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Draft of May 3, 1995
2,000,000 Shares
UNO RESTAURANT CORPORATION
Common Stock
UNDERWRITING AGREEMENT
__________, 1995
MONTGOMERY SECURITIES
600 Montgomery Street
San Francisco, California 94111
As Representative of the several Underwriters
Dear Sirs:
SECTION 1. Introductory. Uno Restaurant Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell 2,000,000
shares of its authorized but unissued Common Stock (the "Common Stock")
to the several underwriters named in Schedule A annexed hereto (the
"Underwriters"), for whom you are acting as Representative. Said
aggregate of 2,000,000 shares are herein called the "Firm Common
Shares." In addition, the Company proposes to grant to the Underwriters
an option to purchase up to 300,000 additional shares of Common Stock
(the "Optional Common Shares"), as provided in Section 5 hereof. The
Firm Common Shares and, to the extent such option is exercised, the
Optional Common Shares are hereinafter collectively referred to as the
"Common Shares."
You have advised the Company that the Underwriters propose to make
a public offering of their respective portions of the Common Shares on
the effective date of the registration statement hereinafter referred
to, or as soon thereafter as in your judgment is advisable.
The Company hereby confirms its agreements with respect to the
purchase of the Common Shares by the Underwriters as follows:
SECTION 2. Representations and Warranties of the Company. The
Company hereby represents and warrants to the several Underwriters
that:
(a) A registration statement on Form S-2 (File No.
33- ) with respect to the Common Shares has been prepared by
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the Company in conformity with the requirements of the Securities
Act of 1933, as amended (the "Act"), and the rules and regulations
(the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder, and has been filed with
the Commission. The Company has prepared and has filed or proposes
to file prior to the effective date of such registration statement
an amendment or amendments to such registration statement, which
amendment or amendments have been or will be similarly prepared.
There have been delivered to you two signed copies of such
registration statement and amendments, together with two copies of
each exhibit filed therewith. Conformed copies of such
registration statement and amendments (but without exhibits) and
of the related preliminary prospectus have been delivered to you
in such reasonable quantities as you have requested for each of
the Underwriters. The Company will next file with the Commission
one of the following: (i) prior to effectiveness of such
registration statement, a further amendment thereto, including the
form of final prospectus, or (ii) a final prospectus in accordance
with Rules 430A and 424(b) of the Rules and Regulations. As filed,
such amendment and form of final prospectus, or such final
prospectus, shall include all Rule 430A Information and, except to
the extent that you shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you
prior to the date and time that this Agreement was executed and
delivered by the parties hereto, or, to the extent not completed
at such date and time, shall contain only such specific additional
information and other changes (beyond that contained in the latest
Preliminary Prospectus) as the Company shall have previously
advised you in writing would be included or made therein.
The term "Registration Statement" as used in this Agreement
shall mean such registration statement at the time such
registration statement becomes effective and, in the event any
post-effective amendment thereto becomes effective prior to the
First Closing Date (as hereinafter defined), shall also mean such
registration statement as so amended; provided, however, that such
term shall also include all Rule 430A Information deemed to be
included in such registration statement at the time such
registration statement becomes effective as provided by Rule 430A
of the Rules and Regulations. The term "Preliminary Prospectus"
shall mean any preliminary prospectus referred to in the preceding
paragraph and any preliminary prospectus included in the
Registration Statement at the time it becomes effective that omits
Rule 430A Information. The term "Prospectus" as used in this
Agreement shall mean the prospectus relating to the
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Common Shares in the form in which it is first filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations
or, if no filing pursuant to Rule 424(b) of the Rules and
Regulations is required, shall mean the form of final prospectus
included in the Registration Statement at the time such
registration statement becomes effective. The term "Rule 430A
Information" means information with respect to the Common Shares
and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule
430A of the Rules and Regulations. Any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Form S-2 under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be.
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus, and each
Preliminary Prospectus has conformed in all material respects to
the requirements of the Act and the Rules and Regulations and, as
of its date, has not included any untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and at the time the Registration
Statement becomes effective, and at all times subsequent thereto
up to and including each Closing Date hereinafter mentioned, the
Registration Statement and the Prospectus, and any amendments or
supplements thereto, will contain all material statements and
information required to be included therein by the Act and the
Rules and Regulations and will in all material respects conform to
the requirements of the Act and the Rules and Regulations, and
neither the Registration Statement nor the Prospectus, nor any
amendment or supplement thereto, will include any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, no representation or warranty
contained in this subsection 2(b) shall be applicable to
information contained in or omitted from any Preliminary
Prospectus, the Registration Statement, the Prospectus or any such
amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by or on behalf of
any Underwriter, directly or through the Representative,
specifically for use in the preparation thereof. The documents
incorporated by reference in the Prospectus, when they were filed
with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of
the Commission thereunder, and,
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when filed, none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
(c) The Company does not own or control, directly or
indirectly, any corporation, association or other entity other
than the subsidiaries listed in Exhibit 21 to the Annual Report on
Form 10-K for the Company's most recent fiscal year. The Company
and each of its subsidiaries have been duly incorporated and are
validly existing as corporations in good standing under the laws
of their respective jurisdictions of incorporation, with full
power and authority (corporate and other) to own and lease their
properties and conduct their respective businesses as described in
the Prospectus; the Company owns all of the outstanding capital
stock of its subsidiaries free and clear of all claims, liens,
charges and encumbrances; the Company and each of its subsidiaries
are in possession of and operating in compliance with all
authorizations, licenses, permits, consents, certificates and
orders material to the conduct of their respective businesses, all
of which are valid and in full force and effect; the Company and
each of its subsidiaries are duly qualified to do business and in
good standing as foreign corporations in each jurisdiction in
which the ownership or leasing of properties or the conduct of
their respective businesses requires such qualification, except
for jurisdictions in which the failure to so qualify would not
have a material adverse effect upon the Company and its
subsidiaries, taken as a whole; and no proceeding has been
instituted in any such jurisdiction, revoking, limiting or
curtailing, or seeking to revoke, limit or curtail, such power and
authority or qualification.
(d) The Company has an authorized and outstanding capital
stock as set forth under the heading "Capitalization" in the
Prospectus; the issued and outstanding shares of Common Stock have
been duly authorized and validly issued, are fully paid and
nonassessable, are duly listed on the New York Stock Exchange,
have been issued in compliance with all federal and state
securities laws, were not issued in violation of or subject to any
preemptive rights or other rights to subscribe for or purchase
securities, and conform to the description thereof contained in
the Prospectus. All issued and outstanding shares of capital stock
of each subsidiary of the Company have been duly authorized and
validly issued and are fully paid and nonassessable. Except as
disclosed in or contemplated by the Prospectus and the financial
statements of the Company, and the related notes
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thereto, included in the Prospectus, neither the Company nor any
subsidiary has outstanding any options to purchase, or any
preemptive rights or other rights to subscribe for or to purchase,
any securities or obligations convertible into, or any contracts
or commitments to issue or sell, shares of its capital stock or
any such options, rights, convertible securities or obligations.
The description of the Company's stock option, stock bonus and
other stock plans or arrangements, and the options or other rights
granted and exercised thereunder, set forth in the Prospectus
accurately and fairly presents the information required to be
shown with respect to such plans, arrangements, options and
rights.
