchangeable or exercisable
for or convertible into shares of the Company's Common Stock to any of the
Company's directors, officers or employees at a price less than the price per
Share set forth in Section 2(a) without the prior written consent of Ryan Beck.
(t) For a period of three (3) years from the effective date of the
Registration Statement, the Company shall not effect a change in its accounting
firm without the prior written consent of the Representatives, except that no
consent is required if the new accounting firm is a "big four" accounting firm.
(u) The Company will comply with all applicable securities and other
applicable laws, rules and regulations, including, without limitation, the
Sarbanes-Oxley Act of 2002, and will use its best efforts to cause the Company's
trustees and officers, in their capacities as such, to comply with such laws,
rules and regulations, including, without limitation, the provisions of the
Sarbanes-Oxley Act of 2002.
SECTION 6. EXPENSES.
(a) The Company agrees to pay: (i) all of the Underwriters' expenses
and fees, including the expenses and fees of counsel to the Underwriters
($_______ of which has been paid as of the date hereof), (ii) the costs incident
to the sale and delivery of the Securities and any taxes payable in that
connection; (iii) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (iv) the costs of distributing the Registration Statement as
originally filed and each amendment
14
thereto and any post-effective amendments thereof (including, in each case,
exhibits), any Preliminary Prospectus, the Prospectus and any amendment or
supplement to the Prospectus, all as provided in this Agreement; (v) the costs
of reproducing and distributing this Agreement, the Warrant Agreement and any
other related documents in connection with the offering, purchase, sale and
delivery of the Securities; (vi) the filing fees and expenses incident to
securing the review by the NASD of the terms of sale of the Securities
(including related fees and expenses of counsel to the Underwriters, which
obligation shall be in addition to the obligation referred to in subparagraph
(i) above); (vii) any applicable listing or other fees; (viii) the fees and
expenses of qualifying the Shares under the securities laws of the several
jurisdictions as provided in Section 5(h) and of preparing and distributing a
Blue Sky Memorandum (including related fees and expenses of counsel to the
Underwriters, which obligation shall be in addition to the obligation referred
to in subparagraph (i) above); (ix) costs and expenses related to "Tombstone"
advertisements; (x) the costs and expenses related to the production of five
bound volumes of the completed Registration Statement for each of the
Representatives; and (xi) the costs and expenses relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the offering of the Shares including, without limitation, expenses associated
with the production of road show slides and graphics, printing and advertising
fees and expenses, fees and expenses of any consultants engaged in connection
with the road show presentations, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and all
other costs and expenses incident to the performance of the obligations of the
Company under this Agreement and the Warrant Agreement, including all accounting
and counsel fees and expenses incurred by the Company in connection with the
offering of the Shares hereunder. The fees and expenses referred to in
subparagraphs (vi) and (viii) above shall not exceed $20,000 in the aggregate.
In addition, at the Closing Date or the Option Closing Date, as the
case may be, the Representatives will deduct from the payment for the Shares
three percent (3%) of the gross proceeds of the offering, in payment of the
Representative's non-accountable expense allowance relating to the transactions
contemplated hereby.
(b) No person is entitled either directly or indirectly to compensation
from the Company, from the Underwriters or from any other person for services as
a finder in connection with the proposed offering, and the Company agrees to
indemnify and hold harmless the Underwriters, against any losses, claims,
damages or liabilities, joint or several (which shall, for all purposes of this
Agreement and the Warrant Agreement, include, but not be limited to, all costs
of defense and investigation and all attorneys' fees), to which the Underwriters
may become subject insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon the claim of any
person (other than an employee of the party claiming indemnity) or entity that
he or it is entitled to a finder's fee in connection with the proposed offering
by reason of such person's or entity's influence or prior contact with the
Company.
SECTION 7. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of
the several Underwriters to purchase and pay for the Shares which they have
respectively agreed to purchase hereunder on the Closing Dates are subject (x)
to the accuracy when made and as of the
15
applicable Closing Date, of the representations and warranties of the Company
contained herein (provided that, in the case of this clause (x), the obligations
of the Underwriters hereunder shall be subject to the accuracy in all material
respects of those representations and warranties that are not qualified as to
materiality), (y) to the performance by the Company of its obligations hereunder
and (z) to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 5(a); no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise shall
have been complied with.
