1,000,000 UNITS
STREAMEDIA COMMUNICATIONS, INC.
(a Delaware corporation)
Each Unit Consisting of
One Share of Common Stock and
One Redeemable Common Stock Purchase Warrant
December 20, 1999
UNDERWRITING AGREEMENT
INSTITUTIONAL EQUITY CORPORATION
8214 Westchester
Suite 500
Dallas, Texas 75225
CAPITAL WEST SECURITIES, INC.
One Leadership Square
Suite 200
211 North Robinson
Oklahoma City, Oklahoma 73102
As Co-Representatives of the Several Underwriters
Gentlemen:
1. INTRODUCTION. Streamedia Communications, Inc., a Delaware
corporation (the "Company"), proposes to issue and sell to the several
underwriters named in Schedule A attached hereto (the "Underwriters") for whom
you are acting as representatives (the "Representatives") pursuant to this
Underwriting Agreement (this "Agreement") an aggregate of One Million
(1,000,000) Units (the "Units") of Streamedia Communications, each Unit
consisting of (i) one share (a "Share") of common stock, $0.001 par value per
share (the "Common Stock"), and (ii) one redeemable Common Stock purchase
warrant to purchase one share of Common Stock (a "Redeemable Warrant"), at a
price of Eight and 50/100 Dollars ($8.50) per Unit. The Units and the Shares and
Redeemable Warrants included in the Units, each as described in the immediately
preceding sentence, are herein collectively called the "Firm Securities." In
addition, the Selling Shareholders (as hereinafter defined) and the Company
propose to grant to the Underwriters an option to purchase all or any part of an
aggregate of One Hundred Fifty Thousand (150,000) additional Units (the "Option
Securities") consisting of 150,000 shares (the "Option Shares") of Common Stock
(19,735 of which are owned by the shareholders of the Company named in Schedule
B attached hereto (the "Selling Shareholders") and 130,265 of which will be
issued by the Company) and 150,000 Redeemable Warrants (the "Option Warrants"),
at a price of Eight and 50/100 Dollars ($8.50) per Unit, solely for covering
over-allotments, if any. The 1,150,000 shares of Common Stock issuable upon
exercise of the Redeemable Warrants included as part of the Firm Securities and
Option Securities are hereinafter referred to as "Public Warrant Shares." The
Firm Securities, Option Securities and Public Warrant Shares are hereinafter
sometimes referred to as the "Offered Securities."
The Shares and Redeemable Warrants will automatically separate on
January 19, 2000 and may be separately traded thereafter. Each Redeemable
Warrant shall become exercisable on December 20, 2000 and remain exercisable
thereafter until five (5) years from the date of the Prospectus (as hereinafter
defined), and shall entitle the holder to purchase one share of Common Stock at
a price equal to $12.75 per share, which price is subject to adjustment in
certain circumstances to prevent dilution. Commencing December 21, 2001, the
Company shall have the right, at any time, to call each of the Redeemable
Warrants for redemption upon not less than thirty (30) days' prior written
notice at any time at a redemption price of $.05 per Redeemable Warrant, subject
to adjustment, provided that the closing sale price of the Common Stock on any
national securities exchange, or Closing Bid Price (as hereinafter defined), has
equaled or exceeded $12.75 per share (subject to adjustment in certain
circumstances to prevent dilution) for ten (10) consecutive trading days within
the 30 day period immediately preceding the date notice of redemption is given
(the "Redemption Price"). "Closing Bid Price" shall mean the closing bid
quotation on The Nasdaq SmallCap Market (the "NSCM") as reported by Bloomberg
Financial Markets ("Bloomberg"), or, if the NSCM is not the principal trading
market for such security, the last closing bid price of such security on the
principal securities exchange or trading market where such security is listed or
traded as reported by Bloomberg, or if the foregoing do not apply, the last
closing bid price of such security in the over-the-counter market on the pink
sheets or bulletin board for such security as reported by Bloomberg, or, if no
closing bid price is reported for such security by Bloomberg, the last closing
trade price of such security as reported by Bloomberg. If the Closing Bid Price
cannot be calculated for such security on such date on any of the foregoing
bases, the Closing Bid Price of such security on such date shall be the fair
market value as reasonably determined in good faith by the Board of Directors of
the Company. The Redeemable Warrants will be issued pursuant to a warrant
agreement dated the date hereof between the Company and American Securities
Transfer, Incorporated (the "Public Warrant Agreement") a form of which has been
filed as Exhibit 4.1 to the Registration Statement.
