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EXHIBIT 1.1
[Form of Underwriting Agreement - To be negotiated]
2,500,000 Shares
VOICETEK CORPORATION
Common Stock
UNDERWRITING AGREEMENT
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March __, 1997
Oppenheimer & Co., Inc.
First Albany Corporation
c/o Oppenheimer & Co., Inc.
Oppenheimer Tower
World Financial Center
New York, New York 10281
On behalf of the Several Underwriters named on Schedule I attached
hereto.
Ladies and Gentlemen:
Voicetek Corporation, a Massachusetts corporation (the "Company"), and the
selling stockholders named on Schedule II attached to this Agreement (the
"Selling Stockholders") propose to sell to you and the other underwriters named
on Schedule I to this Agreement (the "Underwriters"), for whom you are acting as
Representatives, an aggregate of 2,500,000 shares (the "Firm Shares") of the
Company's Common Stock, $.01 par value (the "Common Stock"). Of the 2,500,000
Firm Shares, 2,000,000 are to be issued and sold by the Company and 500,000 are
to be sold by the Selling Stockholders. In addition, the Selling Stockholders
propose to grant to the Underwriters an option to purchase up to an additional
375,000 shares (the "Option Shares") of Common Stock from them for the purpose
of covering over-allotments in connection with the sale of the Firm Shares. The
Firm Shares and the Option Shares are together called the "Shares."
1. SALE AND PURCHASE OF THE SHARES. On the basis of the representations,
warranties and agreements contained in, and subject to the terms and conditions
of, this Agreement:
(a) The Company and the Selling Stockholders agree, severally and not
jointly, to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase, at $_____ per share (the
"Initial Price"), the number of Firm Shares (adjusted by the
Representatives to eliminate fractions) which bears the same proportion of
the total number of Firm Shares to be sold by the Company or the Selling
Stockholders, as the case may be, as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule I attached to this
Agreement bears to the total number of Firm Shares to be sold by the
Company and the Selling Stockholders.
(b) The Selling Stockholders, severally and not jointly, grant to the
Underwriters an option to purchase, severally and not jointly, all or any
part of the
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Option Shares at the Initial Price. The number of Option Shares to be
purchased by each Underwriter shall be the same percentage (adjusted by the
Representatives to eliminate fractions) of the total number of Option
Shares to be purchased by the Underwriters as such Underwriter is
purchasing of the Firm Shares. Such option may be exercised only to cover
over- allotments in the sales of the Firm Shares by the Underwriters and
may be exercised in whole or in part at any time on or before 12:00 noon,
New York City time, on the business day before the Firm Shares Closing Date
(as defined below), and only once thereafter within 30 days after the date
of this Agreement, in each case upon written or facsimile notice, or verbal
or telephonic notice confirmed by written or facsimile notice, by the
Representatives to the Company no later than 12:00 noon, New York City
time, on the business day before the Firm Shares Closing Date or at least
two business days before the Option Shares Closing Date (as defined below),
as the case may be, setting forth the number of Option Shares to be
purchased and the time and date (if other than the Firm Shares Closing
Date) of such purchase.
2. DELIVERY AND PAYMENT. Delivery of the certificates for the Firm Shares
shall be made by the Company and the Custodian (as hereinafter defined) on
behalf of the Selling Stockholders to the Representatives for the respective
accounts of the Underwriters, and payment of the purchase price by certified or
official bank check or checks payable in New York Clearing House (next day)
funds to the Company and the Custodian, respectively, shall take place at the
offices of Oppenheimer & Co., Inc., at Oppenheimer Tower, World Financial
Center, New York, New York 10281, at 10:00 a.m., New York City time, on the
third business day following the date of this Agreement; provided, however, that
if the Shares sold hereunder are priced and this Agreement is entered into after
4:30 p.m., New York City time, on any business day, payment and delivery in
respect of the Firm Shares shall take place on the fourth business day following
the date of this Agreement; in either case, unless another time and date, not
later than 10 business days after the date of this Agreement, shall be agreed
upon by the Company, the Selling Stockholders and the Representatives (such time
and date of delivery and payment are called the "Firm Shares Closing Date").
In the event the option with respect to the Option Shares is exercised,
delivery of the certificates for the Option Shares shall be made by the
Custodian to the Representatives for the respective accounts of the
Underwriters, and payment of the purchase price by certified or official bank
check or checks payable in New York Clearing House (next day) funds to the
Selling Shareholders shall take place at the offices of Oppenheimer & Co., Inc.
specified above at the time and on the date (which may be the same date as, but
in no event shall be earlier than, the Firm Shares Closing Date) specified in
the notice referred to in Section 1(b) (such time and date of delivery and
payment are called the "Option Shares Closing Date"). The Firm Shares Closing
Date and the Option Shares Closing Date are called, individually, a "Closing
Date" and, together, the "Closing Dates."
Certificates evidencing the Shares shall be registered in such names and
shall be in such denominations as the Representatives shall request at least two
full business days before the Firm Shares Closing Date or, in the case of Option
Shares, on the day of notice of exercise of the option as described in Section
1(b) and shall be made available to the Representatives for checking and
packaging, at such place as is designated by the Representatives, on the full
business day before the Firm Shares Closing Date (or the Option Shares Closing
Date in the case of the Option Shares).
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3. REGISTRATION STATEMENT AND PROSPECTUS; PUBLIC OFFERING. The Company has
prepared in conformity with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and the published rules and regulations
thereunder (the "Rules") adopted by the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-____), including a
preliminary prospectus relating to the Shares, and has filed with the Commission
the Registration Statement (as hereinafter defined) and such amendments thereof
as may have been required to the date of this Agreement. Copies of such
Registration Statement (including all amendments thereof) and of the related
preliminary prospectus have heretofore been delivered by the Company to you. The
term "preliminary prospectus" means any preliminary prospectus (as described in
Rule 430 of the Rules) included at any time as a part of the Registration
Statement. The Registration Statement as amended at the time and on the date it
becomes effective (the "Effective Date"), including all exhibits and
information, if any, deemed to be part of the Registration Statement pursuant to
Rule 424(b) and Rule 430A of the Rules, is called the "Registration Statement."
The term "Prospectus" means the prospectus in the form first used to confirm
sales of the Shares (whether such prospectus was included in the Registration
Statement at the time of effectiveness or was subsequently filed with the
Commission pursuant to Rule 424(b) of the Rules).
The Company and the Selling Stockholders understand that the Underwriters
propose to make a public offering of the Shares, as set forth in and pursuant to
the Prospectus, as soon after the Effective Date and the date of this Agreement
as the Representatives deem advisable. The Company and the Selling Stockholders
hereby confirm that the Underwriters and dealers have been authorized to
distribute or cause to be distributed each preliminary prospectus and are
authorized to distribute the Prospectus (as from time to time amended or
supplemented if the Company furnishes amendments or supplements thereto to the
Underwriters).