(e) The Common Shares to be sold by the Company have been
duly authorized and, when issued, delivered and paid for in the
manner set forth in this Agreement, will be duly authorized,
validly issued, fully paid and nonassessable, and will conform to
the description thereof contained in the Prospectus. No preemptive
rights or other rights to subscribe for or purchase exist with
respect to the issuance and sale of the Common Shares by the
Company pursuant to this Agreement. No stockholder of the Company
has any right which has not been waived to require the Company to
register the sale of any shares owned by such stockholder under
the Act in the public offering contemplated by this Agreement. No
further approval or authority of the stockholders or the Board of
Directors of the Company will be required for the issuance and
sale of the Common shares to be sold by the Company as
contemplated herein.
(f) The Company has full legal right, power and authority to
enter into this Agreement and perform the transactions
contemplated hereby. This Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and
binding obligation of the Company in accordance with its terms.
The making and performance of this Agreement by the Company and
the consummation of the transactions herein contemplated will not
violate any provisions of the certificate of incorporation or
bylaws, or other organizational documents, of the Company or any
of its subsidiaries, and will not conflict with, result in the
breach or violation of, or constitute, either by itself or upon
notice or the passage of time or both, a default under any
agreement, mortgage, deed of trust, lease, franchise, license,
indenture, permit or other instrument to which the Company or any
of its subsidiaries is a party or by which the Company or any of
its subsidiaries or any of its respective properties may be bound
or affected, any statute or any authorization, judgment, decree,
order, rule or regulation of
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any court or any regulatory body, administrative agency or other
governmental body applicable to the Company or any of its
subsidiaries or any of their respective properties. No consent,
approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body is required
for the execution and delivery of this Agreement or the
consummation of the transactions contemplated by this Agreement,
except for compliance with the Act, the Blue Sky laws applicable
to the public offering of the Common Shares by the several
Underwriters and the clearance of such offering with the National
Association of Securities Dealers, Inc. (the "NASD").
(g) Ernst & Young LLP, who have expressed their opinion with
respect to the financial statements and schedules filed with the
Commission as a part of the Registration Statement and included in
the Prospectus and in the Registration Statement, are independent
accountants as required by the Act and the Rules and Regulations.
(h) The financial statements and schedules of the Company,
and the related notes thereto, included in the Registration
Statement and the Prospectus present fairly the financial position
of the Company as of the respective dates of such financial
statements and schedules, and the results of operations and
changes in financial position of the Company for the respective
periods covered thereby. Such statements, schedules and related
notes have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis as certified
by the independent accountants named in subsection 2(g). No other
financial statements or schedules are required to be included in
the Registration Statement. The selected financial data set forth
in the Prospectus under the captions "Capitalization" and
"Selected Financial Data" fairly present the information set forth
therein on the basis stated in the Registration Statement.
(i) Except as disclosed in the Prospectus, and except as to
defaults which individually or in the aggregate would not be
material to the Company, neither the Company nor any of its
subsidiaries is in violation or default of any provision of its
certificate of incorporation or bylaws, or other organizational
documents, or is in breach of or default with respect to any
provision of any agreement, judgment, decree, order, mortgage,
deed of trust, lease, franchise, license, indenture, permit or
other instrument to which it is a party or by which it or any of
its properties are bound; and there does not exist any state of
facts which constitutes
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an event of default on the part of the Company or any such
subsidiary as defined in such documents or which, with notice or
lapse of time or both, would constitute such an event of default.
(j) There are no contracts or other documents required to be
described in the Registration Statement or to be filed as exhibits
to the Registration Statement by the Act or by the Rules and
Regulations which have not been described or filed as required.
The contracts so described in the Prospectus are in full force and
effect on the date hereof; and neither the Company nor any of its
subsidiaries, nor to the best of the Company's knowledge, any
other party is in breach of or default under any of such
contracts.
(k) Except as disclosed in the Prospectus, there are no legal
or governmental actions, suits or proceedings pending or, to the
best of the Company's knowledge, threatened to which the Company
or any of its subsidiaries is or may be a party or of which
property owned or leased by the Company or any of its subsidiaries
is or may be the subject, or related to environmental or
discrimination matters, which actions, suits or proceedings might,
individually or in the aggregate, prevent or adversely affect the
transactions contemplated by this Agreement or result in a
material adverse change in the condition (financial or otherwise),
properties, business, results of operations or prospects of the
Company and its subsidiaries, taken as a whole; and no labor
disturbance by the employees of the Company or any of its
subsidiaries exists or is imminent which might be expected to
affect adversely such condition, properties, business, results of
operations or prospects. Neither the Company nor any of its
subsidiaries is a party or subject to the provisions of any
material injunction, judgment, decree or order of any court,
regulatory body, administrative agency or other governmental body.
(l) The Company or the applicable subsidiary has good and
marketable title to all the properties and assets reflected as
owned in the financial statements hereinabove described (or
elsewhere in the Prospectus), subject to no lien, mortgage,
pledge, charge or encumbrance of any kind except (i) those, if
any, reflected in such financial statements (or elsewhere in the
Prospectus), or (ii) those which are not material in amount and do
not adversely affect the use made and proposed to be made of such
property by the Company and its subsidiaries. The Company or the
applicable subsidiary holds its leased properties under valid and
binding leases, with such exceptions as are not materially
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significant in relation to the business of the Company. Except as
disclosed in the Prospectus, the Company owns or leases all such
properties as are necessary to its operations as now conducted or
as proposed to be conducted.
(m) Since the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as
described in or specifically contemplated by the Prospectus: (i)
the Company and its subsidiaries have not incurred any material
liabilities or obligations, indirect, direct or contingent, or
entered into any material verbal or written agreement or other
transaction which is not in the ordinary course of business; (ii)
the Company and its subsidiaries have not sustained any material
loss or interference with their respective businesses or
properties from fire, flood, windstorm, accident or other
calamity, whether or not covered by insurance; (iii) the Company
has not paid or declared any dividends or other distributions with
respect to its capital stock and the Company and its subsidiaries
are not in default in the payment of principal or interest on any
outstanding debt obligations; (iv) there has not been any change
in the capital stock (other than upon the sale of the Common
Shares hereunder and upon the exercise of options and warrants
described in the Registration Statement) or indebtedness material
to the Company and its subsidiaries (other than in the ordinary
course of business); and (v) there has not been any material
adverse change in the condition (financial or otherwise),
business, properties, results of operations or prospects of the
Company and its subsidiaries.
(n) Except as disclosed in or specifically contemplated by
the Prospectus, the Company and its subsidiaries have sufficient
trademarks, trade names, patent rights, copyrights, licenses,
approvals and governmental authorizations to conduct their
businesses as now conducted; the expiration of any trademarks,
trade names, patent rights, mask works, copyrights, licenses,
approvals or governmental authorizations would not have a material
adverse effect on the condition (financial or otherwise),
business, results of operations or prospects of the Company or its
subsidiaries; and the Company has no knowledge of any material
infringement by it or its subsidiaries of trademark, trade name
rights, patent rights, copyrights, licenses, trade secret or other
similar rights of others, and there is no claim being made against
the Company or its subsidiaries regarding trademark, trade name,
patent, mask work, copyright, license, trade secret or other
infringement which could have a material adverse effect on the
condition (financial or otherwise),
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business, results of operations or prospects of the Company
and its subsidiaries, taken as a whole.
(o) The Company has not been advised, and has no reason to
believe, that either it or any of its subsidiaries is not
conducting business in compliance with all applicable laws, rules
and regulations of the jurisdictions in which it is conducting
business, including, without limitation, all applicable local,
state and federal environmental laws and regulations; except where
failure to be so in compliance would not materially adversely
affect the condition (financial or otherwise), business, results
of operations or prospects of the Company and its subsidiaries,
taken as a whole.