The Company also proposes to issue and sell to the Representatives,
pursuant to the terms of a warrant agreement, dated as of the First Closing Date
(as defined in Section 4(c) below), between the Representatives and the Company
(the "Underwriters' Warrant Agreement"), warrants (the "Underwriters' Warrants")
to purchase up to 100,000 Units for One Hundred Dollars ($100). The
Underwriters' Warrants shall be exercisable during the four-year period
commencing twelve (12) months from the Effective Date (as defined in Section
2(a) below), at a price per unit of 135% of the initial public offering price,
subject to adjustment in certain events to protect against dilution. The 100,000
Units issuable upon exercise of the Underwriters' Warrants are hereinafter
referred to as the "Underwriters' Units"; the 100,000 shares of Common Stock
underlying the Underwriters' Units are hereinafter referred to as the
"Underwriters' Shares"; the 100,000 Redeemable Warrants underlying the
Underwriters' Units are hereinafter referred to as the "Underwriters' Redeemable
Warrants"; the 100,000 shares of Common Stock issuable upon exercise of the
Underwriters' Redeemable Warrants are hereinafter referred to as the
"Underwriters' Warrant Shares"; and the Underwriters' Warrants, the
Underwriters' Units, the Underwriters' Shares, the Underwriters' Redeemable
Warrants and the Underwriters' Warrant Shares are sometimes hereinafter referred
to collectively as the "Underwriters' Securities." The Offered Securities and
the Underwriters' Securities are sometimes hereinafter referred to collectively
as the "Registered Securities."
The Registered Securities are more fully described in the Registration
Statement and the Prospectus referred to below.
The several Underwriters have advised the Company that they desire to
purchase the Units. The Company confirms the agreements made by it with respect
to the purchase of the Units by the Underwriters as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
First Closing Date (as defined in Section 4(c) below), and as of the Option
Closing Date (as defined in Section 4(c) below), if any, and agrees with each
Underwriter, as follows:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form SB-2 (No. 333-78591)
covering the registration of the Registered Securities under the Securities Act
of 1933, as amended (the "Act"), including the related preliminary prospectus or
prospectuses. Promptly after execution and delivery of this Agreement, the
Company will either (i) prepare and file a prospectus in accordance with the
provisions of Rule 430A ("Rule 430A") of the rules and regulations of the
Commission under the Act (the "Rules and Regulations") and paragraph (b) of Rule
424 ("Rule 424(b)") of the Rules and Regulations or (ii) if the Company has
elected to rely upon Rule 434 ("Rule 434") of the Rules and Regulations, prepare
and file a term sheet (a "Term Sheet") in accordance with the provisions of Rule
434 and Rule 424(b). The information included in such prospectus or in such Term
Sheet, as the case may be, that was omitted from such registration statement at
the time it became effective but that is deemed to be part of such registration
statement at the time it became effective (i) pursuant to paragraph (b) of Rule
430A is referred to as "Rule 430A Information" or (ii) pursuant to paragraph (d)
of Rule 434 is referred to as "Rule 434 Information." Each prospectus used
before such registration statement became effective, and any prospectus that
omitted, as applicable, the Rule 430A Information or the Rule 434 Information
that was used after such effectiveness and prior to the execution and delivery
of this Agreement, is herein called a "Preliminary Prospectus." Such
registration statement, including the exhibits thereto and schedules thereto, at
the time it became effective (the "Effective Date") and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the Rules and Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final prospectus in
the form first furnished to the Underwriters for use in connection with the
offering of the Registered Securities is herein called the "Prospectus." If Rule
434 is relied on, the term "Prospectus" shall refer to the preliminary
prospectus dated November 29, 1999, together with the Term Sheet, and all
references in this Agreement to the date of the Prospectus shall mean the date
of the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any Preliminary Prospectus, the Prospectus or any Term
Sheet or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System ("EDGAR"). The Company will not, so
long as any Redeemable Warrants, Underwriters' Warrants or Underwriters'
Redeemable Warrants remain outstanding and exercisable, file any amendment to
the Registration Statement or any amendment or supplement to any Preliminary
Prospectus or the Prospectus unless the Company has given reasonable and prior
notice thereof to the Representatives and counsel for the Underwriters and none
of which shall have reasonably objected within a reasonable period of time prior
to the filing thereof.