(b) The Underwriters shall not have discovered and disclosed to the
Company on or prior to either of the Closing Dates that the Registration
Statement or the Prospectus or any amendment or supplement thereto contains an
untrue statement of fact which, in the opinion of Greenberg Traurig, P.A.,
counsel for the Underwriters, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) Bryan Cave LLP shall have furnished to the Underwriters its written
opinion, as counsel to the Company, addressed to the Underwriters and dated the
First Closing Date, in substantially the form attached hereto as Exhibit B.
(d) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Warrant Agreement, the
Warrants, the Shares, the Registration Statement, the Prospectus and all other
matters related to this Agreement, the Warrant Agreement, the Warrants, the
Shares, the Registration Statement, the Prospectus and the transactions
contemplated hereby and thereby shall be reasonably satisfactory to or approved
by Greenberg Traurig, P.A., counsel for the Underwriters, and the
Representatives shall have received from such counsel a signed opinion, dated as
of the First Closing Date, together with copies thereof for each of the other
Underwriters, in form and substance satisfactory to the Underwriters. The
Company shall have furnished to counsel for the Underwriters such documents and
information as they may reasonably request for the purpose of enabling it to
render such opinion.
(e) At the time of execution of this Agreement, the Underwriters shall
have received from each of Ernst & Young, LLP and Stone Carlie & Company, LLC a
letter, in form and substance satisfactory to the Underwriters, addressed to the
Underwriters and dated the date hereof (i) confirming that they are independent
public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission and (ii)
stating, as of the date hereof (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five days
prior to the date hereof), the conclusions and findings of
16
such firm with respect to the financial information and other matters ordinarily
covered by accountants' "comfort letters" to underwriters in connection with
registered public offerings.
(f) With respect to the letters of each of Ernst & Young LLP and Stone
Carlie & Company, LLC referred to in the preceding paragraph and delivered to
the Underwriters concurrently with the execution of this Agreement (each, an
"initial letter"), the Company shall have furnished to the Underwriters a letter
(the "bring-down letter") of each of such accountants, addressed to the
Underwriters and dated the First Closing Date (i) confirming that they are
independent public accountants within the meaning of the Securities Act and are
in compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating,
as of the date of the bring-down letter (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more than
five days prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and other
matters covered by the initial letter and (iii) confirming the conclusions and
findings set forth in the initial letter.
(g) The Company shall have furnished to the Representatives on behalf
of the Underwriters a certificate, dated the First Closing Date, of its Chief
Executive Officer and its Chief Financial Officer stating that:
(i) The representations, warranties and agreements of the
Company in Section 1 are true and correct as of the First Closing Date
(provided that such representations, warranties and agreements that are
not qualified as to materiality shall be true in all material
respects); the Company has complied with all its agreements contained
herein; and the conditions set forth in this Section 7 have been
fulfilled; and
(ii) They have carefully examined the Registration Statement
and the Prospectus and, in their opinion (A) as of the Effective Date,
the Registration Statement and the Prospectus did not include any
untrue statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and (B) since the Effective Date no
event has occurred which should have been set forth in a supplement or
amendment to the Registration Statement or the Prospectus which was not
so set forth therein.
(h) The Company shall have not sustained since the date of the latest
audited financial statements included in the Prospectus (i) any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus or (ii) since such date there shall not have been
any change in the capital stock or long-term debt of the Company or any adverse
change, or any development involving a prospective adverse change, in or
affecting the general affairs, management, financial position, shareholders'
equity or results of operations of the Company, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case described
in clause (i) or (ii), is, in the judgment of the Representatives, so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares
17
being delivered on the respective Closing Date on the terms and in the manner
contemplated in the Prospectus.
(i) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange, the
Nasdaq National Market or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter market,
shall have been suspended or minimum prices shall have been established on any
such exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state authorities, (iii) the
United States shall have become engaged in hostilities other than existing
hostilities, there shall have been a material escalation in existing hostilities
or acts of terrorism involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv) there
shall have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international conditions on
the financial markets in the United States shall be such) as to make it, in the
judgment of the Representatives, impracticable or inadvisable to proceed with
the public offering or delivery of the Shares being delivered on the respective
Closing Date on the terms and in the manner contemplated in the Prospectus.
(j) The Shares shall be designated for inclusion in the Nasdaq National
Market.
(k) No action shall have been taken by the Commission or the NASD, the
effect of which would make it improper, at any time prior to the respective
Closing Date, for members of the NASD to execute transactions (as principal or
agent) in the Shares and no proceedings for the taking of such action shall have
been instituted or shall be pending, or, to the knowledge of the Underwriters or
the Company, shall be contemplated by the Commission or the NASD. The Company
represents that at the date hereof it has no knowledge that any such action is
in fact contemplated by the Commission or the NASD. The Company shall have
advised the Underwriters of any NASD affiliation of any of its officers,
directors, shareholders or their affiliates.