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDERS. The Company and the Selling Stockholders hereby, jointly and
severally, represent and warrant to each Underwriter as follows:
(a) On the Effective Date the Registration Statement complied, and on
the date of the Prospectus, on the date any post-effective amendment to the
Registration Statement shall become effective, on the date any supplement
or amendment to the Prospectus is filed with the Commission and on each
Closing Date, the Registration Statement and the Prospectus (and any
amendment thereof or supplement thereto) will comply, in all material
respects, with the applicable provisions of the Securities Act and the
Rules and the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations of the Commission thereunder; the
Registration Statement did not, as of the Effective Date, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and on the other dates referred to above neither
the Registration Statement nor the Prospectus, nor any amendment thereof or
supplement thereto, will contain any untrue statement of a material fact or
will omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading. When any
related preliminary prospectus was first filed with the Commission (whether
filed as part of the Registration Statement or any amendment thereto or
pursuant to Rule 424(a) of the Rules) and when any amendment thereof or
supplement thereto was first filed with the Commission, such preliminary
prospectus as amended or supplemented complied in all material respects
with the applicable provisions of the Securities Act and the Rules and did
not contain any untrue statement of a material fact or
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omit to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading. Notwithstanding the
foregoing, the Company and the Selling Stockholders make no representation
or warranty as to the last paragraph on the cover page of the Prospectus,
the paragraph with respect to stabilization on the inside front cover page
of the Prospectus and the statements contained under the caption
"Underwriting" in the Prospectus. The Company and the Selling Stockholders
acknowledge that the statements referred to in the previous sentence
constitute the only information furnished in writing by the Representatives
on behalf of the Underwriters specifically for inclusion in the
Registration Statement, any preliminary prospectus or the Prospectus.
(b) All contracts and other documents required to be filed as exhibits
to the Registration Statement have been filed with the Commission as
exhibits to the Registration Statement.
(c) The financial statements of the Company (including all notes and
schedules thereto) included in the Registration Statement and Prospectus
present fairly the financial position, results of operations and cash flows
and the stockholders' equity and the other information purported to be
shown therein of the Company at the respective dates and for the respective
periods to which they apply; and such financial statements have been
prepared in conformity with generally accepted accounting principles,
consistently applied throughout the periods involved, and all adjustments
necessary for a fair presentation of the results for such periods have been
made.
(d) Coopers & Lybrand LLP, whose reports filed with the Commission as
a part of the Registration Statement, are and, during the periods covered
by their reports, were independent public accountants as required by the
Securities Act and the Rules.
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the Commonwealth of
Massachusetts. The Company has no subsidiaries and does not control,
directly or indirectly, any corporation, partnership, joint venture,
association or business. The Company is duly qualified and in good standing
as a foreign corporation in each jurisdiction in which the character or
location of its assets or properties (owned, leased or licensed) or the
nature of its business makes such qualification necessary except for such
jurisdictions where the failure to so qualify would not have a material
adverse effect on the assets or properties, business, results of operations
or financial condition of the Company. Except as disclosed in the
Registration Statement and the Prospectus, the Company does not own, lease
or license any asset or property or conduct any business outside the United
States of America. The Company has all requisite corporate power and
authority, and all necessary authorizations, approvals, consents, orders,
licenses, certificates and permits of and from all governmental or
regulatory bodies or any other person or entity, to own, lease and license
its assets and properties and conduct its businesses as now being conducted
and as described in the Registration Statement and the Prospectus except
for such authorizations, approvals, consents, orders, material licenses,
certificates and permits the failure to so obtain would not have a material
adverse effect upon the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of the Company;
no such authorization, approval, consent, order, license, certificate or
permit contains a materially burdensome restriction other than as disclosed
in the Registration Statement and the Prospectus; and the Company has all
such corporate power and
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authority, and such authorizations, approvals, consents, orders, licenses,
certificates and permits to enter into, deliver and perform this Agreement
and to issue and sell the Shares (except as may be required under state and
foreign Blue Sky laws).
(f) The Company owns or possesses adequate and enforceable rights to
use all patents, patent applications, trademarks, trademark applications,
trade names, service marks, copyrights, copyright applications, licenses,
know-how and other similar rights and proprietary knowledge (collectively,
"Intangibles") described in the Registration Statement as owned or licensed
by the Company. To the Company's knowledge, there are no other Intangibles
necessary for the conduct of its business as described in the Registration
Statement and the Prospectus. The Company has not received any notice of,
and to its best knowledge is not aware of, any infringement of or conflict
with asserted rights of others with respect to any Intangibles owned or
licensed by the Company which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would have a material
adverse effect upon the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of the Company.
(g) The Company has good title to each of the items of personal
property which are reflected in the financial statements referred to in
Section 4(c) or are referred to in the Registration Statement and the
Prospectus as being owned by it and valid and enforceable leasehold
interests in each of the items of real and personal property which are
referred to in the Registration Statement and the Prospectus as being
leased by it, in each case free and clear of all liens, encumbrances,
claims, security interests and defects, other than those described in the
Registration Statement and the Prospectus and those which do not and will
not have a material adverse effect upon the assets or properties, business,
results of operations, prospects or condition (financial or otherwise) of
the Company.
(h) There is no litigation or governmental or other proceeding or
investigation before any court or before or by any public body or board
pending or, to the Company's best knowledge, threatened against, or
involving the assets, properties or business of, the Company which, if
determined adversely to the Company, would materially adversely affect the
value or the operation of any such assets or properties or the business,
results of operations, prospects or condition (financial or otherwise) of
the Company.
(i) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as described
therein, (i) there has not been any material adverse change in the assets
or properties, business, results of operations, prospects or condition
(financial or otherwise), of the Company, whether or not arising from
transactions in the ordinary course of business; (ii) the Company has not
sustained any material loss or interference with its assets, businesses or
properties (whether owned or leased) from fire, explosion, earthquake,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or any court or legislative or other governmental action,
order or decree; and (iii) and since the date of the latest balance sheet
included in the Registration Statement and the Prospectus, except as
reflected in the Registration Statement or the Prospectus, the Company has
not (a) issued any securities or incurred any liability or obligation,
direct or contingent, for borrowed money, except such liabilities or
obligations incurred in the ordinary course of business,
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(b) entered into any transaction not in the ordinary course of business or
(c) declared or paid any dividend or made any distribution on any shares of
its stock or redeemed, purchased or otherwise acquired or agreed to redeem,
purchase or otherwise acquire any shares of its stock.
(j) There is no document or contract of a character required to be
described in the Registration Statement or Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed as
required. Each agreement listed in the Exhibits to the Registration
Statement is in full force and effect and is valid and enforceable by and
against the Company in accordance with its terms, assuming the due
authorization, execution and delivery thereof by each of the other parties
thereto. Neither the Company, nor, to the best of the Company's knowledge,
any other party is in default in the observance or performance of any term
or obligation to be performed by it under any such agreement, and no event
has occurred which with notice or lapse of time or both would constitute
such a default, in any such case which default or event would have a
material adverse effect on the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of the Company.
No default exists, and no event has occurred which with notice or lapse of
time or both would constitute a default, in the due performance and
observance of any term, covenant or condition, by the Company of any other
agreement or instrument to which the Company is a party or by which it or
its properties or business may be bound or affected which default or event
would have a material adverse effect on the assets or properties, business,
results of operations, prospects or condition (financial or otherwise) of
the Company.
(k) The Company is not in violation of any term or provision of its
Articles of Organization, as amended, or By-Laws, as amended, or of any
franchise, license, permit, judgment, decree, order, statute, rule or
regulation, where the consequences of such violation would have a material
adverse effect on the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of the Company.
(l) Neither the execution, delivery and performance of this Agreement
by the Company nor the consummation of any of the transactions contemplated
hereby (including, without limitation, the issuance and sale by the Company
of the Shares and the sale by the Selling Stockholders of the Shares to be
sold by them) will give rise to a right to terminate or accelerate the due
date of any payment due under, or conflict with or result in the breach of
any term or provision of, or constitute a default (or an event which with
notice or lapse of time or both would constitute a default) under, or
require any consent or waiver under, or result in the execution or
imposition of any lien, charge or encumbrance upon any properties or assets
of the Company pursuant to the terms of, any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company is a party or
by which it or any of its properties or businesses is bound, or any
franchise, license, permit, judgment, decree, order, statute, rule or
regulation applicable to the Company or violate any provision of the
Articles of Organization, as amended, or By-Laws, as amended, of the
Company, except for such consents or waivers which have already been
obtained and are in full force and effect.