(b) Neither the Commission nor any state regulatory authority has
issued any order preventing or suspending the use of any Preliminary Prospectus,
nor has the Commission or any such authority instituted or threatened to
institute any proceedings with respect to such an order. At the times the
Registration Statement, any 462(b) Registration Statement and any post-effective
amendments thereto becomes effective and at all times subsequent thereto up to
and on the First Closing Date (as defined in Section 4(c) below) or the Option
Closing Date (as defined in Section 4(c) below), as the case may be, (i) the
Registration Statement, the 462(b) Registration Statement, the Prospectus, and
any amendments or supplements to any thereof, complied and will comply in all
material respects to the requirements of the Act and the Rules and Regulations,
(ii) the Registration Statement, the 462(b) Registration Statement, the
Prospectus, and any amendments or supplements to any thereof, did not and will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make statements
therein not misleading; provided, however, that the Company makes no
representations, warranties or agreements as to information contained in or
omitted from the Registration Statement or Prospectus in reliance upon, and in
conformity with, written information furnished to the Company by or on behalf of
the Underwriters specifically for use in the preparation thereof; and (iii) if
Rule 434 is used, the Company will comply with the requirements of Rule 434 and
the Prospectus shall not be "materially different," as such term is used in Rule
434, from the prospectus included in the Registration Statement.
Each Preliminary Prospectus and each Prospectus filed as a part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the Rules and Regulations, complied when so
filed in all material respects with the Rules and Regulations, and each
Preliminary Prospectus and each Prospectus delivered to the Underwriters for use
in connection with the offering of the Registered Securities were identical to
the electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(c) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with full power and authority (corporate and other) to own its
properties and conduct its business as described in the Registration Statement
and Prospectus and is duly qualified to do business as a foreign corporation and
is in good standing in all other jurisdictions in which the nature of its
business or the character or location of its properties requires such
qualification, except where failure to so qualify will not have a material
adverse effect on the Company's business, properties, assets, condition
(financial or other) or results of operations (a "Material Adverse Effect"). The
Company holds all authorizations, approvals, licenses, certificates, franchises
and permits from state, federal or other regulatory authorities necessary for
the conduct of its business as presently conducted and as described in or
contemplated by the Registration Statement and is in compliance with all laws
and regulations and all orders and decrees applicable to it or to such business
or assets and there are no proceedings pending or, to the best knowledge of the
Company, threatened, seeking to cancel, terminate or limit such authorizations,
approvals, licenses, certificates, franchises or permits.
(d) The authorized, issued and outstanding capital stock of the Company
as of September 30, 1999 is as set forth in the Prospectus under
"Capitalization"; all shares of issued and outstanding capital stock of the
Company set forth thereunder have been duly authorized, validly issued and are
fully paid and non-assessable; except as set forth in the Prospectus, no
options, warrants, or other rights to purchase, agreements or other obligations
to issue, or agreements or other rights to convert any obligation into, any
shares of capital stock of the Company have been granted or entered into by the
Company; and the capital stock conforms to all statements relating thereto
contained in the Registration Statement and Prospectus. The issuances and sales
of all such capital stock complied in all respects with applicable federal and
state securities laws; the holders thereof have no rights of rescission with
respect thereto, and are not subject to personal liability by reason of being
such holders; and none of such securities were issued in violation of the
preemptive rights of any holders of any security of the Company or similar
contractual rights granted by the Company.
(e) This Agreement, the Public Warrant Agreement and the Underwriters'
Warrant Agreement have been duly and validly authorized by the Company, and this
Agreement constitutes, and the Public Warrant Agreement and the Underwriters'
Warrant Agreement, when executed and delivered pursuant to this Agreement
(assuming due execution by the Underwriters and/or the appropriate parties to
such agreements), will each constitute, a valid and binding agreement of the
Company, enforceable against the Company in accordance with their respective
terms, except (i) as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or similar laws
affecting creditors' rights generally, (ii) as enforceability of any
indemnification, contribution or exculpation provision may be limited under
applicable federal and state securities laws, and (iii) that the remedy of
specific performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought ((i), (ii) and (iii) are hereinafter
referred to as the "Enforceability Exceptions").