(p) The Company and its subsidiaries have filed all necessary
federal, state and foreign income and franchise tax returns and
have paid all taxes shown as due thereon; and the Company has no
knowledge of any tax deficiency which has been or might be
asserted or threatened against the Company or its subsidiaries
which could materially and adversely affect the business,
operations or properties of the Company and its subsidiaries,
taken as a whole.
(q) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(r) The Company has not distributed and will not distribute
prior to the First Closing Date any offering material in
connection with the offering and sale of the Common Shares other
than the Prospectus, the Registration Statement and the other
materials permitted by the Act.
(s) Each of the Company and its subsidiaries maintains
insurance of the types and in the amounts generally deemed
adequate for its business, including, but not limited to,
insurance covering real and personal property owned or leased by
the Company and its subsidiaries against theft, damage,
destruction, acts of vandalism and all other risks customarily
insured against, all of which insurance is in full force and
effect.
(t) Neither the Company nor any of its subsidiaries has at
any time during the last five years (i) made any unlawful
contribution to any candidate for foreign office, or failed to
disclose fully any contribution in violation of law, or (ii) made
any payment to any federal or state governmental officer or
official, or other person charged with similar
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public or quasi-public duties, other than payments required or
permitted by the laws of the United States of any jurisdiction
thereof.
(u) The Company has not taken and will not take, directly or
indirectly, any action designed to or that might be reasonably
expected to cause or result in stabilization or manipulation of
the price of the Common Stock to facilitate the sale or resale of
the Common Shares.
SECTION 3. Representations and Warranties of the Underwriters. The
Representative, on behalf of the several Underwriters, represents and
warrants to the Company that the information set forth (i) on the cover
page of the Prospectus with respect to price, underwriting discounts
and commissions and terms of offering and (ii) under "Underwriting" in
the Prospectus was furnished to the Company by and on behalf of the
Underwriters for use in connection with the preparation of the
Registration Statement and the Prospectus and is correct in all
material respects. The Representative represents and warrants that it
has been authorized by each of the other Underwriters as the
Representative to enter into this Agreement on its behalf and to act
for it in the manner herein provided.
SECTION 4. Purchase, Sale and Delivery of Common Shares. On the
basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set forth,
the Company agrees to issue and sell the Firm Common Shares to the
Underwriters. The Underwriters agree, severally and not jointly, to
purchase from the Company the number of Firm Common Shares described
below. The purchase price per share to be paid by the several
Underwriters to the Company shall be $_____ per share. The obligation
of each Underwriter to the Company shall be to purchase from the
Company the number of Firm Common Shares set forth opposite the name of
such Underwriter in Schedule A hereto.
Delivery of certificates for the Firm Common Shares to be
purchased by the Underwriters and payment therefor shall be made at the
offices of Montgomery Securities, 600 Montgomery Street, San Francisco,
California (or such other place as may be agreed upon by the Company
and the Representative) at such time and date, not later than the fifth
full business day following the first date that any of the Common
Shares are released by you for sale to the public, as you shall
designate by at least 48 hours prior notice to the Company (the "First
Closing Date"); provided, however, that if the Prospectus is at any
time prior to the First Closing Date recirculated to the public, the
First Closing Date shall occur upon the later of the fifth full
business day following the first date that any of the Common Shares are
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released by you for sale to the public or the date that is 48 hours
after the date that the Prospectus has been so recirculated.
Delivery of certificates for the Firm Common Shares shall be made
by or on behalf of the Company to you, for the respective accounts of
the Underwriters against payment by you, for the accounts of the
several Underwriters, of the purchase price therefor by certified or
official bank checks payable in next day funds to the order of the
Company. The certificates for the Firm Common Shares shall be
registered in such names and denominations as you shall have requested
at least two full business days prior to the First Closing Date, and
shall be made available for checking and packaging on the business day
preceding the First Closing Date at a location in New York, New York,
as may be designated by you. 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 the Underwriters.
In addition, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein set forth, the Company hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to an aggregate
of 300,000 Optional Common Shares at the purchase price per share to be
paid for the Firm Common Shares, for use solely in covering any
over-allotments made by you for the account of the Underwriters in the
sale and distribution of the Firm Common Shares. The option granted
hereunder may be exercised at any time (but not more than once) within
30 days after the first date that any of the Common Shares are released
by you for sale to the public, upon notice by you to the Company
setting forth the aggregate number of Optional Common Shares as to
which the Underwriters are exercising the option, the names and
denominations in which the certificates for such shares are to be
registered and the time and place at which such certificates will be
delivered. Such time of delivery (which may not be earlier than the
First Closing Date), being herein referred to as the "Second Closing
Date," shall be determined by you, but if at any time other than the
First Closing Date shall not be earlier than three nor later than five
full business days after delivery of such notice of exercise. The
number of Optional Common Shares to be purchased by each Underwriter
shall be determined by multiplying the number of Optional Common Shares
to be sold by the Company pursuant to such notice of exercise by a
fraction, the numerator of which is the number of Firm Common Shares to
be purchased by such Underwriter as set forth opposite its name in
Schedule A and the denominator of which is 2,000,000 (subject to such
adjustments to eliminate any fractional share purchases as you in your
discretion may make). Certificates for the Optional Common Shares will
be made available for checking and packaging on
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the business day preceding the Second Closing Date at a location in New
York, New York, as may be designated by you. The manner of payment for
and delivery of the Optional Common Shares shall be the same as for the
Firm Common Shares purchased from the Company as specified in the two
preceding paragraphs. At any time before lapse of the option, you may
cancel such option by giving written notice of such cancellation to the
Company. If the option is cancelled or expires unexercised in whole or
in part, the Company will deregister under the Act the number of Option
Shares as to which the option has not been exercised.
You have advised the Company that each Underwriter has authorized
you to accept delivery of its Common Shares, to make payment and to
receipt therefor. You, individually and not as the Representative of
the Underwriters, may (but shall not be obligated to) make payment for
any Common Shares to be purchased by any Underwriter whose funds shall
not have been received by you by the First Closing Date or the Second
Closing Date, as the case may be, for the account of such Underwriter,
but any such payment shall not relieve such Underwriter from any of its
obligations under this Agreement.
Subject to the terms and conditions hereof, the Underwriters
propose to make a public offering of their respective portions of the
Common Shares as soon after the effective date of the Registration
Statement as in the judgment of the Representative is advisable and at
the public offering price set forth on the cover page of and on the
terms set forth in the Prospectus.
SECTION 5. Covenants of the Company. The Company covenants
and agrees that:
(a) The Company will use its best efforts to cause the
Registration Statement and any amendment thereof, if not effective
at the time and date that this Agreement is executed and delivered
by the parties hereto, to become effective. If the Registration
Statement has become or becomes effective pursuant to Rule 430A of
the Rules and Regulations, or the filing of the Prospectus is
otherwise required under Rule 424(b) of the Rules and Regulations,
the Company will file the Prospectus, properly completed, pursuant
to the applicable paragraph of Rule 424(b) of the Rules and
Regulations within the time period prescribed and will provide
evidence satisfactory to you of such timely filing. The Company
will promptly advise you in writing (i) of the receipt of any
comments of the Commission, (ii) of any request of the Commission
for amendment of or supplement to the Registration Statement
(either before or after it becomes effective), any Preliminary
Prospectus or the
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Prospectus or for additional information, (iii) when the
Registration Statement shall have become effective and (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the institution
of any proceedings for that purpose. If the Commission shall enter
any such stop order at any time, the Company will use its best
efforts to obtain the lifting of such order at the earliest
possible moment. The Company will not file any amendment or
supplement to the Registration Statement (either before or after
it becomes effective), any Preliminary Prospectus or the
Prospectus of which you have not been furnished with a copy a
reasonable time prior to such filing or to which you reasonably
object or which is not in compliance with the Act and the Rules
and Regulations.