(m) The Company has an authorized and outstanding capital stock as set
forth under the captions "Capitalization" and "Description of Capital
Stock" in the Prospectus. All of the outstanding shares of Common Stock
[and Series A
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Preferred Stock, par value $.01 per share,] have been duly and validly
issued and are fully paid and nonassessable and none of them was issued in
violation of any preemptive or other similar right. The Shares to be issued
and sold by the Company, when issued and sold by the Company pursuant to
this Agreement, and the Shares to be sold by the Selling Stockholders, when
sold by the Selling Stockholders pursuant to this Agreement, will be duly
and validly issued, fully paid and nonassessable and none of them will be
issued in violation of any preemptive or other similar right. Except as
disclosed in the Registration Statement and the Prospectus, there is no
outstanding option, warrant or other right calling for the issuance of, and
there is no commitment, plan or arrangement to issue, any share of stock of
the Company or any security convertible into, or exercisable or
exchangeable for, such stock. The Common Stock and the Shares conform in
all material respects to all statements in relation thereto contained in
the Registration Statement and the Prospectus.
(n) No holder of any security of the Company has the right to have any
security owned by such holder included in the Registration Statement or to
demand registration of any security owned by such holder during the period
ending 180 days after the date of this Agreement, other than rights which
have been waived. Each stockholder, director and executive officer of the
Company has delivered to the Representatives his enforceable written
agreement that he will not, for a period of 180 days after the date of this
Agreement, offer for sale, sell, distribute, grant any option for the sale
of, or otherwise dispose of, directly or indirectly, or exercise any
registration rights with respect to, any shares of Common Stock (or any
securities convertible into, exercisable for, or exchangeable for any
shares of Common Stock) owned by him, without the prior written consent of
Oppenheimer & Co., Inc., on behalf of the Underwriters.
(o) Each stockholder listed on Schedule III hereto, director and
executive officer of the Company has delivered to the Representatives his
or her enforceable written agreement that, except, in the case of the
Selling Stockholders, for the sale of the Shares to be sold by the Selling
Stockholders pursuant to the Registration Statement, he, she or it will
not, for a period of 180 days after the date of this Agreement, sell
(including "short sales"), loan, pledge, assign, transfer, encumber,
distribute, grant or other transfer or dispose of, directly or indirectly
(collectively, "Transfer"), or offer, contract or otherwise agree to
Transfer, any Common Stock or any other securities convertible into or
exchangeable for Common Stock or any other equity securities of the Company
owned by him, her or it, without the prior written consent of the
Representatives, except for (i) sales to the several Underwriters pursuant
to this Agreement or (ii) pursuant to will or the laws of intestate
succession, provided the transferee thereof agrees in writing to be bound
by such restrictions.
(p) All necessary corporate action has been duly and validly taken by
the Company to authorize the execution, delivery and performance of this
Agreement and the issuance and sale of the Shares. This Agreement has been
duly and validly authorized, executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except (i) as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles and (ii)
to the extent that rights to indemnity or contribution under this Agreement
may be limited by Federal and state securities laws or the public policy
underlying such laws.
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(q) The Company is not involved in any labor dispute nor, to the
knowledge of the Company, is any such dispute threatened, which dispute
would have a material adverse effect on the assets or properties, business,
results of operations, prospects or condition (financial or otherwise) of
the Company.
(r) No transaction has occurred between or among the Company and any
of its officers, directors or stockholders, as the case may be, or any
affiliate or affiliates of any such officer, director or stockholder, that
is required to be described in and is not described in the Registration
Statement and the Prospectus.
(s) The Company has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of any of the Shares.
(t) The Company has filed all Federal, state, local and foreign tax
returns which are required to be filed by it through the date hereof, or
has received extensions thereof, and has paid all taxes shown on such
returns and all assessments received by it to the extent that the same are
material and have become due.
(u) The Shares have been duly authorized for quotation on the National
Association of Securities Dealers Automated Quotation ("NASDAQ") National
Market System.
(v) The Company has complied with all of the requirements and filed
the required forms as specified in Florida Statutes Section 517.075.
5. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS. Each of the
Selling Stockholders, severally and not jointly, represents and warrants to each
Underwriter that:
(a) Such Selling Stockholder is, and on the Firm Shares Closing Date
will be, the sole lawful owner of the Shares to be sold by it hereunder,
and has, and on such date will have, good and marketable title to the
Shares to be sold by such Selling Stockholder hereunder, free and clear of
any lien, charge, claim, encumbrance, security interest, stockholders'
agreement, voting trust, restriction on transfer or other defect in title.
(b) Such Selling Stockholder has, and on the Firm Shares Closing Date
will have, full legal right, power and authority, and every approval,
authorization or other consent, required to sell, assign, transfer and
deliver such Shares in the manner provided in this Agreement; delivery of
certificates for the Shares to be sold by such Selling Stockholder pursuant
hereto will, upon payment therefor, pass good and marketable title thereto
to each Underwriter, free and clear of any lien, charge, claim,
encumbrance, security interest, stockholders' agreement, voting trust,
restriction on transfer or other defect in title; and there are no
outstanding options, warrants, rights or other agreements or arrangements
requiring such Selling Stockholder at an time to transfer any Shares which
may be sold to the Underwriters pursuant to this Agreement.
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(c) Such Selling Stockholder has duly executed and delivered a power
of attorney (the "Power of Attorney"), in the form heretofore delivered to
the Representatives, appointing __________________ and __________________,
as such Selling Stockholder's attorneys-in-fact (the "Attorneys-in-Fact"),
each of them, together or individually with full power and authority to
execute, deliver and perform this Agreement on behalf of such Selling
Stockholder.
(d) Such Selling Stockholder has duly executed and delivered a custody
agreement (the "Custody Agreement"), in the form heretofore delivered to
the Representatives pursuant to which certificates in negotiable form for
the Shares to be sold by such Selling Stockholder under this Agreement were
deposited with ___________________, as a custodian (the "Custodian"). The
Custody Agreement and the Custodian's authority thereunder and the
appointment of the Attorneys-in-Fact are irrevocable and the obligations of
such Selling Stockholder hereunder and under the Custody Agreement are not
subject to termination by such Selling Stockholder, except as provided in
this Agreement, the Power of Attorney or the Custody Agreement, or by
operation of law, whether by the death or incapacity of any trustee or
executor or the termination of any trust or estate (if such Selling
Stockholder is a trust or estate), the dissolution or liquidation of any
corporation or partnership (if such Selling Stockholder is a corporation or
a partnership), or the occurrence of any other event. If any event referred
to in the preceding sentence should occur before the deliver of the Shares
hereunder, the certificates for the Shares to be sold by such Selling
Stockholder in accordance with the terms and conditions of this Agreement
and the Custody Agreement, and action taken by the Custodian pursuant to
the Custody Agreement shall be as valid as if such event had not occurred,
whether or not the Custodian or the Attorneys-in-Fact, or any one of them,
shall have received notice of such event.
(e) The execution, delivery and performance of this Agreement, the
Power of Attorney and the Custody Agreement and the consummation of the
transactions to be performed by such Selling Stockholder contemplated
hereby and thereby, including the delivery and sale of the Shares to be
delivered and sold by such Selling Stockholder hereunder and thereunder,
will not conflict with or result in a breach or violation of, or constitute
a default (or an event which with notice or lapse of time or both would
constitute a default) under, any agreement, indenture or other instrument
to which such Selling Stockholder is a party or by which it is bound, or to
which any of its assets or properties are subject or affected, nor will the
performance by such Selling Stockholder of its obligations hereunder or
thereunder violate any statute, rule, regulation or order or decree of any
court or any governmental or regulatory agency, authority or body having
jurisdiction over such Selling Stockholder or any of its assets or
properties or result in the creation or imposition of any lien, charge,
claim, security interest, encumbrance or restriction whatsoever upon such
Shares.