(f) The Company has full power and lawful authority to authorize, issue
and sell the Registered Securities to be sold by it hereunder on the terms and
conditions set forth herein, and no consent, approval, authorization or other
order of, or registration or filing with, any court or other governmental
authority or agency is required in connection with such authorization, execution
and delivery or with the authorization, issue and sale of the Registered
Securities, except such as may be required and have been obtained under the Act,
state securities or blue sky laws and from the National Association of
Securities Dealers, Inc. ("NASD").
(g) The Units and the Shares have been duly authorized and, when issued
and delivered pursuant to this Agreement, will be duly authorized, validly
issued, fully paid and non-assessable. The Redeemable Warrants have been duly
authorized and, when issued and delivered pursuant to this Agreement, will
constitute valid and legally binding obligations of the Company enforceable in
accordance with their terms, subject to the Enforceability Exceptions, and will
be entitled to the benefits provided by the Public Warrant Agreement. The Public
Warrant Shares have been reserved for issuance upon exercise of the Redeemable
Warrants and, when issued in accordance with the terms of the Redeemable
Warrants and Public Warrant Agreement, will be duly authorized, validly issued,
fully paid and non-assessable. The Underwriters' Warrants have been duly
authorized and, when issued and delivered pursuant to this Agreement and the
Underwriters' Warrant Agreement, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms, subject
to the Enforceability Exceptions, and will be entitled to the benefits provided
by the Underwriters' Warrant Agreement. The Underwriters' Shares have been
reserved for issuance upon exercise of the Underwriters' Warrants and, when
issued in accordance with the terms of the Underwriters' Warrants and
Underwriters' Warrant Agreement, will be duly authorized, validly issued, fully
paid and non-assessable. The Underwriters' Redeemable Warrants, when issued in
accordance with the terms of the Underwriters' Warrants and Underwriters'
Warrant Agreement, will be duly authorized and will constitute valid and legally
binding obligations of the Company enforceable in accordance with their terms,
subject to the Enforceability Exceptions, and will be entitled to the benefits
provided by the Public Warrant Agreement. The Underwriters' Warrant Shares have
been reserved for issuance upon exercise of the Underwriters' Redeemable
Warrants and, when issued in accordance with the terms of the Underwriters'
Redeemable Warrants and the Public Warrant Agreement, will be duly authorized,
validly issued, fully paid and non-assessable. The issuance of any of the
Registered Securities will not violate or otherwise be subject to the preemptive
rights of any holders of any security of the Company or similar contractual
rights granted by the Company, and none of the holders of any of the Registered
Securities will be subject to personal liability by reason of being such
holders.
(h) The Company is not in violation of any term or provision of its
Certificate of Incorporation or Bylaws or of any contract or agreement or of any
statute or any order, rule or regulation or of any other regulatory authority or
other governmental body having jurisdiction over the Company. Neither the
execution and delivery of this Agreement, nor the issuance and/or sale of any of
the Registered Securities, nor the consummation of any of the transactions
contemplated herein, nor the compliance by the Company with the terms and
provisions hereof, has conflicted with or will conflict with, or has resulted in
or will result in a breach of, any of the terms and provisions, or has
constituted or will constitute a default under, or has resulted in or will
result in the creation or imposition of any lien, charge or encumbrance upon the
property or assets of the Company pursuant to the terms of, any indenture,
mortgage, deed of trust, note, loan or credit agreement or any other agreement
or instrument evidencing an obligation for borrowed money, or any other
agreement or instrument to which the Company is a party, or by which the Company
may be bound, or to which any of the property or assets of the Company is
subject; nor will such actions result in any violation of the provisions of the
Certificate of Incorporation or the Bylaws of the Company or of any contract or
agreement, or of any statute or any order, rule or regulation applicable to the
Company or of any other regulatory authority or other governmental body having
jurisdiction over the Company.
(i) Except as described in the Prospectus, no default exists in the due
performance and observance of any term, covenant or condition of any license,
contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or
any other agreement or instrument to which the Company is a party or by which
the Company may be bound or to which any of the property or assets of the
Company are subject.