(b) The Company will prepare and file with the Commission,
promptly upon your request, any amendments or supplements to the
Registration Statement or the Prospectus which in your judgment
may be necessary or advisable to enable the several Underwriters
to continue the distribution of the Common Shares and will use its
best efforts to cause the same to become effective as promptly as
possible. The Company will fully and completely comply with the
provisions of Rule 430A of the Rules and Regulations with respect
to information omitted from the Registration Statement in reliance
upon such Rule.
(c) If at any time within the nine-month period referred to
in Section 10(a)(3) of the Act during which a prospectus relating
to the Common Shares is required to be delivered under the Act any
event occurs, as a result of which the Prospectus, including any
amendments or supplements, would include an untrue statement of a
material fact, or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, or if it is necessary at any time to amend the
Prospectus, including any amendments or supplements, to comply
with the Act or the Rules and Regulations, the Company will
promptly advise you thereof and will promptly prepare and file
with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an
amendment or supplement which will effect such compliance and will
use its best efforts to cause the same to become effective as soon
as possible; and, in case any Underwriter is required to deliver a
prospectus after such nine-month period, the Company upon request,
but at the expense of such Underwriter, will promptly prepare such
amendment or amendments to the Registration Statement and
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such Prospectus or Prospectuses as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Act.
(d) As soon as practicable, but not later than 45 days after
the end of the first quarter ending after one year following the
"effective date of the Registration Statement" (as defined in Rule
158(c) of the Rules and Regulations), the Company will make
generally available to its security holders an earnings statement
(which need not be audited) covering a period of 12 consecutive
months beginning after the effective date of the Registration
Statement which will satisfy the provisions of the last paragraph
of Section 11(a) of the Act.
(e) During such period as a prospectus is required by law to
be delivered in connection with sales by an Underwriter or dealer,
the Company, at its expense, but only for the nine-month period
referred to in Section 10(a)(3) of the Act, will furnish to you or
mail to your order copies of the Registration Statement, the
Prospectus, the Preliminary Prospectus and all amendments and
supplements to any such documents in each case as soon as
available and in such quantities as you may request, for the
purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in
order to qualify or register the Common Shares for sale under (or
obtain exemptions from the application of) the Blue Sky laws of
such jurisdictions as you designate, will comply with such laws
and will continue such qualifications, registrations and
exemptions in effect so long as reasonably required for the
distribution of the Common Shares. The Company shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any such jurisdiction where it is
not presently qualified or where it would be subject to taxation
as a foreign corporation. The Company will advise you promptly of
the suspension of the qualification or registration of (or any
such exemption relating to) the Common Shares for offering, sale
or trading in any jurisdiction or any initiation or threat of any
proceeding for any such purpose, and in the event of the issuance
of any order suspending such qualification, registration or
exemption, the Company, with your cooperation, will use its best
efforts to obtain the withdrawal thereof.
(g) During the period of five years hereafter, the Company
will furnish to the Representative and, upon request of the
Representative, to each of the other Underwriters:
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(i) as soon as practicable after the end of each fiscal year,
copies of the Annual Report of the Company containing the balance
sheet of the Company as of the close of such fiscal year and
statements of income, stockholders' equity and cash flows for the
year then ended and the opinion thereon of the Company's
independent public accountants; (ii) as soon as practicable after
the filing thereof, copies of each proxy statement, Annual Report
on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or
other report filed by the Company with the Commission, the NASD or
any securities exchange; and (iii) as soon as available, copies of
any report or communication of the Company mailed generally to
holders of its Common Stock.
(h) During the period of 90 days after the first date that
any of the Common Shares are released by you for sale to the
public, without the prior written consent of Montgomery Securities
(which consent may be withheld at the sole discretion of
Montgomery Securities), the Company will not other than pursuant
to outstanding stock options and warrants disclosed in the
Prospectus, issue, offer, sell, grant options to purchase or
otherwise dispose of any of the Company's equity securities or any
other securities convertible into or exchangeable with its Common
Stock or other equity security.
(i) The Company will apply the net proceeds of the sale of
the Common Shares sold by it substantially in accordance with its
statements under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will use its best efforts to qualify or
register its Common Stock for sale in non-issuer transactions
under (or obtain exemptions from the application of) the Blue Sky
laws of the State of California (and thereby permit market making
transactions and secondary trading in the Company's Common Stock
in California), will comply with such Blue Sky laws and will
continue such qualifications, registrations and exemptions in
effect for a period of five years after the date hereof.
(k) The Company will use its best efforts to list, subject to
official notice of issuance, on the New York Stock Exchange, the
Stock to be issued and sold by the Company.
You, on behalf of the Underwriters, may, in your sole discretion,
waive in writing the performance by the Company of any one or more of
the foregoing covenants or extend the time for their performance.
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SECTION 6. Payment of Expenses. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes
effective or is terminated, the Company agrees to pay all costs, fees
and expenses incurred in connection with the performance of its
obligations hereunder and in connection with the transactions
contemplated hereby, including without limiting the generality of the
foregoing, (i) all expenses incident to the issuance and delivery of
the Common Shares (including all printing and engraving costs), (ii)
all fees and expenses of the registrar and transfer agent of the Common
Stock, (iii) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Common Shares to the
Underwriters, (iv) all fees and expenses of the Company's counsel and
the Company's independent accountants, (v) all costs and expenses
incurred in connection with the preparation, printing, filing, shipping
and distribution of the Registration Statement, each Preliminary
Prospectus and the Prospectus (including all exhibits and financial
statements) and all amendments and supplements provided for herein,
this Agreement, the Agreement Among Underwriters, the Selected Dealers
Agreement, the Underwriters' Questionnaire, the Underwriters' Power of
Attorney and the Blue Sky memorandum, (vi) all filing fees, attorneys'
fees and expenses incurred by the Company or the Underwriters in
connection with qualifying or registering (or obtaining exemptions from
the qualification or registration of) all or any part of the Common
Shares for offer and sale under the Blue Sky laws, (vii) the filing fee
of the National Association of Securities Dealers, Inc., and (viii) all
other fees, costs and expenses referred to in Item 14 of the
Registration Statement. Except as provided in this Section 6, Section 8
and Section 10 hereof, the Underwriters shall pay all of their own
expenses, including the fees and disbursements of their counsel
(excluding those relating to qualification, registration or exemption
under the Blue Sky laws and the Blue Sky memorandum referred to above).
SECTION 7. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the
Firm Common Shares on the First Closing Date and the Optional Common
Shares on the Second Closing Date shall be subject to the accuracy of
the representations and warranties on the part of the Company herein
set forth as of the date hereof and as of the First Closing Date or the
Second Closing Date, as the case may be, to the accuracy of the
statements of Company officers made pursuant to the provisions hereof,
to the performance by the Company of its obligations hereunder, and to
the following additional conditions:
(a) The Registration Statement shall have become
effective not later than 5:00 P.M., Washington, D.C. Time, on
the date of this Agreement, or at such later time as shall
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have been consented to by you; if the filing of the Prospectus, or
any supplement thereto, is required pursuant to Rule 424(b) of the
Rules and Regulations, the Prospectus shall have been filed in the
manner and within the time period required by Rule 424(b) of the
Rules and Regulations; and prior to such Closing Date, no stop
order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall
have been instituted or shall be pending or, to the knowledge of
the Company or you, shall be contemplated by the Commission; and
any request of the Commission for inclusion of additional
information in the Registration Statement, or otherwise, shall
have been complied with to your satisfaction.