(l) Upon exercise of the option provided for in Section 2(b) hereof,
the obligations of the several Underwriters to purchase and pay for the Option
Shares referred to therein will be subject (as of the date hereof and as of the
Option Closing Date) to the following additional conditions:
(i) The Registration Statement shall remain effective at the
Option Closing Date, and no stop order suspending the effectiveness
thereof shall have been issued and no proceedings for that purpose
shall have been instituted or shall be pending, or, to the knowledge of
the Representatives or the Company, shall be contemplated by the
Commission, and any reasonable request on the part of the Commission
for additional information shall have been complied with to the
satisfaction of counsel to the several Underwriters.
18
(ii) At the Option Closing Date, Bryan Cave LLP shall have
furnished to the Underwriters its written opinion as counsel to the
Company addressed to the Underwriters, which opinion shall be dated the
Option Closing Date and shall be substantially the same in scope and
substance as the opinion furnished to the Underwriters at the First
Closing Date pursuant to Section 7(c) hereof, except that such opinion,
where appropriate, shall cover the Option Shares.
(iii) At the Option Closing Date, there shall have been
delivered to the Underwriters a letter in form and substance
satisfactory to the Underwriters from each of Ernst & Young, LLP and
Stone Carlie & Company, LLC dated the Option Closing Date and addressed
to the Underwriters confirming the information in their letter referred
to in Section 7(e) hereof and stating that nothing has come to their
attention during the period from the ending date of their review
referred to in said letters to a date not more than five business days
prior to the Option Closing Date, which would require any change in
said letter if it were required to be dated the Option Closing Date.
(iv) At the Option Closing Date, the Company shall have
furnished to the Representatives of the Underwriters a certificate,
dated the Option Closing Date, of its Chief Executive Officer and the
Chief Financial Officer, in form and substance satisfactory to counsel
for the Underwriters substantially the same in scope and substance as
the certificates furnished to you at the First Closing Date pursuant to
Section 7(g) hereof.
(v) All proceedings taken at or prior to the Option Closing
Date in connection with the sale and issuance of the Option Shares
shall be satisfactory in form and substance to the Representatives and
Greenberg Traurig, P.A., counsel to the several Underwriters, shall
have been furnished with all such documents, certificates, and opinions
as the Representatives may reasonably request in connection with this
transaction in order to evidence the accuracy and completeness of any
of the representations, warranties or statements of the Company or its
compliance with any of the covenants or conditions herein.
(m) On or before the First Closing Date, the Company shall have
executed and delivered to the Representatives, (i) the Warrant Agreement
substantially in the form filed as Exhibit 4.3 to the Registration Statement in
final form and substance satisfactory to the Underwriters, and (ii) the Warrants
in such denominations and to such designees as shall have been provided to the
Company.
(n) On or before the First Closing Date, there shall have been
delivered to the Representatives all of the Lock-up Agreements, in form and
substance satisfactory to Greenberg Traurig, P.A., counsel to the several
Underwriters.
(o) On or before the First Closing Date, the Company shall have
executed and delivered to Ryan Beck the financial advisory agreement,
substantially in the form filed as an exhibit to the Registration Statement (the
"Financial Advisory Agreement").
19
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to counsel
for the Underwriters.
SECTION 8. SUBSTITUTION OF UNDERWRITERS. If any of the Underwriters
shall for any reason not permitted hereunder cancel their obligations to
purchase the Firm Shares hereunder, or shall fail to take up and pay for the
number of Firm Shares set forth opposite their respective names in Schedule A
hereto upon tender of such Firm Shares in accordance with the terms hereof,
then:
(a) If the aggregate number of Firm Shares which such Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
number of Firm Shares, the other Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Firm
Shares which such defaulting Underwriter or Underwriters agreed but failed to
purchase.