(f) Except for permits and similar authorizations required under the
Securities Act, the securities or Blue Sky laws of certain jurisdictions,
and such permits and authorizations which have been obtained, no consent,
approval, authorization, license, permit or certificate or order of any
court, governmental or regulatory agency, authority or body or financial
institution is required in connection with the consummation of the
transactions to be performed by such Selling Stockholder contemplated by
this Agreement, including the delivery and sale of the Shares to be sold by
such Selling Stockholder.
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(g) Each of this Agreement, the Power of Attorney and the Custody
Agreement has been duly and validly authorized, executed and delivered by
such Selling Stockholder and constitutes a legal, valid and binding
obligation of such Selling Stockholder, enforceable against such Selling
Stockholder in accordance with its terms, except (i) as the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles and (ii)
to the extent that rights to indemnity or contribution under this Agreement
may be limited by Federal and state securities laws or the public policy
underlying such laws.
(h) All information furnished to the Company by such Selling
Stockholder or on such Selling Stockholder's behalf for use in connection
with the preparation of the Registration Statement and Prospectus
(including, without limiting the generality of the foregoing, all
representations and warranties of such Selling Stockholder in such Selling
Stockholder's Power of Attorney and the information relating to such
Selling Stockholder which is set forth in the Registration Statement under
the caption "Principal and Selling Stockholders') is true and correct and
does not omit any material fact necessary to make such information not
misleading.
(i) The sale by such Selling Stockholder of Shares pursuant hereto is
not prompted by any adverse information concerning the Company.
(j) Such Selling Stockholder has not since the filing of the
Registration Statement (i) sold, bid for, purchased, attempted to induce
any person to purchase, or paid anyone any compensation for soliciting
purchases of, the Common Shares or (ii) paid or agreed to pay to any person
any compensation for soliciting another to purchase any securities of the
Company, except for the sale of the Shares by the Selling Stockholders
under this Agreement.
(k) Such Selling Stockholder has not taken and will not 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 of the price of the Common Shares to
facilitate the sale or resale of the Shares.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters under this Agreement are several and not joint. The respective
obligations of the Underwriters to purchase the Shares are subject to each of
the following terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 7(A)(a) of this Agreement.
(b) No order preventing or suspending the use of any preliminary
prospectus or the Prospectus shall have been or shall be in effect and no
order suspending the effectiveness of the Registration Statement shall be
in effect and no proceedings for such purpose shall be pending before or
threatened by the Commission, and any requests for additional information
on the part of the Commission (to be included in the Registration Statement
or the Prospectus or otherwise) shall have been complied with to the
satisfaction of the Representatives.
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(c) The representations and warranties of the Company and the Selling
Stockholders contained in this Agreement and in the certificates delivered
pursuant to Section 6(d) and 6(e), respectively, shall be true and correct
when made and on and as of each Closing Date as if made on such date and
the Company and the Selling Stockholders shall have performed all covenants
and agreements and satisfied all the conditions contained in this Agreement
required to be performed or satisfied by it at or before such Closing Date.
(d) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives and dated such Closing Date,
of the chief executive or chief operating officer and the chief financial
officer or chief accounting officer of the Company to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Prospectus and this Agreement and that the representations
and warranties of the Company in this Agreement are true and correct on and
as of such Closing Date with the same effect as if made on such Closing
Date and the Company has performed all covenants and agreements and
satisfied all conditions contained in this Agreement required to be
performed or satisfied by it at or prior to such Closing Date.
(e) The Representatives shall have received on the Firm Shares Closing
Date a certificate, addressed to the Representatives and dated such Closing
Date, of each Selling Stockholder, to the effect that such Selling
Stockholder has carefully examined the Registration Statement, the
Prospectus and this Agreement and that the representations and warranties
of such Selling Stockholder in this Agreement are true and correct on and
as of such Closing Date with the same effect as if made on such Closing
Date and such Selling Stockholder has performed all covenants and
agreements and satisfied all conditions contained in this Agreement
required to be performed or satisfied by such Selling Stockholder at or
prior to such Closing Date.
(f) The Representatives shall have received on the Effective Date, at
the time this Agreement is executed and on each Closing Date a signed
letter from Coopers & Lybrand LLP addressed to the Representatives and
dated, respectively, the Effective Date, the date of this Agreement and
each such Closing Date, in form and substance reasonably satisfactory to
the Representatives, confirming that they are independent accountants
within the meaning of the Securities Act and the Rules, that the response
to Item 10 of the Registration Statement is correct insofar as it relates
to them and stating in effect that:
(i) In their opinion the audited financial statements and
financial statement schedules included in the Registration Statement
and the prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act and Rules;
(ii) on the basis of a reading of the amounts included in the
Registration Statement and the Prospectus under the headings "Summary
Financial Information" and "Selected Financial Data," carrying out
certain procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily
reveal matters of significance with respect to the comments set forth
in such letter, a reading of the minutes of the meetings of the
stockholders and directors of the Company, and inquiries of certain
officials of the Company who have
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responsibility for financial and accounting matters of the Company as
to transactions and events subsequent to the date of the latest
audited financial statements, except as disclosed in the Registration
Statement and the Prospectus, nothing came to their attention which
caused them to believe that:
(A) the amounts in "Summary Financial Information," and
"Selected Financial Data" included in the Registration Statement
and the Prospectus do not agree with the corresponding amounts in
the audited [and unaudited financial statements] from which such
amounts were derived; or
[(B) with respect to the Company, there were, at a specified
date not more than five business days prior to the date of the
letter, any increases in the current liabilities and long-term
liabilities of the Company or any decreases in net income or in
working capital or the stockholders' equity in the Company, as
compared with the amounts shown on the Company's audited balance
sheet for the year ended December 31, 1995 included in the
Registration Statement;]
(iii) they have performed certain other procedures as a result of
which they determined that certain information of an accounting,
financial or statistical information derived from the general
accounting records of the Company) set forth in the Registration
Statement and the Prospectus and reasonably specified by the
Representatives agrees with the accounting records of the Company.
References to the Registration Statement and the Prospectus in this
paragraph (f) are to such documents as amended and supplemented at the
date of the letter.
(g) The Representatives shall have received on each Closing Date:
(i) an opinion from Hutchins, Wheeler & Dittmar, counsel for the
Company, addressed to the Representatives, dated each Closing Date,
stating in effect that:
(A) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Massachusetts. To the best of such counsel's
knowledge, the Company has no subsidiary and does not control,
directly or indirectly, any corporation, partnership, joint
venture, association or other business organization. The Company
is duly qualified and in good standing as a foreign corporation
in each jurisdiction in which the character or location of its
assets or properties (owned, leased or licensed) or the nature of
its businesses makes such qualification necessary, except for
such jurisdictions where the failure to so qualify would not have
a material adverse effect on the assets or properties, business,
results of operations, prospects or condition (financial or
otherwise) of the Company.
(B) The Company has all requisite corporate power and
authority to own, lease and license its assets and properties and
conduct its business as now being conducted and as described in
the
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Registration Statement and the Prospectus; and the Company has
all requisite corporate power and authority and all necessary
authorizations, approvals, consents, orders, licenses,
certificates and permits to enter into, deliver and perform this
Agreement and to issue and sell the Shares other than those
required under state and foreign Blue Sky laws.