(b) You shall be satisfied that since the respective dates as
of which information is given in the Registration Statement and
Prospectus, (i) there shall not have been any change in the
capital stock other than pursuant to the exercise of outstanding
options and warrants disclosed in the Prospectus of the Company or
any of its subsidiaries or any material change in the indebtedness
(other than in the ordinary course of business) of the Company or
any of its subsidiaries, (ii) except as set forth or contemplated
by the Registration Statement or the Prospectus, no material
verbal or written agreement or other transaction shall have been
entered into by the Company or any of its subsidiaries, which is
not in the ordinary course of business, (iii) no loss or damage
(whether or not insured) to the property of the Company or any of
its subsidiaries shall have been sustained which materially and
adversely affects the condition (financial or otherwise),
business, results of operations or prospects of the Company and
its subsidiaries, taken as a whole, (iv) no legal or governmental
action, suit or proceeding affecting the Company or any of its
subsidiaries which is material to the Company and its
subsidiaries, taken as a whole, or which affects or may affect the
transactions contemplated by this Agreement shall have been
instituted or threatened and (v) there shall not have been any
material change in the condition (financial or otherwise),
business, management, results of operations or prospects of the
Company and its subsidiaries which makes it impractical or
inadvisable in the judgment of the Representative to proceed with
the public offering or purchase the Common Shares as contemplated
hereby.
(c) There shall have been furnished to you, as
Representative of the Underwriters, on each Closing Date, in
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form and substance satisfactory to you, except as otherwise
expressly provided below:
(i) An opinion of Brown, Rudnick, Freed & Gesmer,
counsel for the Company, addressed to the Underwriters and
dated the First Closing Date, or the Second Closing Date, as
the case may be, to the effect that:
(1) Each of the Company and its subsidiaries has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation, is duly qualified to do
business as a foreign corporation and is in good
standing in all other jurisdictions where the ownership
or leasing of properties or the conduct of its business
requires such qualification, except for jurisdictions in
which the failure to so qualify would not have a
material adverse effect on the Company and its
subsidiaries, taken as a whole, and has full corporate
power and authority to own its properties and conduct
its business as described in the Registration Statement;
(2) The authorized, issued and outstanding capital
stock of the Company is as set forth under the caption
"Capitalization" in the Prospectus; all necessary and
proper corporate proceedings have been taken in order to
authorize validly such authorized Common Stock; all
outstanding shares of Common Stock have been duly and
validly issued, are fully paid and nonassessable, were
not issued in violation of or subject to any preemptive
rights or other similar rights to subscribe for or
purchase any securities and conform to the description
thereof contained in the Prospectus;
(3) All of the issued and outstanding shares of the
Company's subsidiaries have been duly and validly
authorized and issued, are fully paid and nonassessable
and, to the knowledge of such counsel, are owned
beneficially by the Company free and clear of all liens,
encumbrances and adverse claims;
(4) The certificates evidencing the Common Shares
to be delivered hereunder are in due and proper form
under Delaware law, and when duly countersigned by the
Company's transfer agent and
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registrar, and delivered to you or upon your order
against payment of the agreed consideration therefor in
accordance with the provisions of this Agreement, the
Common Shares represented thereby will be duly
authorized and validly issued, fully paid and
nonassessable, will not have been issued in violation of
or subject to any preemptive rights or other similar
rights to subscribe for or purchase securities and will
conform in all respects to the description thereof
contained in the Prospectus;
(5) Except as disclosed in or specifically
contemplated by the Prospectus, to such counsel's
knowledge, there are no outstanding options, warrants or
other rights calling for the issuance of, and no
commitments, plans or arrangements to issue, any shares
of capital stock of the Company or any security
convertible into or exchangeable for capital stock of
the Company;
(6)(a) The Registration Statement has become
effective under the Act, and, to the best of such
counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or
preventing the use of the Prospectus has been issued and
no proceedings for that purpose have been instituted or
are pending or contemplated by the Commission; any
required filing of the Prospectus and any supplement
thereto pursuant to Rule 424(b) of the Rules and
Regulations has been made in the manner and within the
time period required by such Rule 424(b);
(b) The Registration Statement, the Prospectus and
each amendment or supplement thereto (except for the
financial statements and schedules and financial data
included therein as to which such counsel need express
no opinion) comply as to form in all material respects
with the requirements of the Act and the Rules and
Regulations.
(c) To such counsel's knowledge, there are no
franchises, leases, contracts, agreements or documents
of a character required to be disclosed in the
Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not
disclosed or filed, as required;
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(d) To such counsel's knowledge, there are no legal
or governmental actions, suits or proceedings pending or
threatened against the Company which are required to be
described in the Prospectus which are not described as
required; and
(e) The documents incorporated by reference in the
Prospectus (except for any financial statements and
schedules and financial data included in such documents
as to which such counsel need express no opinion), when
they were filed with the Commission, complied as to form
in all material respects with the requirements of the
Exchange Act and the rules and regulations of the
Commission thereunder;
(7) The Company has full right, power and authority
to enter into this Agreement and to sell and deliver the
Common Shares to be sold by it to the several
Underwriters; this Agreement has been duly and validly
authorized by all necessary corporate action by the
Company, has been duly and validly executed and
delivered by and on behalf of the Company, and is a
valid and binding agreement of the Company in accordance
with its terms, except as enforceability may be limited
by general equitable principles, bankruptcy, insolvency,
reorganization, moratorium or other laws affecting
creditors' rights generally and except as to those
provisions relating to indemnity or contribution for
liabilities arising under the Act as to which no opinion
need be expressed; and no approval, authorization,
order, consent, registration, filing, qualification,
license or permit of or with any court, regulatory,
administrative or other governmental body is required
for the execution and delivery of this Agreement by the
Company or the consummation of the transactions
contemplated by this Agreement, except such as have been
obtained and are in full force and effect under the Act
and such as may be required under applicable Blue Sky
laws in connection with the purchase and distribution of
the Common Shares by the Underwriters and the clearance
of such offering with the NASD;
(8) The execution and performance of this Agreement
and the consummation of the transactions herein
contemplated will not conflict with, result in the
breach of, or constitute, either by itself
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or upon notice or the passage of time or both, a default
under, any agreement, mortgage, deed of trust, lease,
franchise, license, indenture, permit or other
instrument known to such counsel to which the Company or
any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or any of its or
their property may be bound or affected which is
material to the Company and its subsidiaries, or violate
any of the provisions of the certificate of
incorporation or bylaws, or other organizational
documents, of the Company or any of its subsidiaries or,
so far as is known to such counsel, violate any statute,
judgment, decree, order, rule or regulation of any court
or governmental body having jurisdiction over the
Company or any of its subsidiaries or any of its or
their property;
(9) To such counsel's knowledge, neither the
Company nor any subsidiary is in violation of its
certificate of incorporation or bylaws;
(10) To such counsel's knowledge, no holders of
securities of the Company have rights which have not
been waived to the registration of shares of Common
Stock or other securities, because of the filing of the
Registration Statement by the Company or the offering
contemplated hereby;
In rendering such opinion, such counsel may rely, as to
matters of local law, on opinions of local counsel, and as to
matters of fact, on certificates of officers of the Company
and of governmental officials, in which case their opinion is
to state that they are so doing and that the Underwriters are
justified in relying on such opinions or certificates and
copies of said opinions or certificates are to be attached to
the opinion. Such counsel shall also include a statement to
the effect that nothing has come to such counsel's attention
that would lead such counsel to believe that either at the
effective date of the Registration Statement or at the
applicable Closing Date the Registration Statement or the
Prospectus, or any such amendment or supplement, contains any
untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading (except that no
such
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statement need be made with respect to the financial
statements and schedules and financial data included
therein);
(ii) Such opinion or opinions of Hale and Dorr, counsel
for the Underwriters dated the First Closing Date or the
Second Closing Date, as the case may be, with respect to the
incorporation of the Company, the sufficiency of all
corporate proceedings and other legal matters relating to
this Agreement, the validity of the Common Shares, the
Registration Statement and the Prospectus and other related
matters as you may reasonably require, and the Company shall
have furnished to such counsel such documents and shall have
exhibited to them such papers and records as they may
reasonably request for the purpose of enabling them to pass
upon such matters. In connection with such opinions, such
counsel may rely on representations or certificates of
officers of the Company and governmental officials.