(j) Except as described in the Prospectus, the Company has good and
marketable title to all properties and assets described in the Prospectus as
owned by it, free and clear of all liens, charges, encumbrances or restrictions,
except such as are not materially significant or important in relation to its
business; all of the leases and subleases under which the Company is the lessor
or sublessor of properties or assets or under which the Company holds properties
or assets as lessee or sublessee as described in the Prospectus are in full
force and effect, and, except as described in the Prospectus, the Company is not
in default with respect to any of the terms or provisions of any of such leases
or subleases, and no claim has been asserted by anyone adverse to rights of the
Company as lessor, sublessor, lessee or sublessee under any of the leases or
subleases mentioned above, or affecting or questioning the right of the Company
to continued possession of the leased or subleased premises or assets under any
such lease or sublease except as described or referred to in the Prospectus; and
the Company owns or leases all properties and assets described in the Prospectus
as are necessary to its operations as now conducted and, except as otherwise
stated in the Prospectus, as proposed to be conducted as set forth in the
Prospectus.
(k) Grant Thornton LLP, who have audited and given their reports on
certain financial statements filed and to be filed with the Commission as a part
of the Registration Statement, which are incorporated in the Prospectus, are,
with respect to the Company, independent public accountants as required by the
Act and the Rules and Regulations.
(l) The financial statements, together with related notes, set forth in
the Prospectus or the Registration Statement present fairly the financial
position and results of operations and changes in cash flow position of the
Company on the basis stated in the Registration Statement, at the respective
dates and for the respective periods to which they apply. Said statements and
related notes have been prepared in accordance with generally accepted
accounting principles applied on a basis which is consistent during the periods
involved, except as otherwise stated therein, and all adjustments necessary for
a fair presentation of results for such periods have been made. The information
set forth under the captions "Dilution," "Capitalization," and "Selected
Financial Information" in the Prospectus fairly present, on the basis stated in
the Prospectus, the information included therein.
(m) Subsequent to the respective dates as of which information is given
in the Registration Statement and Prospectus, (i) the Company has not incurred
any material liabilities or obligations, direct or contingent, or entered into
any material transactions other than in the ordinary course of business; (ii)
there has not been any change in the capital stock, funded debt (other than
regular repayments of principal and interest on existing indebtedness) or other
securities of the Company; (iii) there has not been any adverse change in the
condition (financial or otherwise), business, operations, income, net worth or
properties, including any loss or damage to the properties, of the Company
(whether or not such loss is insured against); (iv) the Company has not paid or
declared any dividend or other distribution on its Common Stock or its other
securities or redeemed or repurchased any of its Common Stock or other
securities; and (v) the Company has not become a party to, and neither the
business nor the property of the Company has become the subject of, any
litigation whether or not in the ordinary course of business.
(n) Except as set forth in the Prospectus, (i) there is not now pending
or, to the best knowledge of the Company, threatened, any action, suit or
proceeding to which the Company or any of the officers, directors or
securityholders thereof is a party before or by any court or governmental agency
or body; (ii) there are no actions, suits or proceedings to which the Company is
a party related to environmental matters or related to discrimination on the
basis of age, sex, religion or race; and (iii) there are no labor disputes
involving the employees of the Company that exist or are imminent.
(o) There is no contract or other document which is required by the Act
or by the Rules and Regulations to be filed as an exhibit to the Registration
Statement which has not been so filed. Each contract which is filed as an
exhibit to the Registration Statement is and shall be in full force and effect
at each Closing Date (as defined in Section 4(c) below) or shall have been
terminated in accordance with its terms or as set forth in the Registration
Statement and Prospectus. No party to any such contract has given notice to the
Company of the cancellation of or shall have threatened to cancel any such
contract, and, except as set forth in the Prospectus, the Company is not or
shall not be in default thereunder.
(p) Except as set forth in the Prospectus, the Company has filed all
necessary federal, state, local and foreign income and franchise tax returns and
has paid all taxes shown as due thereon; there is no tax deficiency which has
been, or to the best knowledge of the Company, might be asserted against the
Company; and the Company has established adequate reserves for such taxes which
are not yet due and payable.
(q) None of the activities or business of the Company are in violation
of, or cause the Company to violate, any law, rule, regulation or order of the
United States, any state, county or locality, or of any agency or body of the
United States or of any state, county or locality.