(C) The Company has authorized and issued capital stock as
set forth in the Registration Statement and the Prospectus; the
certificates evidencing the Shares are in due and proper legal
form and have been duly authorized for issuance by the Company;
all of the outstanding shares of Common Stock of the Company have
been duly and validly authorized and have been duly and validly
issued and are fully paid and nonassessable and none of them was
issued in violation of any preemptive or other similar right. The
Shares when issued and sold pursuant to this Agreement will be
duly and validly issued, outstanding, fully paid and
nonassessable and none of them will have been issued in violation
of any preemptive or other similar right. To the best of such
counsel's knowledge, except as disclosed in the Registration
Statement and the Prospectus, there is no outstanding option,
warrant or other right calling for the issuance of, and no
commitment, plan or arrangement to issue, any share of stock of
the Company or any security convertible into, exercisable for, or
exchangeable for stock of the Company. The Common Stock and the
Shares conform in all material respects to the descriptions
thereof contained in the Registration Statement and the
Prospectus.
(D) The agreement of the Company's stockholders set forth on
Schedule III to this Agreement and directors and officers stating
that (except in the case of the Selling Stockholders, for the
sale of the Shares to be sold by the Selling Stockholders
pursuant to the Registration Statement) for a period of 180 days
from the date of this Agreement they will not, without the
Representatives' prior written consent, directly or indirectly
Transfer, or offer, contract or otherwise agree to Transfer, any
Common Stock or any other securities convertible into or
exchangeable for Common Stock or any other equity securities
owned by them, except for (i) sales to the several Underwriters
pursuant to this Agreement or (ii) pursuant to will or the laws
of intestate succession, provided the transferee thereof agrees
in writing to be bound by such restrictions, has been duly and
validly executed and delivered by such persons and constitutes
the legal, valid and binding obligation of each such person
enforceable against each such person in accordance with its
terms, except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general
equitable principles.
(E) All necessary corporate action has been duly and validly
taken by the Company to authorize the execution, delivery and
performance of this Agreement and the issuance and sale of the
Shares. This Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes the legal,
valid and binding obligation of the Company enforceable against
the
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Company in accordance with its terms, except (i) as such
enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles and (ii) to the
extent that rights to indemnity or contribution under this
Agreement may be limited by Federal or state securities laws or
the public policy underlying such laws.
(F) Neither the execution, delivery and performance of this
Agreement by the Company nor the consummation of any of the
transactions contemplated hereby (including, without limitation,
the issuance and sale by the Company of the Shares to be issued
and sold by the Company) will give rise to a right to terminate
or accelerate the due date of any payment due under, or conflict
with or result in the breach of any term or provision of, or
constitute a default (or any event which with notice or lapse of
time, or both, would constitute a default) under, or require
consent or waiver under, or result in the execution or imposition
of any lien, charge or encumbrance upon any properties or assets
of the Company pursuant to the terms of any indenture, mortgage,
deed of trust, note or other agreement or instrument of which
such counsel is aware and to which the Company is a party or by
which it or any of its properties or businesses is bound, or any
franchise, license, permit, judgment, decree, order, statute,
rule or regulation of which such counsel is aware or violate any
provision of the Articles of Organization, as amended, or
By-Laws, as amended, of the Company.
(G) To the best of such counsel's knowledge, no default
exists, and no event has occurred which with notice or lapse of
time, or both, would constitute a default, in the due performance
and observance of any term, covenant or condition by the Company
of any indenture, mortgage, deed of trust, note or any other
agreement or instrument to which the Company is a party or by
which it or any of its assets or properties or businesses may be
bound or affected, where the consequences of such default would
have a material adverse effect on the assets or properties,
businesses, results of operations, prospects or condition
(financial or otherwise) of the Company.
(H) To the best of such counsel's knowledge, the Company is
not in violation of any term or provision of its Articles of
Organization, as amended, or By-Laws, as amended, or any
franchise, license, permit, judgment, decree, order, statute,
rule or regulation, where the consequences of such violation
would have a material adverse effect on the assets or properties,
businesses, results of operations, prospects or condition
(financial or otherwise) of the Company.
(I) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
performance of this Agreement by the Company or the consummation
of the transactions contemplated hereby, except such
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as have been obtained under the Securities Act and such as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the several
Underwriters.
(J) To the best of such counsel's knowledge, there is no
litigation or governmental or other proceeding or investigation,
before any court or before or by any public body or board pending
or threatened against, or involving the assets, properties or
businesses of, the Company which would have a material adverse
effect upon the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of
the Company.
(K) The statements in the Prospectus under the captions
"Description of Capital Stock," "Principal and Selling
Stockholders," "Certain Transactions," "Shares Eligible for
Future Sale" [and "________________________"] insofar as such
statements constitute a summary of documents referred to therein
or matters of law, are fair summaries in all material respects
and accurately present the information called for with respect to
such documents and matters. All contracts and other documents
required to be filed as exhibits to, or described in, the
Registration Statement have been so filed with the Commission or
are fairly described in the Registration Statement, as the case
may be.
(L) The Registration Statement, all preliminary prospectuses
and the Prospectus and each amendment or supplement thereto
(except for the financial statements and schedules and other
financial and statistical data included therein, as to which such
counsel need not express an opinion) comply as to form in all
material respects with the requirements of the Securities Act and
the Rules.
(M) The Registration Statement has become effective under
the Securities Act, and no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are
threatened, pending or contemplated.
To the extent deemed advisable by such counsel, they may rely as
to matters of fact on certificates of responsible officers of the Company and
public officials and on the opinions of other counsel satisfactory to the
Representatives as to matters which are governed by laws other than the laws of
the State of New York, the Commonwealth of Massachusetts and the Federal laws of
the United States; provided that such counsel shall state that in their opinion
the Underwriters and they are justified in relying on such other opinions.
Copies of such certificates and other opinions shall be furnished to the
Representatives and counsel for the Underwriters.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the Representatives and representatives of the
independent certified public accountants of the Company, at which conferences
the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel is not passing upon and does
not assume any responsibility for the accuracy,
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completeness or fairness of the statements contained in the Registration
Statement and the Prospectus (except as specified in the foregoing opinion), on
the basis of the foregoing, no facts have come to the attention of such counsel
which lead such counsel to believe that the Registration Statement at the time
it became effective (except with respect to the financial statements and notes
and schedules thereto and other financial data, as to which such counsel need
express no belief) contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus as amended or
supplemented (except with respect to the financial statements and notes and
schedules thereto and other financial data, as to which such counsel need make
no statement) on the date thereof contained any untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(i) an opinion from ____________________, counsel for the Selling
Stockholders, addressed to the Representatives, dated the Firm Shares
Closing Date, stating in effect that:
(A) Assuming that the Underwriters acquire their respective
interests in the Shares to be sold by the Selling Stockholders in
good faith and without notice of any adverse claims (within the
meaning of Section 8-302 of the Uniform Commercial Code), upon
delivery to the Underwriters of such Shares registered in their
names, the Underwriters will acquire good and marketable title to
such Shares free and clear of all liens, charges, claims,
security interests, encumbrances, pledges, stockholders'
agreements, voting trusts and any other restrictions whatsoever.
(B) The execution, delivery and performance of this
Agreement, the Power of Attorney and the Custody Agreement and
the consummation of the transactions to be performed by each such
Selling Stockholder contemplated hereby and thereby (including,
without limitation, the delivery and sale of the Shares to be
delivered and sold by such Selling Stockholder hereunder and
thereunder), will not give rise to a right to terminate or
accelerate the due date of any payment due under, or conflict
with or result in the breach or violation of any term or
provision of, or constitute a default (or any event which with
notice or lapse of time, or both would constitute a default)
under, or require consent or waiver under, or result in the
execution or imposition of any lien, charge or encumbrance upon
any properties or assets of such Selling Stockholder pursuant to
the terms of any indenture, mortgage, deed of trust, note or
other agreement or instrument to which such Selling Stockholder
is a party or bound or by which it or any of such Selling
Stockholder's assets, properties or businesses are subject or
affected, or any franchise, license, consent, certificate,
permit, judgment, decree, order, notice, plan, code, statute,
rule or regulation of which such counsel is aware or result in
the creation of imposition of any lien, charge, claim,
encumbrance, security interest or restriction whatsoever upon the
Shares to be sold by such Selling Stockholder.