(iii) A certificate of the Company executed by the
Chairman of the Board or President and the chief financial or
accounting officer of the Company, dated the First Closing
Date or the Second Closing Date, as the case may be, to the
effect that:
(1) The representations and warranties of the
Company set forth in Section 2 of this Agreement are
true and correct as of the date of this Agreement and as
of the First Closing Date or the Second Closing Date, as
the case may be, and the Company has complied with all
the agreements and satisfied all the conditions on its
part to be performed or satisfied on or prior to such
Closing Date;
(2) The Commission has not issued any order
preventing or suspending the use of the Prospectus or
any Preliminary Prospectus filed as a part of the
Registration Statement or any amendment thereto; no stop
order suspending the effectiveness of the Registration
Statement has been issued; and to the best of the
knowledge of the respective signers, no proceedings for
that purpose have been substituted or are pending or
contemplated under the Act;
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(3) Each of the respective signers of the
certificate has carefully examined the Registration
Statement and the Prospectus; in his opinion and to the
best of his knowledge, the Registration Statement and
the Prospectus and any amendments or supplements thereto
contain all statements required to be stated therein
regarding the Company and its subsidiaries; and neither
the Registration Statement nor the Prospectus nor any
amendment or supplement thereto includes any untrue
statement of a material fact or omits to state any
material fact required to be stated therein or necessary
to make the statements therein not misleading;
(4) Since the initial date on which the
Registration Statement was filed, no agreement, written
or oral, transaction or event has occurred which should
have been set forth in an amendment to the Registration
Statement or in a supplement to or amendment of any
prospectus which has not been disclosed in such a
supplement or amendment;
(5) Since the respective dates as of which
information is given in the Registration Statement and
the Prospectus, and except as disclosed in or
contemplated by the Prospectus, there has not been any
material adverse change or a development involving a
material adverse change in the condition (financial or
otherwise), business, properties, results of operations,
management or prospects of the Company and its
subsidiaries; and no legal or governmental action, suit
or proceeding is pending or threatened against the
Company or any of its subsidiaries which is material to
the Company and its subsidiaries, whether or not arising
from transactions in the ordinary course of business, or
which may adversely affect the transactions contemplated
by this Agreement; since such dates and except as so
disclosed, neither the Company nor any of its
subsidiaries has entered into any verbal or written
agreement or other transaction which is not in the
ordinary course of business or incurred any material
liability or obligation, direct, contingent or indirect,
made any change in its capital stock, made any material
change in its short-term debt or funded debt or
repurchased or otherwise acquired any of the Company's
capital stock; and the Company has not declared or paid
any dividend, or made any other
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distribution, upon its outstanding capital stock payable
to stockholders of record on a date prior to the First
Closing Date or Second Closing Date; and
(6) Since the respective dates as of which
information is given in the Registration Statement and
the Prospectus and except as disclosed in or
contemplated by the Prospectus, the Company and its
subsidiaries have not sustained a material loss or
damage by strike, fire, flood, windstorm, accident or
other calamity (whether or not insured).
(iv) On the date before this Agreement is executed and
also on the First Closing Date and the Second Closing Date a
letter addressed to you, as Representative of the
Underwriters, from Ernst & Young LLP, independent
accountants, the first one to be dated the day before the
date of this Agreement, the second one to be dated the First
Closing Date and the third one (in the event of a Second
Closing) to be dated the Second Closing Date, in form and
substance satisfactory to you.
(v) On or before the First Closing Date, letters from
each director and officer of the Company, [, and
________________________] in form and substance satisfactory
to you, confirming that for a period of 90 days after the
first date that any of the Common Shares are released by you
for sale to the public, such person will not directly or
indirectly sell or offer to sell or otherwise dispose of any
shares of Common Stock or any right to acquire such shares
without the prior written consent of Montgomery Securities,
which consent may be withheld at the sole discretion of
Montgomery Securities.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory to
you and to Hale and Dorr, counsel for the Underwriters. The Company
shall furnish you with such manually signed or conformed copies of such
opinions, certificates, letters and documents as you request. Any
certificate signed by any officer of the Company and delivered to the
Representative or to counsel for the Underwriters shall be deemed to be
a representation and warranty by the Company to the Underwriters as to
the statements made therein.
If any condition to the Underwriters' obligations hereunder
to be satisfied prior to or at the First Closing Date is not so
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satisfied, this Agreement at your election will terminate upon
notification by you as Representative to the Company without liability
on the part of any Underwriter or the Company except for the expenses
to be paid or reimbursed by the Company pursuant to Sections 6 and 8
hereof and except to the extent provided in Section 10 hereof.
SECTION 8. Reimbursement of Underwriters' Expenses.
Notwithstanding any other provisions hereof, if this Agreement shall be
terminated by you pursuant to Section 7, or if the sale to the
Underwriters of the Common Shares at the First Closing is not
consummated because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or to comply with any
provision hereof, the Company agrees to reimburse you and the other
Underwriters upon demand for all out-of-pocket expenses that shall have
been reasonably incurred by you and them in connection with the
proposed purchase and the sale of the Common Shares, including but not
limited to fees and disbursements of counsel, printing expenses, travel
expenses, postage, telegraph charges and telephone charges relating
directly to the offering contemplated by the Prospectus. Any such
termination shall be without liability of any party to any other party
except that the provisions of this Section, Section 6 and Section 10
shall at all times be effective and shall apply.
SECTION 9. Effectiveness of Registration Statement. You and the
Company will use your and its best efforts to cause the Registration
Statement to become effective, to prevent the issuance of any stop
order suspending the effectiveness of the Registration Statement and,
if such stop order be issued, to obtain as soon as possible the lifting
thereof.