(b) If any Underwriter or Underwriters so default and the agreed number
of Firm Shares with respect to which such default or defaults occurs is more
than 10% of the total number of Firm Shares, the remaining Underwriters shall
have the right to take up and pay for (in such proportion as may be agreed upon
among them) the Firm Shares which the defaulting Underwriter or Underwriters
agreed but failed to purchase. If such remaining Underwriters do not, at the
First Closing Date, take up and pay for the Firm Shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase, the time for delivery
of the Firm Shares shall be extended to the next business day to allow the
remaining Underwriters the privilege of substituting within twenty-four hours
(including nonbusiness hours) another underwriter or underwriters reasonably
satisfactory to the Company. If no such underwriter or underwriters shall have
been substituted as aforesaid, within such twenty-four hour period, the time of
delivery of the Firm Shares may, at the option of the Company, be again extended
to the next following business day, if necessary, to allow the Company the
privilege of finding within thirty-six hours (including nonbusiness hours)
another underwriter or underwriters to purchase the Firm Shares which the
defaulting Underwriter or Underwriters agreed but failed to purchase. If it
shall be arranged for the remaining Underwriters or substituted Underwriters to
take up the Firm Shares of the defaulting Underwriter or Underwriters as
provided in this Section 8, (i) the Company or the other Underwriters shall have
the right to postpone the time of delivery for a period of not more than seven
business days, in order to effect whatever changes may thereby be made necessary
in the Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees promptly to file any amendments to the
Registration Statement or supplements to the Prospectus which may thereby be
made necessary, and (ii) the respective numbers of Firm Shares to be purchased
by the remaining Underwriters or substituted Underwriters shall be taken as the
basis of the underwriting obligation for all purposes of this Agreement.
If a default by one or more Underwriters shall occur and the remaining
Underwriters shall not take up and pay for all the Firm Shares agreed to be
purchased by the defaulting Underwriters or substitute another underwriter or
underwriters as aforesaid, and the Company
20
shall not find or shall not elect to seek another underwriter or underwriters
for such Firm Shares as aforesaid, then this Agreement shall terminate.
If, following exercise of the option provided in Section 2(b) hereof,
any Underwriter or Underwriters shall for any reason not permitted hereunder
cancel their obligations to purchase Option Shares at the Option Closing Date,
or shall fail to take up and pay for the number of Option Shares, which they
become obligated to purchase at the Option Closing Date upon tender of such
Option Shares in accordance with the terms hereof, then the remaining
Underwriters or substituted Underwriters may take up and pay for the Option
Shares of the defaulting Underwriters in the manner provided in this Section
8(b). If the remaining Underwriters or substituted Underwriters shall not take
up and pay for all such Option Shares, the Underwriters shall be entitled to
purchase the number of Option Shares for which there is no default or, at their
election, the option shall terminate, and the exercise thereof shall be of no
effect.
As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 8. In the event of
termination, there shall be no liability on the part of any nondefaulting
Underwriter to the Company, provided that the provisions of this Section 8 shall
not in any event affect the liability of any defaulting Underwriter to the
Company arising out of such default.
SECTION 9. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Underwriter,
its officers and employees, each of its directors, its affiliates, as defined in
Rule 405 under the Securities Act, and each person, if any, who controls any
Underwriter within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Shares), to which such Underwriter, director,
officer, employee, affiliate, or controlling person may become subject, under
the Securities Act or any applicable federal or state law, or otherwise, insofar
as such loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto, (ii) the omission or
alleged omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the statements
therein not misleading or (iii) any act or failure to act or any alleged act or
failure to act by such Underwriter in connection with, or relating in any manner
to, the Shares or the offering contemplated hereby, and which is included as
part of or referred to in any loss, claim, damage, liability or action arising
out of or based upon matters covered by clause (i) or (ii) above (provided that
the Company shall not be liable under this clause (iii) to the extent that it is
determined in a final, non-appealable judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such acts or failures to act undertaken or omitted to be taken
by such Underwriter through its gross negligence or willful misconduct), and
shall reimburse such Underwriter and each such director, officer, employee,
affiliate or controlling person promptly upon demand for any legal or other
expenses reasonably
21
incurred by such Underwriter, director, officer, employee, affiliate, or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or in any such amendment or
supplement, in reliance upon and in conformity with written information
concerning such Underwriter furnished to the Company by or on behalf of such
Underwriter specifically for inclusion therein, which information consists
solely of the information specified in Section 9(f), and provided further that
as to any Preliminary Prospectus, this indemnity agreement shall not inure to
the benefit of such Underwriter, its directors, officers, affiliates or
employees, or any person controlling the Underwriter, on account of any loss,
claim, damage, liability or action arising from the sale of the Shares to any
person by such Underwriter if such Underwriter failed to send or give a copy of
the Prospectus, as the same may be amended or supplemented, to that person
within the time required by the Securities Act, and the untrue statement or
alleged untrue statement of any material fact or omission or alleged omission to
state a material fact in such Preliminary Prospectus was corrected in the
Prospectus, unless such failure resulted from non-compliance by the Company with
Section 5(c). The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to such Underwriter or to any officer,
director, affiliate, employee or controlling person of such Underwriter.