(C) No consent, approval, authorization, license,
certificate, permit or order of any court, governmental or
regulatory agency, authority or body or financial institution is
required in connection
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with the performance of this Agreement by each Selling
Stockholder or the consummation of the transactions contemplated
hereby, by the Power of Attorney or by the Custody Agreement,
including the delivery and sale of the Shares to be delivered and
sold by such Selling Stockholder, except such as have been
obtained under the Securities Act and such as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the several
Underwriters.
(D) Each of this Agreement, the Power of Attorney and the
Custody Agreement has been duly and validly authorized, executed
and delivered by each Selling Stockholder and constitutes a
legal, valid, and binding obligation of such Selling Stockholder,
enforceable against such Selling Stockholder in accordance with
its terms, except (i) as such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (ii) to the extent that rights to
indemnity or contribution under this Agreement may be limited by
Federal and state securities laws or the public policy underlying
such laws.
To the extent deemed advisable by such counsel, they may rely as
to matters of fact on certificates of the Selling Stockholders and on the
opinions of other counsel satisfactory to the Representatives as to matters
which are governed by laws other than the laws of the State of New York, the
Commonwealth of Massachusetts and the Federal laws of the United States;
provided that such counsel shall state that in their opinion the Underwriters
and they are justified in relying on such other opinions. Copies of such
certificates and other opinions shall be furnished to the Representatives and
counsel for the Underwriters.
(h) All proceedings taken in connection with the sale of the Firm
Shares and the Option Shares as herein contemplated shall be reasonably
satisfactory in form and substance to the Representatives and their counsel
and the Underwriters shall have received from Hale and Dorr LLP a favorable
opinion, addressed to the Representatives and dated such Closing Date, with
respect to the Shares, the Registration Statement and the Prospectus, and
such other related matters, as the Representatives may reasonably request,
and the Company shall have furnished to Hale and Dorr LLP such documents as
they may reasonably request for the purpose of enabling them to pass upon
such matters.
(i) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives, and dated such Closing Date,
of an executive officer of the Company to the effect that the signer of
such certificate has reviewed and understands the provisions of Section
517.075 of the Florida Statutes, and represents that the Company has
complied, and at all times will comply, with all provisions of Section
517.075 and further, that as of such Closing Date, neither the Company nor
any of its affiliates does business with the government of Cuba or with any
person or affiliate located in Cuba.
(j) The Representatives shall have received from each of the
stockholders listed on schedule III hereto and each director and executive
officer of the Company the enforceable written agreements described in
Section 4(o).
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7. Covenants of the Company.
------------------------
(A) The Company covenants and agrees as follows:
(a) The Company shall prepare the Prospectus in a form approved by the
Representatives and 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, and shall promptly advise the Representatives (i)
when any amendment to the Registration Statement shall have become
effective, (ii) of any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for any additional information,
(iii) of the prevention or suspension of the use of any preliminary
prospectus or the Prospectus or of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose and (iv)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The
Company shall not file any amendment of the Registration Statement or
supplement to the Prospectus unless the Company has furnished the
Representatives a copy for its review prior to filing and shall not file
any such proposed amendment or supplement to which the Representatives
reasonably object. The Company shall use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act and the Rules, any event
occurs as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall be
necessary to amend or supplement the Prospectus to comply with the
Securities Act or the Rules, the Company promptly shall prepare and file
with the Commission, subject to the second sentence of paragraph (a) of
this Section 7(A), an amendment or supplement which shall correct such
statement or omission or an amendment which shall effect such compliance.
(c) The Company shall make generally available to its security holders
and to the Representatives as soon as practicable, but not later than 45
days after the end of the 12-month period beginning at the end of the
fiscal quarter of the Company during which the Effective Date occurs (or 90
days if such 12-month period coincides with the Company's fiscal year), an
earning statement (which need not be audited) of the Company, covering such
12-month period, which shall satisfy the provisions of Section 11(a) of the
Securities Act or Rule 158 of the Rules.
(d) The Company shall furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including all exhibits thereto and amendments thereof), and to
each other Underwriter a copy of the Registration Statement (without
including all exhibits thereto and all amendments thereof), and, so long as
delivery of a prospectus by an underwriter or dealer may be required by the
Securities Act or the Rules, as
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many copies of any preliminary prospectus and the Prospectus and any
amendments thereof and supplements thereto as the Representatives may
reasonably request.
(e) The Company shall cooperate with the Representatives and their
counsel in endeavoring to qualify the Shares for offer and sale under the
laws of such jurisdictions as the Representatives may designate and shall
maintain such qualifications in effect so long as required for the
distribution of the Shares; provided, however, that the Company shall not
be required in connection therewith, as a condition thereof, to qualify as
a foreign corporation or to execute a general consent to service of process
in any jurisdiction or subject itself to taxation as doing business in any
jurisdiction.
(f) For a period of five years after the date of this Agreement, the
Company shall supply to the Representatives and to each other Underwriter
who may so request in writing, copies of such financial statements and
other periodic and special reports as the Company may from time to time
distribute generally to the holders of any class of its capital stock and
to furnish to the Representatives a copy of each annual or other report it
shall be required to file with the Commission (including the Report on Form
SR required by Rule 463 of the Rules).
(g) Without the prior written consent of the Representatives, for a
period of 180 days after the date of this Agreement, the Company shall not
issue, sell or register with the Commission (other than on Form S-8 or on
any successor form), or otherwise dispose of, directly or indirectly, any
equity securities of the Company (or any securities convertible into or
exercisable or exchangeable for equity securities of the Company), except
for the issuance of the Shares pursuant to the Registration Statement, and
the issuance of shares pursuant to the Company's existing stock option plan
or bonus plan. In the event that during this period, (i) any shares are
issued pursuant to the Company's existing stock option plan or bonus plan
or (ii) any registration is effected on Form S-8 or on any successor form,
the Company shall obtain the written agreement of such grantee or purchaser
or holder of such registered securities that, for a period of 180 days
after the date of this Agreement, such person will not, without the prior
written consent of the Representatives, offer for sale, sell, distribute,
grant any option for the sale of, or otherwise dispose of, directly or
indirectly, or exercise any registration rights with respect to, any shares
of Common Stock (or any securities convertible into, exercisable for, or
exchangeable for any shares of Common Stock) owned by such person.
(h) The Company shall cause each director and executive officer of the
Company and each stockholder set forth on Schedule III to this Agreement to
deliver to the Representatives his or her enforceable written agreement
that, except, in the case of a Selling Stockholder, for the sale of the
Shares to be sold by such Selling Stockholder pursuant to the Registration
Statement, he or she will not, without the prior written consent of
Oppenheimer & Co., Inc., directly or indirectly, Transfer, or offer,
contract or otherwise agree to Transfer, any Common Stock or any other
securities convertible into or exchangeable for Common Stock or any other
equity securities of the Company until 180 days after the date of this
Agreement, except for (i) sales to the several Underwriters pursuant to
this Agreement or (ii) pursuant to will or the laws of intestate
succession, provided the transferee thereof agrees in writing to be bound
by such restrictions.
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(i) On or before completion of this offering, the Company shall make
all filings required under applicable securities laws and by the NASDAQ
National Market System (including any required registration under the
Exchange Act).