SECTION 10. Indemnification. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of the Act against any
losses, claims, damages, liabilities or expenses, joint or several, to
which such Underwriter or such controlling person may become subject,
under the Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or other federal or state statutory law or regulation,
or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of
the Company), insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof as contemplated below) arise
out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement,
any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state in any of them a material fact
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required to be stated therein or necessary to make the statements in
any of them not misleading, or arise out of or are based in whole or in
part on any inaccuracy in the representations and warranties of the
Company contained herein or any failure of the Company to perform its
obligations hereunder or under law; and will reimburse each Underwriter
and each such controlling person for any legal and other expenses as
such expenses are reasonably incurred by such Underwriter or such
controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim,
damage, liability or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto in reliance upon and
in conformity with the information furnished to the Company pursuant to
Section 3 hereof. In addition to its other obligations under this
Section 10(a), the Company agrees that, as an interim measure during
the pendency of any claim, action, investigation, inquiry or other
proceeding arising out of or based upon any statement or omission, or
any alleged statement or omission, or any inaccuracy in the
representations and warranties of the Company herein or failure to
perform its obligations hereunder, all as described in this Section
10(a), it will reimburse each Underwriter on a quarterly basis for all
reasonable legal or other expenses incurred in connection with
investigating or defending any such claim, action, investigation,
inquiry or other proceeding, notwithstanding the absence of a judicial
determination as to the propriety and enforceability of the Company's
obligation to reimburse each Underwriter for such expenses and the
possibility that such payments might later be held to have been
improper by a court of competent jurisdiction. To the extent that any
such interim reimbursement payment is so held to have been improper,
each Underwriter shall promptly return it to the Company together with
interest, compounded daily, determined on the basis of the prime rate
(or other commercial lending rate for borrowers of the highest credit
standing) announced from time to time by Bank of America NT&SA, San
Francisco, California (the "Prime Rate"). Any such interim
reimbursement payments which are not made to an Underwriter within 30
days of a request for reimbursement, shall bear interest at the Prime
Rate from the date of such request. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter will severally indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who
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controls the Company within the meaning of the Act, against any losses,
claims, damages, liabilities or expenses to which the Company, or any
such director, officer or controlling person may become subject, under
the Act, the Exchange Act, or other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of
any litigation, if such settlement is effected with the written consent
of such Underwriter), insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof as contemplated
below) arise out of or are based upon any untrue or alleged untrue
statement of any material fact contained in the Registration Statement,
any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, in reliance upon
and in conformity with the information furnished to the Company
pursuant to Section 3 hereof; and will reimburse the Company, or any
such director, officer or controlling person for any legal and other
expense reasonably incurred by the Company, or any such director,
officer or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action. In addition to its other
obligations under this Section 10(b), each Underwriter severally agrees
that, as an interim measure during the pendency of any claim, action,
investigation, inquiry or other proceeding arising out of or based upon
any statement or omission, or any alleged statement or omission,
described in this Section 10(b) which relates to information furnished
to the Company pursuant to Section 3 hereof, it will reimburse the
Company (and, to the extent applicable, each officer, director,
controlling person) on a quarterly basis for all reasonable legal or
other expenses incurred in connection with investigating or defending
any such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the
propriety and enforceability of the Underwriters' obligation to
reimburse the Company (and, to the extent applicable, each officer,
director, controlling person) for such expenses and the possibility
that such payments might later be held to have been improper by a court
of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, the Company
(and, to the extent applicable, each officer, director, controlling
person) shall promptly return it to the Underwriters together with
interest, compounded daily, determined on the basis of the Prime Rate.
Any such interim
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reimbursement payments which are not made to the Company within 30 days
of a request for reimbursement, shall bear interest at the Prime Rate
from the date of such request. This indemnity agreement will be in
addition to any liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party for contribution or otherwise than under
the indemnity agreement contained in this Section or to the extent it
is not prejudiced as a proximate result of such failure. In case any
such action is brought against any indemnified party and such
indemnified party seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to
participate in, and, to the extent that it may wish, jointly with all
other indemnifying parties similarly notified, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be a conflict
between the positions of the indemnifying party and the indemnified
party in conducting the defense of any such action or that there may be
legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select
separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to
such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under
this Section for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defenses in accordance with the
proviso to the next preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Representative in the
case of paragraph (a), representing the indemnified parties who are
parties to such action) or (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after
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notice of commencement of the action, in each of which cases the fees
and expenses of counsel shall be at the expense of the indemnifying
party.
(d) If the indemnification provided for in this Section 10 is
required by its terms but is for any reason held to be unavailable to
or otherwise insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) in respect of any losses, claims, damages,
liabilities or expenses referred to herein, then each applicable
indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of any losses, claims, damages,
liabilities or expenses referred to herein (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company
and the Underwriters from the offering of the Common Shares or (ii) if
the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Underwriters in connection with
the statements or omissions or inaccuracies in the representations and
warranties herein which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The respective relative benefits received by the
Company and the Underwriters shall be deemed to be in the same
proportion, in the case of the Company as the total price paid to the
Company for the Common Shares sold by it to the Underwriters (net of
underwriting commissions but before deducting expenses), and in the
case of the Underwriters as the underwriting commissions received by
them bears to the total of such amounts paid to the Company and
received by the Underwriters as underwriting commissions. The relative
fault of the Company and the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact or the inaccurate or the alleged inaccurate
representation and/or warranty relates to information supplied by the
Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the
limitations set forth in subparagraph (c) of this Section 10, any legal
or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim. The
provisions set forth in subparagraph (c) of this Section 10 with
respect to notice of commencement of any action shall apply if a claim
for contribution is to be made under this subparagraph (d); provided,
however, that no additional notice shall be required with respect to
any action
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for which notice has been given under subparagraph (c) for purposes of
indemnification. The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 10
were determined solely by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. Notwithstanding the
provisions of this Section 10, no Underwriter shall be required to
contribute any amount in excess of the amount of the total underwriting
commissions received by such Underwriter in connection with the Common
Shares underwritten by it and distributed to the public. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 10 are several in
proportion to their respective underwriting commitments and not joint.
(e) It is agreed that any controversy arising out of the operation
of the interim reimbursement arrangements set forth in Sections 10(a)
and 10(b) hereof, including the amounts of any requested reimbursement
payments and the method of determining such amounts, shall be settled
by arbitration conducted under the provisions of the Constitution and
Rules of the Board of Governors of the New York Stock Exchange, Inc. or
pursuant to the Code of Arbitration Procedure of the NASD. Any such
arbitration must be commenced by service of a written demand for
arbitration or written notice of intention to arbitrate, therein
electing the arbitration tribunal. In the event the party demanding
arbitration does not make such designation of an arbitration tribunal
in such demand or notice, then the party responding to said demand or
notice is authorized to do so. Such an arbitration would be limited to
the operation of the interim reimbursement provisions contained in
Sections 10(a) and 10(b) hereof and would not resolve the ultimate
propriety or enforceability of the obligation to reimburse expenses
which is created by the provisions of such Sections 10(a) and 10(b)
hereof.
SECTION 11. Default of Underwriters. It shall be a condition to
this Agreement and the obligation of the Company to sell and deliver
the Common Shares hereunder, and of each Underwriter to purchase the
Common Shares in the manner as described herein, that, except as
hereinafter in this paragraph provided, each of the Underwriters shall
purchase and pay for all the Common Shares agreed to be purchased by
such Underwriter hereunder upon tender to the Representative of all
such shares in accordance with the terms hereof. If any Underwriter or
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Underwriters default in their obligations to purchase Common Shares
hereunder on either the First or Second Closing Date and the aggregate
number of Common Shares which such defaulting Underwriter or
Underwriters agreed but failed to purchase on such Closing Date does
not exceed 10% of the total number of Common Shares which the
Underwriters are obligated to purchase on such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion
to their respective commitments hereunder, to purchase the Common
Shares which such defaulting Underwriters agreed but failed to purchase
on such Closing Date. If any Underwriter or Underwriters so default and
the aggregate number of Common Shares with respect to which such
default occurs is more than the above percentage and arrangements
satisfactory to the Representative and the Company for the purchase of
such Common Shares by other persons are not made within 48 hours after
such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter or the Company except for the
expenses to be paid by the Company pursuant to Section 6 hereof and
except to the extent provided in Section 10 hereof.