In the event that an Underwriter is required or requested to appear as
a witness in any action brought by or on behalf of or against the Company in
which such Underwriter is not named as a defendant, the Company agrees to
promptly reimburse such Underwriter on a monthly basis for all expenses incurred
by it in connection with such Underwriter's appearing and preparing to appear as
such a witness, including, without limitation, the reasonable fees and
disbursements of its legal counsel. In addition to any reimbursed fees, expenses
or costs hereunder, such Underwriter shall also receive from the Company cash
compensation of $2,000 per person, per day, plus reasonable out-of-pocket
expenses and costs should the Underwriter be required to provide testimony in
any formal or informal proceeding regarding the Company in which such
Underwriter is not named as a defendant.
(b) Each Underwriter, severally, but not jointly, shall indemnify and
hold harmless the Company, its officers and employees, each of its directors,
its affiliates, and each person, if any, who controls the Company within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company or any such director, officer or controlling person may become subject,
under the Securities Act or any applicable federal or state law, or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto, or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, the Registration
Statement, the Prospectus, or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the
22
extent that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company by or on behalf
of such Underwriter specifically for inclusion therein, which information
consists solely of the information specified in Section 9(f), and shall
reimburse the Company and any such director, officer, affiliate or controlling
person for any legal or other expenses reasonably incurred by the Company or any
such director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which such Underwriter may otherwise have to the
Company or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 9
of notice of any intention or threat to commence an action, suit or proceeding
or notice of the commencement of any action, suit or proceeding, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9, promptly notify the indemnifying party
in writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 9 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 9.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all such indemnified
parties, which firm shall be designated in writing by the Underwriters, if the
indemnified parties under this Section 9 consist of the Underwriters or
23
the Underwriters' officers, employees or controlling persons, or by the Company,
if the indemnified parties under this Section 9 consist of the Company or any of
the Company's directors, officers, employees or controlling persons. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise, consent or judgment includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding, or (ii) be liable for any settlement
of any such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with the consent of the indemnifying
party or if there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 9 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 9(a) or 9(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the Company
on the one hand and the Underwriters on the other from the offering of the
Shares 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 on the one hand and the Underwriters on the other with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds (before deducting
expenses) from the offering of the Shares purchased under this Agreement
received by the Company on the one hand, and the total underwriting discounts
and commissions received by the Underwriters with respect to the Shares
purchased under this Agreement on the other hand bear to the total gross
proceeds from the offering of the Shares under this Agreement, in each case as
described on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
Section 9 were to be determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 9 shall be deemed to include, for purposes of
this Section 9(d), any legal or other
24
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9(d), the Company agrees that no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public was
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise paid or become liable to pay by reason of any 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 Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) If multiple claims are brought with respect to at least one of
which indemnification is permitted under applicable law and provided for under
this Agreement, the indemnifying party agrees that any judgment award shall be
conclusively deemed to be based on claims as to which indemnification is
permitted and provided for, except to the extent the judgment award expressly
states that it, or any portion thereof, is based solely on a claim as to which
indemnification is not available.
(f) The Underwriters confirm and the Company acknowledges that the
statements with respect to the public offering of the Shares by the Underwriters
set forth under the caption "Underwriting" in the Prospectus are correct and
constitute the only information concerning the Underwriters furnished in writing
to the Company by or on behalf of the Underwriters specifically for inclusion in
the Registration Statement and the Prospectus.
SECTION 10. TERMINATION.
(a) The obligations of the Underwriters hereunder may be terminated by
the Underwriters by notice given to and received by the Company prior to
delivery of and payment for the Shares if, prior to the First Closing Date or
the Option Closing Date, any of the events described in Sections 7(h) or 7(i),
shall have occurred or if the Underwriters shall decline to purchase the Shares
because any condition to the obligations of the Underwriters set forth herein is
not satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof.
(b) Termination of this Agreement under this Section 10 or Section 7
after the Shares have been purchased by the Underwriters hereunder shall be
applicable only to the Option Shares. Termination of this Agreement shall be
without liability of any party to any other party other than as provided in
Sections 6, 9 and 12 hereof. Notwithstanding any such termination, the
provisions of Sections 6, 9 and 12 hereof shall remain in effect.