(B) The Company agrees to pay, or reimburse if reasonably paid by the
Representatives, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses incident to
the public offering of the Shares and the performance of the obligations of the
Company and of the Selling Stockholders under this Agreement including those
relating to: (i) the preparation, printing, filing and distribution of the
Registration Statement including all exhibits thereto, each preliminary
prospectus, the Prospectus, all amendments and supplements to the Registration
Statement and the Prospectus, and the printing, filing and distribution of this
Agreement; (ii) the preparation and delivery of certificates for the Shares to
the Underwriters; (iii) the registration or qualification of the Shares for
offer and sale under the securities or Blue Sky laws of the various
jurisdictions referred to in Section 7(A)(e), including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
registration and qualification and the preparation, distribution and shipment of
preliminary and supplementary Blue Sky memoranda; (iv) the furnishing (including
costs of shipping and mailing) to the Representatives and to the Underwriters of
copies of each preliminary prospectus, the Prospectus and all amendments or
supplements to the Prospectus, and of the several documents required by this
Section to be so furnished, as may be reasonably requested for use in connection
with the offering and sale of the Shares by the Underwriters or by dealers to
whom Shares may be sold; (v) the filing fees of the National Association of
Securities Dealers, Inc. in connection with its review of the terms of the
public offering; (vi) the furnishing (including costs of shipping and mailing)
to the Representatives and to the Underwriters of copies of all reports and
information required by Section 7(A)(f); (vii) inclusion of the Shares for
quotation on the NASDAQ National Market System; and (viii) all transfer taxes,
if any, with respect to the sale and delivery of the Shares by the Company and
the Selling Stockholders to the Underwriters. Subject to the provisions of
Section 10, the Underwriters agree to pay, whether or not the transactions
contemplated hereby are consummated or this Agreement is terminated, all costs
and expenses incident to the performance of the obligations of the Underwriters
under this Agreement not payable by the Company pursuant to the preceding
sentence, including, without limitation, the fees and disbursements of counsel
for the Underwriters.
8. Indemnification.
---------------
(a) The Company and each Selling Stockholder agree, jointly and
severally, to indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act against any and all
losses, claims, damages and liabilities, joint or several (including any
reasonable investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding
or any claim asserted), to which they, or any of them, may become subject
under the Securities Act, the Exchange Act or other Federal or state law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in any preliminary
prospectus, the Registration Statement or the Prospectus or any amendment
thereof or supplement thereto, or arise out of or are based upon any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that such indemnity shall not inure to the
benefit of any Underwriter (or
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any person controlling such Underwriter) on account of any losses, claims,
damages or liabilities arising from the sale of the Shares to any person by
such Underwriter if such untrue statement or omission or alleged untrue
statement or omission was made in such preliminary prospectus, the
Registration Statement or the Prospectus, or such amendment or supplement,
in reliance upon and in conformity with information furnished in writing to
the Company by the Representatives on behalf of any Underwriter
specifically for use therein. Notwithstanding the foregoing, the liability
of each Selling Stockholder pursuant to the provisions of this Section 8(a)
shall be limited to an amount equal to the aggregate net proceeds received
by such Selling Stockholder from the sale of the Shares sold by such
Selling Stockholder hereunder. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Selling Stockholders, each person, if
any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, each director of the
Company, and each officer of the Company who signs the Registration
Statement, to the same extent as the foregoing indemnity from the Company
or such Selling Stockholder to each Underwriter, but only insofar as such
losses, claims, damages or liabilities arise out of or are based upon any
untrue statement or omission or alleged untrue statement or omission which
was made in any preliminary prospectus, the Registration Statement or the
Prospectus, or any amendment thereof or supplement thereto, contained in
the last paragraph of the cover page of the Prospectus, in the paragraph
relating to stabilization on the inside front cover page of the Prospectus
and the first four paragraphs under the caption "Underwriting" in the
Prospectus; provided, however, that the obligation of each Underwriter to
indemnify the Company or any Selling Stockholder (including any controlling
person, director or officer thereof) shall be limited to the net proceeds
received by the Company or the Selling Stockholder, as the case may be,
from such Underwriter.
(c) Any party that proposes to assert the right to be indemnified
under this Section will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a
claim is to be made against an indemnifying party or parties under this
Section, notify each such indemnifying party of the commencement of such
action, suit or proceeding, enclosing a copy of all papers served. No
indemnification provided for in Section 8(a) or 8(b) shall be available to
any party who shall fail to give notice as provided in this Section 8(c) if
the party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was prejudiced by the failure to
give such notice but the omission so to notify such indemnifying party of
any such action, suit or proceeding shall not relieve it from any liability
that it may have to any indemnified party for contribution or otherwise
than under this Section. In case any such action, suit or proceeding shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate in, and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and the approval by
the indemnified party of such counsel, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses, except as
provided below and except for the reasonable costs of investigation
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subsequently incurred by such indemnified party in connection with the
defense thereof. The indemnified party shall have the right to employ its
counsel in any such action, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the employment of
counsel by such indemnified party has been authorized in writing by the
indemnifying parties, (ii) the indemnified party shall have reasonably
concluded that there may be a conflict of interest between the indemnifying
parties and the indemnified party in the conduct of the defense of such
action (in which case the indemnifying parties shall not have the right to
direct the defense of such action on behalf of the indemnified party) or
(iii) the indemnifying parties shall not have employed counsel to assume
the defense of such action within a reasonable time after notice of the
commencement thereof, in each of which cases the fees and expenses of
counsel shall be at the expense of the indemnifying parties. An
indemnifying party shall not be liable for any settlement of any action,
suit, proceeding or claim effected without its written consent.
9. CONTRIBUTION. In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Section 8(a) or 8(b)
for any reason is unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b), then each indemnifying party shall contribute
to the aggregate losses, claims, damages and liabilities (including any
investigation, legal and other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claims asserted) to which the indemnified party may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the Shares or, if such allocation is not permitted by
applicable law or indemnification is not available as a result of the
indemnifying party not having received notice as provided in Section 8 hereof,
in such proportion as is appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company and the Selling
Stockholders on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, the Selling Stockholders and the
Underwriters shall be deemed to be in the same proportion as (x) the total
proceeds from the offering (net of underwriting discounts but before deducting
expenses) received by the Company or the Selling Stockholders, as set forth in
the table on the cover page of the Prospectus, bear to (y) the underwriting
discounts received by the Underwriters, as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company, the Selling
Stockholders or the Underwriters shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
related to information supplied by the Company, the Selling Stockholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company,
the Selling Stockholders and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined 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 above. Notwithstanding the provisions of
this Section 9, (i) in no case shall any Underwriter (except as may be provided
in the Agreement Among Underwriters) be liable or responsible for any amount in
excess of the underwriting discount applicable to the Shares purchased by such
Underwriter hereunder, (ii) the Company shall be liable and responsible for any
amount in excess of such underwriting discount and (iii) in no case shall any
Selling Stockholder be liable and responsible for any amount in excess of the
aggregate net proceeds of the sale of Shares received by such
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Selling Stockholder hereunder; provided, however, that 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. For purposes of this Section 9,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the Securities Act or Section 20(a) of the Exchange Act shall have the
same rights to contribution as such Underwriter, and each person, if any, who
controls the Company within the meaning of the Section 15 of the Securities Act
or Section 20(a) of the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to clauses
(i), (ii) and (iii) in the immediately preceding sentence of this Section 9. Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section, notify such party or parties from whom contribution may be
sought, but the omission so to notify such party or parties from whom
contribution may be sought shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this Section. No party shall be liable for
contribution, with respect to any action, suit, proceeding or claim settled
without its written consent. The Underwriter's obligations to contribute
pursuant to this Section 9 are several in proportion to their respective
underwriting commitments and not joint.