(r) The Company maintains insurance, which is in full force and effect,
of the types and in the amounts currently adequate for its business, including
but not limited to personal injury and product liability insurance, insurance
covering all personal property owned or leased by the Company against theft,
damage, destruction, acts of vandalism and all other risks customarily insured
against. The Company has not (i) failed to give notice or present any insurance
claim with respect to any matter, including but not limited to the Company's
business, property or employees, under any insurance policy or surety bond in a
due and timely manner, (ii) had any disputes or claims against any underwriter
of such insurance policies or surety bonds or has failed to pay any premiums due
and payable thereunder, or (iii) failed to comply with all conditions contained
in such insurance policies and surety bonds. To the best knowledge of the
Company, there are no facts or circumstances under any such insurance policy or
surety bond which would relieve any insurer of its obligation to satisfy in full
any valid claim of the Company.
(s) The Company has currently pending trademark applications with
regard to trademarks, service marks and trade names necessary for the conduct of
its business as described in the Prospectus and owns or possesses adequate
rights to domain names, copyrights, know-how (including all other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), technology, trade secrets, designs, processes, works of authorship,
computer programs and technical data and information (collectively,
"Intellectual Property") necessary for the conduct of its business as described
in the Prospectus or that are material to the development, manufacture,
operation and sale of all products and services sold or proposed to be sold by
the Company, and, except as set forth in Schedule 2(r), the Company has not
received any notice of infringement of or conflict with, and the Company, to the
best of its knowledge, is not infringing or in conflict with asserted rights of
others with respect to, any Intellectual Property.
(t) Except as set forth in the Prospectus, the Company is not obligated
or under any liability whatsoever to make any payment by way of royalties, fees
or otherwise to any owner or licensee of, or other claimant to, any Intellectual
Property, with respect to the use thereof or in connection with the conduct of
its business or otherwise. In addition, the Company owns and has the
unrestricted right to use all Intellectual Property free and clear of and
without violating any right, lien, or claim of others, including without
limitation, former employers of its employees. The Company has no knowledge of
any development by any other person or entity of trade secrets or items of
technical information similar to those of the Company. The Company has taken
reasonable security measures to protect the secrecy, confidentiality and value
of all of its Intellectual Property in all material aspects.
(u) Except as set forth in Schedule 2(u), the Company is not obligated
to pay and has not paid within the past twelve (12) months, and has not
obligated, and will not obligate, the Underwriters to pay, any finder's fee in
connection with the underwriting contemplated hereby or any other fee (cash,
securities or otherwise) in consideration of financial, consulting or investment
banking services.
(v) No officer or director of the Company or any "affiliate" or
"associate" (as such terms are defined in Rule 405 of the Rules and Regulations)
of the Company. No such officer or director has taken, and each officer or
director has agreed that he will not take, directly or indirectly, any action
designed to or which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security issued by the
Company.
(w) Except as set forth in the Prospectus under "Certain Relationships
and Related Transactions," there are no existing agreements, arrangements, or
transactions, between or among the Company and any officer, director or 5%
stockholder of the Company, or any partner, affiliate or associate of any of the
foregoing persons or entities; no officer, director or greater than 5%
stockholder of the Company, and no affiliate or associate of any of the
foregoing persons or entities, has or has had, either directly or indirectly,
(i) an interest (other than ownership of an immaterial number of shares of
capital stock of an entity whose securities are publicly traded) in any person
or entity which (A) furnishes or sells products or services which are furnished
or sold or are proposed to be furnished or sold by the Company, or (B) purchases
from or sells or furnishes to the Company any goods or services, or (ii) a
beneficial interest in any contract or agreement to which the Company is a party
or by which it may be bound or affected.
(x) The minute books of the Company have been made available to the
Representatives and contain a complete summary of all meetings and actions of
the directors and stockholders of the Company since the time of its date of
organization, and reflect all transactions referred to in such minutes
accurately in all respects.
(y) The Company is not aware of any bankruptcy, labor disturbance or
other event affecting any of its principal suppliers or customers which is
reasonably likely to result in a Material Adverse Effect.
(z) The Registered Securities and all the other securities of the
Company conform to all statements in relation thereto in the Registration
Statement.
(aa) Except for the registration rights granted under the Underwriters'
Warrant Agreement, no holder of any securities of the Company has the right to
require that the Company include such securities in the Registration Statement
or any registration statement to be filed by the Company.
(bb) The Company has filed an application for the quotation of the
Units, Shares and Redeemable Warrants on The Nasdaq SmallCap Market and has used
its best efforts to cause such application to be accepted. The Company has filed
a registration statement with the Commission pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and has used
its best efforts to have same declared effective by the Commission on an
accelerated basis on the Effective Date.