In the event that Common Shares to which a default relates are to
be purchased by the non-defaulting Underwriters or by another party or
parties, the Representative or the Company shall have the right to
postpone the First or Second Closing Date, as the case may be, for not
more than five business days in order that the necessary changes in the
Registration Statement, Prospectus and any other documents, as well as
any other arrangements, may be effected. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter
under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
SECTION 12. Effective Date. This Agreement shall become effective
immediately as to Sections 6, 8, 10, 13 and 14 and, as to all other
provisions, (i) if at the time of execution of this Agreement the
Registration Statement has not become effective, at 2:00 P.M.,
California time, on the first full business day following the
effectiveness of the Registration Statement, or (ii) if at the time of
execution of this Agreement the Registration Statement has been
declared effective, at 2:00 P.M., California time, on the first full
business day following the date of execution of this Agreement; but
this Agreement shall nevertheless become effective at such earlier time
after the Registration Statement becomes effective as you may determine
on and by notice to the Company or by release of any of the Common
Shares for sale to the public. For the purposes of this Section 12, the
Common Shares shall be deemed to have been so released upon the release
for publication of any newspaper advertisement relating to the Common
Shares or upon the release by
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you of telegrams (i) advising Underwriters that the Common Shares are
released for public offering, or (ii) offering the Common Shares for
sale to securities dealers, whichever may occur first.
SECTION 13. Termination. Without limiting the right to
terminate this Agreement pursuant to any other provision hereof:
(a) This Agreement may be terminated by the Company by notice
to you or by you by notice to the Company at any time prior to the
time this Agreement shall become effective as to all its
provisions, and any such termination shall be without liability on
the part of the Company to any Underwriter (except for the
expenses to be paid or reimbursed by the Company pursuant to
Sections 6 and 8 hereof and except to the extent provided in
Section 10 hereof) or of any Underwriter to the Company (except to
the extent provided in Section 10 hereof).
(b) This Agreement may also be terminated by you prior to the
First Closing Date by notice to the Company (i) if additional
material governmental restrictions, not in force and effect on the
date hereof, shall have been imposed upon trading in securities
generally or minimum or maximum prices shall have been generally
established on the New York Stock Exchange or on the American
Stock Exchange or in the over the counter market by the NASD, or
trading in securities generally shall have been suspended on
either such Exchange or in the over the counter market by the
NASD, or a general banking moratorium shall have been established
by federal, New York or California authorities, (ii) if an
outbreak of major hostilities or other national or international
calamity or any substantial change in political, financial or
economic conditions shall have occurred or shall have accelerated
or escalated to such an extent, as, in the judgment of the
Representative, to affect adversely the marketability of the
Common Shares, (iii) if any adverse event shall have occurred or
shall exist which makes untrue or incorrect in any material
respect any statement or information contained in the Registration
Statement or Prospectus or which is not reflected in the
Registration Statement or Prospectus but should be reflected
therein in order to make the statements or information contained
therein not misleading in any material respect, or (iv) if there
shall be any action, suit or proceeding pending or threatened, or
there shall have been any development or prospective development
involving particularly the business or properties or securities of
the Company or any of its subsidiaries or the transactions
contemplated by this Agreement, which, in the reasonable
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judgment of the Representative, may materially and adversely
affect the Company's business or earnings and makes it
impracticable or inadvisable to offer or sell the Common Shares.
Any termination pursuant to this subsection (b) shall without
liability on the part of any Underwriter to the Company or on the
part of the Company to any Underwriter (except for expenses to be
paid or reimbursed by the Company pursuant to Sections 6 and 8
hereof and except to the extent provided in Section 10 hereof).
SECTION 14. Representations and Indemnities to Survive Delivery.
The respective indemnities, agreements, representations, warranties and
other statements of the Company, of its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made
by or on behalf of any Underwriter or the Company or any of its or
their partners, officers or directors or any controlling person, as the
case may be, and will survive delivery of and payment for the Common
Shares sold hereunder and any termination of this Agreement.
SECTION 15. Notices. All communications hereunder shall be in
writing and, if sent to the Representative shall be mailed, delivered
or telegraphed and confirmed to you at 600 Montgomery Street, San
Francisco, California 94111, Attention: ____________, with a copy to
Mark G. Borden, Esq., Hale and Dorr, 60 State Street, Boston,
Massachusetts 02109; and if sent to the Company shall be mailed,
delivered or telegraphed and confirmed to the Company at 108 Charles
Park Road, West Roxbury, Massachusetts 02132, Attention: President with
a copy to Steven R. London, Esq., Brown, Rudnick, Freed & Gesmer, One
Financial Center, Boston, Massachusetts 02111. The Company or you may
change the address for receipt of communications hereunder by giving
notice to the others.
SECTION 16. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto, including any substitute
Underwriters pursuant to Section 11 hereof, and to the benefit of the
officers and directors and controlling persons referred to in Section
10, and in each case their respective successors, personal
representatives and assigns, and no other person will have any right or
obligation hereunder. No such assignment shall relieve any party of its
obligations hereunder. The term "successors" shall not include any
purchaser of the Common Shares as such from any of the Underwriters
merely by reason of such purchase.
SECTION 17. Representation of Underwriters. You will act as
Representative for the several Underwriters in connection with all
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dealings hereunder, and any action under or in respect of this
Agreement taken by you as Representative, will be binding upon all the
Underwriters.
SECTION 18. Partial Unenforceability. The invalidity or
unenforceability of any Section, paragraph or provision of this
Agreement shall not affect the validity or enforceability of any other
Section, paragraph or provision hereof. If any Section, paragraph or
provision of this Agreement is for any reason determined to be invalid
or unenforceable, there shall be deemed to be made such minor changes
(and only such minor changes) as are necessary to make it valid and
enforceable.
SECTION 19. Applicable Law. This Agreement shall be
governed by and construed in accordance with the internal laws
(and not the laws pertaining to conflicts of laws) of the State of
California.
SECTION 20. General. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior
written or oral and all contemporaneous oral agreements, understandings
and negotiations with respect to the subject matter hereof. This
Agreement may be executed in several counterparts, each one of which
shall be an original, and all of which shall constitute one and the
same document.
In this Agreement, the masculine, feminine and neuter genders and
the singular and the plural include one another. The section headings
in this Agreement are for the convenience of the parties only and will
not affect the construction or interpretation of this Agreement. This
Agreement may be amended or modified, and the observance of any term of
this Agreement may be waived, only by a writing signed by the Company
and you.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed copies hereof,
whereupon it will become a binding agreement between the Company and
the several Underwriters including you, all in accordance with its
terms.
Very truly yours,
UNO RESTAURANT CORPORATION
By:______________________________
President
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The foregoing Underwriting Agreement is hereby confirmed and accepted
by us in San Francisco, California as of the date first above written.
MONTGOMERY SECURITIES
Acting as Representative of the several
Underwriters named in the attached Schedule A.
By:______________________________
Partner
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Draft of May 3, 1995
SCHEDULE A
Number of Firm
Common Shares
Name of Underwriter to be Purchased
--------------------- ---------------
Montgomery Securities.....................
TOTAL.......................... 2,000,000
=========
A-1