SECTION 11. DEFAULT BY THE COMPANY. If the Company shall fail at the
Closing Date or at any Option Closing Date, as applicable, to sell and deliver
the number of Shares which it is obligated to sell hereunder on such date, then
this Agreement shall terminate (or, if such default shall occur with respect to
any Option Shares to be purchased on an Option Closing Date, the Underwriters
may at the Underwriters' option, by notice from the Underwriters to the Company,
terminate the Underwriters' obligation to purchase Option Shares from the
Company on such date) without any liability on the part of any non-defaulting
party other than pursuant to
25
Section 6, Section 9 and Section 10 hereof. No action taken pursuant to this
Section shall relieve the Company from liability, if any, in respect of such
default.
SECTION 12. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Company
shall fail to tender the Shares for delivery to the Underwriters by reason of
any failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
incurred by the Underwriters in connection with this Agreement and the proposed
purchase of the Shares (less the amounts paid to the Underwriters through such
date as set forth in Section 6(a)), and upon demand, the Company shall pay the
full amount thereof to the Underwriters. If this Agreement is terminated
pursuant to Section 10 by reason of the default of the Underwriters, the Company
shall not be obligated to reimburse the Underwriters on account of any such
expenses.
SECTION 13. NOTICES, ETC. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to Ryan Beck & Co., Inc., 650 Madison Avenue, New
York, New York 10022, Attention: Michael Kollender (Fax: 212-407-0898) and to
BB&T Capital Markets, 909 East Main Street, PO Box 1575, Richmond, Virginia
23218, Attention: Jim A. Tyler, Jr. (Fax: 804-643-9327), with a copy to Gary
Epstein, Esq., Greenberg Traurig, P.A., 1221 Brickell Avenue, Miami, Florida
33131 (Fax: 305-579-0717) or (b) if to the Company, shall be delivered or sent
by mail, telex or facsimile transmission to the address of the Company set forth
in the Registration Statement, Attention: Peter Edison, with a copy to J. Mark
Klamer, Esq., Bryan Cave LLP, 211 North Broadway, Suite 3600, St. Louis,
Missouri 63102 (Fax: 314-259-2020). Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof.
SECTION 14. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Company
and their respective representatives and successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that (A) the representations, warranties, indemnities and agreements of
the Company contained in this Agreement shall also be deemed to be for the
benefit of directors, officers and employees of any Underwriter, and the person
or persons, if any, who control any Underwriter within the meaning of Section 15
of the Securities Act and (B) the indemnity agreement of the Underwriters
contained in Section 10(b) of this Agreement shall be deemed to be for the
benefit of directors, officers and employees of the Company, and any person
controlling the Company within the meaning of Section 15 of the Securities Act.
Nothing in this Agreement is intended or shall be construed to give any person,
other than the persons referred to in this Section 14 any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
SECTION 15. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in this
Agreement or made by or on behalf on them, respectively, pursuant to this
Agreement, shall survive the delivery of and
26
payment for the Shares and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any one controlling any
of them.
SECTION 16. DEFINITION OF THE TERMS "BUSINESS DAY". For purposes of
this Agreement, "business day" means each Monday, Tuesday, Wednesday, Thursday
or Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
SECTION 17. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of New York.
SECTION 18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 19. HEADINGS. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
SECTION 20. ENTIRE AGREEMENT; MODIFICATION. This Agreement (together
with the Warrant Agreement and the Financial Advisory Agreement) contains the
entire understanding between the parties hereto with respect to the subject
matter hereof and replaces any prior written agreement between the parties
hereto with respect to the subject matter hereof. This Agreement may not be
modified or amended except by a writing duly signed by the party against whom
enforcement of the modification or amendment is sought.
27
If the foregoing correctly sets forth the agreement among the Company
and the Underwriters, please indicate your acceptance in the space provided for
that purpose below.
Very truly yours,
BAKERS FOOTWEAR GROUP, INC.
By:
-----------------------------------------
Name: Peter A. Edison
Title: Chairman and Chief Executive Officer
Accepted as Representatives of the Several
Underwriters:
RYAN BECK & CO., INC.
By:
-----------------------------------------
Name: Michael J. Kollender
Title: Managing Director
BB&T Capital Markets
By:
-----------------------------------------
Name: Jim A. Tyler, Jr.
Title: Senior Vice President
and Head of Syndicate
28
SCHEDULE A
Name of Underwriter Number of Firm Shares
Ryan Beck & Co., Inc.
BB&T Capital Markets
29
[Exhibit A form of Lock-up Agreement and Exhibit B form of opinion of Bryan
Cave LLP omitted. The Registrant undertakes to furnish supplementally a copy
of such exhibits to the Commission upon request.]