(cc) Neither the Company nor any officer, director or other agent
thereof has, acting on behalf of the Company, at any time (i) made any
contributions to any candidate for political office in violation of law, or
failed to disclose fully any such contributions in violation of law, (ii) made
any payment to any state, federal or foreign governmental officer or official,
or any other person charged with similar public or quasi-public duties, other
than payments required or not prohibited by law or (iii) made any payment of
funds of the Company or received or retained any funds in violation of any law,
rule or regulation and under circumstances requiring the disclosure of such
payment, receipt or retention of funds in the Prospectus. The Company's internal
accounting controls and procedures are sufficient to cause the Company to comply
with the Foreign Corrupt Practices Act of 1977, as amended.
(dd) On each Closing Date (as defined in Section 4(c) below) all
transfer or other taxes, (including franchise, capital stock or other tax, other
than income taxes, imposed by any jurisdiction) if any, which are required to be
paid in connection with the sale and transfer of the Units to the Underwriters
hereunder will have been fully paid or provided for by the Company and all laws
imposing such taxes will have been fully complied with.
(ee) The Company has no subsidiaries.
(ff) Except as previously disclosed in writing by the Company to the
Representatives, no officer, director or stockholder of the Company has any
affiliation or association with any member of the NASD.
(gg) The Company is not, and upon receipt of the proceeds from the sale
of the Units will not be, an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended, and the rules and regulations thereunder.
(hh) Except for materials distributed by the Representatives in
connection with the Company's bridge financing, the Company has not distributed
and will not distribute prior to the First Closing Date (as defined in Section
4(c) below) any offering material in connection with the offering and sale of
the Units other than the Preliminary Prospectus, Prospectus, the Registration
Statement or the other materials permitted by the Act, if any.
(ii) The employment agreements between the Company and its respective
officers, as disclosed in the Registration Statement, are or will be on or
before the First Closing Date (as defined in Section 4(c) below) binding and
enforceable obligations upon the respective parties thereto in accordance with
their respective terms, subject to the Enforceability Exceptions.
(jj) Except as set forth in the Prospectus, the Company has no employee
benefit plans (including, without limitation, profit sharing and welfare benefit
plans) or deferred compensation arrangements that are subject to the provisions
of the Employee Retirement Income Security Act of 1974.
(kk) There are no voting or other shareholder agreements between the
Company and any stockholders of the Company or between or among any stockholders
of the Company.
(ll) The Company has generally enjoyed a satisfactory employer-employee
relationship with its employees and is in compliance with all federal, state,
local, and foreign laws and regulations respecting employment and employment
practices, terms and conditions of employment and wages and hours. There are no
pending investigations involving the Company by the U.S. Department of Labor or
any other governmental agency responsible for the enforcement of such federal,
state, local, or foreign laws and regulations. There is no unfair labor practice
charge or complaint against the Company pending before the National Labor
Relations Board or any strike, picketing, boycott, dispute, slowdown or stoppage
pending or, to the best knowledge of the Company, threatened against or
involving the Company, and none has ever occurred. No representation question
exists respecting the employees of the Company, and no collective bargaining
agreement or modification thereof is currently being negotiated by the Company.
No grievance or arbitration proceeding is pending under any expired or existing
collective bargaining agreements to which the Company is or was a party. No
labor dispute with the employees of the Company exists, or is imminent.
(mm) The statements in the Prospectus under "Risk Factors," "Business,"
"Certain Relationships and Related Transactions," "Management" and "Description
of Capital Stock," insofar as they refer to statements of law, descriptions of
statutes, licenses, regulations or legal conclusions are correct in all material
respects.
(nn) The conditions for use of Form SB-2, as set forth in the General
Instructions thereto, have
been satisfied.
(oo) There are no business relationships or related-party transactions
of the nature described in Item 404 of Regulation S-B involving the Company and
any person described in such Item that are required to be disclosed in the
Prospectus and that have not been so disclosed.
(pp) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba within
the meaning of Section 517.075, Florida Statutes.
(qq) Any certificate signed by an officer of the Company in his
capacity as such and delivered to the Underwriters or counsel for the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDERS. Each
Selling Shareholder represents, warrants and covenants to each Underwriter as
follows:
(a) This Agreement has been duly and validly authorized by or on behalf
of such Selling Shareholder and when executed and delivered will constitute a
valid and binding agreement of such Selling Shareholder, enforceable against
such Selling Shareholder in accordance with its terms, except as such
enforceability may be limited by the Enforceability Exceptions.