10. TERMINATION. This Agreement may be terminated with respect to the
Shares to be purchased on a Closing Date by the Representatives by notifying the
Company or the Selling Stockholders at any time
(a) in the absolute discretion of the Representatives at or before any
Closing Date: (i) if on or prior to such date, any domestic or
international event or act or occurrence has materially disrupted, or in
the opinion of the Representatives will in the future materially disrupt,
the securities markets; (ii) if there has occurred any new outbreak or
material escalation of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States is such as to make
it, in the judgment of the Representatives, inadvisable to proceed with the
offering; (iii) if there shall be such a material adverse change in general
financial, political or economic conditions or the effect of international
conditions on the financial markets in the United States is such as to make
it, in the judgment of the Representatives, inadvisable or impracticable to
market the Shares; (iv) if trading in the Shares has been suspended by the
Commission or trading generally on the New York Stock Exchange, Inc., on
the American Stock Exchange, Inc. or on the NASDAQ National Market System
has been suspended or limited, or minimum or maximum ranges for prices for
securities shall have been fixed, or maximum ranges for prices for
securities have been required, by said exchanges or by order of the
Commission, the National Association of Securities Dealers, Inc., or any
other governmental or regulatory authority; or (v) if a banking moratorium
has been declared by any state or Federal authority, or
(b) at or before any Closing Date, that any of the conditions
specified in Section 5 shall not have been fulfilled when and as required
by this Agreement.
If this Agreement is terminated pursuant to any of its provisions, neither
the Company nor any of the Selling Stockholders shall be under any liability to
any Underwriter (except as set forth in Section 7(B) and Sections 8 and 9), and
no Underwriter shall be under any liability to the Company, except that (y) if
this Agreement is terminated by the Representatives or the Underwriters because
of any
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failure, refusal or inability on the part of the Company or the Selling
Stockholders to comply with the terms or to fulfill any of the conditions of
this Agreement, the Company will reimburse the Underwriters for all
out-of-pocket expenses (including the reasonable fees and disbursements of their
counsel) incurred by them in connection with the proposed purchase and sale of
the Shares or in contemplation of performing their obligations hereunder and (z)
no Underwriter who shall have failed or refused to purchase the Shares agreed to
be purchased by it under this Agreement, without some reason sufficient
hereunder to justify cancellation or termination of its obligations under this
Agreement, shall be relieved of liability to the Company, the Selling
Stockholders or to the other Underwriters for damages occasioned by its failure
or refusal.
11. SUBSTITUTION OF UNDERWRITERS. If one or more of the Underwriters shall
fail (other than for a reason sufficient to justify the cancellation or
termination of this Agreement under Section 10) to purchase on any Closing Date
the Shares agreed to be purchased on such Closing Date by such Underwriter or
Underwriters, the Representatives may find one or more substitute underwriters
to purchase such Shares or make such other arrangements as the Representatives
may deem advisable or one or more of the remaining Underwriters may agree to
purchase such Shares in such proportions as may be approved by the
Representatives, in each case upon the terms set forth in this Agreement. If no
such arrangements have been made by the close of business on the business day
following such Closing Date,
(a) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall not exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date, then
each of the nondefaulting Underwriters shall be obligated to purchase such
Shares on the terms herein set forth in proportion to their respective
obligations hereunder; provided, that in no event shall the maximum number
of Shares that any Underwriter has agreed to purchase pursuant to Section 1
be increased pursuant to this Section 11 by more than one-ninth of such
number of Shares without the written consent of such Underwriter, or
(b) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall exceed 10% of the Shares that all
the Underwriters are obligated to purchase on such Closing Date, then the
Company shall be entitled to an additional business day within which it
may, but is not obligated to, find one or more substitute underwriters
reasonably satisfactory to the Representatives to purchase such Shares upon
the terms set forth in this Agreement.
In any such case, either the Representatives or the Company shall have the
right to postpone the applicable Closing Date for a period of not more than five
business days in order that necessary changes and arrangements (including any
necessary amendments or supplements to the Registration Statement or Prospectus)
may be effected by the Representatives and the Company. If the number of Shares
to be purchased on such Closing Date by such defaulting Underwriter or
Underwriters shall exceed 10% of the Shares that all the Underwriters are
obligated to purchase on such Closing Date, and none of the nondefaulting
Underwriters or the Company shall make arrangements pursuant to this Section
within the period stated for the purchase of the Shares that the defaulting
Underwriters agreed to purchase, this Agreement shall terminate with respect to
the Shares to be purchased on such Closing Date without liability on the part of
any nondefaulting Underwriter to the Company or the Selling Stockholders and
without liability on the part of the Company or the Selling Stockholders, except
in both cases as
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provided in Sections 7(B), 8, 9 and 10. The provisions of this Section shall not
in any way affect the liability of any defaulting Underwriter to the Company,
the Selling Stockholders or to the nondefaulting Underwriters arising out of
such default. A substitute underwriter hereunder shall become an Underwriter for
all purposes of this Agreement.
12. MISCELLANEOUS. The respective agreements, representations, warranties,
indemnities and other statements of the Company or its directors or officers, of
the Selling Stockholders and the Underwriters set forth in or made pursuant to
this Agreement shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or the
Selling Stockholders or any of the officers, directors or controlling persons
referred to in Sections 8 and 9 hereof, and shall survive delivery of and
payment for the Shares. The provisions of Sections 7(B), 8, 9 and 10 shall
survive the termination or cancellation of this Agreement.
This Agreement has been and is made for the benefit of the Underwriters,
the Company and the Selling Stockholders and their respective successors and
assigns, and, to the extent expressed herein, for the benefit of persons
controlling any of the Underwriters, or the Company, and directors and officers
of the Company, and their respective successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser of Shares from any
Underwriter merely because of such purchase.
All notices and communications hereunder shall be in writing and mailed or
delivered or by telephone or telegraph if subsequently confirmed in writing, (a)
if to the Representatives, c/o Oppenheimer & Co., Inc., Oppenheimer Tower, World
Financial Center, New York, New York 10281 Attention: Stanley B. Stern; (b) if
to the Company, to its agent for service as such agent's address appears on the
cover page of the Registration Statement; and (c) if to a Selling Stockholder,
to the Attorneys-in-Fact, c/o ______________.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to principles of conflict of laws.
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This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
Please confirm that the foregoing correctly sets forth the agreement among
us.
Very truly yours,
VOICETEK CORPORATION
By:
--------------------------
Name: Sheldon L. Dinkes
Title: Chief Executive
Officer
Confirmed:
OPPENHEIMER & CO., INC.
FIRST ALBANY CORPORATION
Acting severally on behalf of
themselves and as Representatives
of the several Underwriters named
in Schedule I annexed hereto
OPPENHEIMER & CO., INC.
By:
---------------------------------------
Name: Stanley B. Stern
Title: Managing Director
FIRST ALBANY CORPORATION
By:
---------------------------------------
Name: Kenneth Mabbs
Title: Director - Corporate Finance
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SCHEDULE I
NUMBER OF FIRM SHARES TO
NAME BE PURCHASED
---- ------------------------
Oppenheimer & Co., Inc.
First Albany Corporation
Total
-----
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SCHEDULE II
SELLING STOCKHOLDERS
NUMBER OF FIRM SHARES TO
SELLING STOCKHOLDER BE SOLD
------------------- ------------------------
Total
-----
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SCHEDULE III
STOCKHOLDERS EXECUTING CERTAIN
AGREEMENTS PURSUANT TO SECTION 7(A)(h)
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