(b) Each of the (i) Custody Agreement signed by such Selling
Shareholder and Winstead Sechrest & Minick P.C., as custodian (the "Custodian"),
relating to the deposit of the Option Shares to be sold by such Selling
Shareholder (the "Custody Agreement") and (ii) Power of Attorney appointing
certain individuals named therein as such Selling Shareholder's
attorneys-in-fact (each, an "Attorney-in-Fact") to the extent set forth therein
relating to the transactions contemplated hereby and by the Prospectus (the
"Power of Attorney"), of such Selling Shareholder has been duly and validly
authorized, executed and delivered by such Selling Shareholder and is a valid
and binding agreement of such Selling Shareholder, enforceable against such
Selling Shareholder in accordance with its terms, except as such enforceability
may be limited by the Enforceability Exceptions.
(c) Such Selling Shareholder has, and on the Option Closing Date (as
defined in Section 4(c) below) will have, good and valid title to all of the
Option Shares that may be sold by such Selling Shareholder pursuant to this
Agreement on such date and the legal right and power, and all authorizations and
approvals required by law to enter into this Agreement and such Selling
Shareholder's Custody Agreement and Power of Attorney, to sell, transfer and
deliver all of the Option Shares that may be sold by such Selling Shareholder
pursuant to this Agreement and to comply with its other obligations hereunder
and thereunder.
(d) Delivery of the Option Shares that are sold by such Selling
Shareholder pursuant to this Agreement will pass good and valid title to such
Option Shares, free and clear of any security interest, mortgage, pledge, lien,
encumbrance or other claim.
(e) The execution and delivery by such Selling Shareholder of, and the
performance by such Selling Shareholder of its obligations under, this
Agreement, the Custody Agreement and the Power of Attorney will not contravene
or conflict with, result in a breach of, or constitute a default under, or
require the consent of any other party to any agreement or instrument to which
such Selling Shareholder is a party or by which it is bound or under which it is
entitled to any right or benefit, any provision of applicable law or any
judgment, order, decree or regulation applicable to such Selling Shareholder of
any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over such Selling Shareholder. No consent,
approval, authorization or other order of, or registration or filing with, any
court or other governmental authority or agency, is required for the
consummation by such Selling Shareholder of the transactions contemplated in
this Agreement, except as may be required and as have been obtained under the
Act, applicable state securities or blue sky laws and from the NASD.
(f) Such Selling Shareholder does not have any registration or other
similar rights to have any equity or debt securities registered for sale by the
Company under the Registration Statement or included in the offering
contemplated by this Agreement, except for such rights as are being exercised in
the offering contemplated by this Agreement or such rights as have been duly
waived.
(g) No consent, approval or waiver is required under any instrument or
agreement to which such Selling Shareholder is a party or by which it is bound
or under which it is entitled to any right or benefit, in connection with the
offering, sale or purchase by the Underwriters of any of the Option Shares which
may be sold by such Selling Shareholder under this Agreement or the consummation
by such Selling Shareholder of any of the other transactions contemplated
hereby.
(h) All information furnished by or on behalf of such Selling
Shareholder in writing expressly for use in the Registration Statement and
Prospectus is, and on each Closing Date (as defined in Section 4(c) below) will
be, true, correct, and complete in all material respects, and does not, and on
each Closing Date (as defined in Section 4(c) below) will not, contain any
untrue statement of a material fact or omit to state any material fact necessary
to make such information not misleading. Such Selling Shareholder confirms as
accurate the number of shares of Common Stock set forth opposite such Selling
Shareholder's name in the Prospectus under the caption "Selling Stockholders"
(both prior to and after giving effect to the sale of the Option Shares).
(i) Such Selling Shareholder 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 Shares.
(j) Such Selling Shareholder has no reason to believe that the
representations and warranties of the Company contained in Section 2 hereof are
not true and correct, is familiar with the Registration Statement and the
Prospectus and has no knowledge of any material fact, condition or information
not disclosed in the Registration Statement or the Prospectus, and is not
prompted to sell shares of Common Stock by any information concerning the
Company that is not set forth in the Registration Statement and the Prospectus.
(k) Such Selling Shareholder has not at any time (i) made any
contributions to any candidate for political office in violation of law, or
failed to disclose fully any such contributions in violation of law, (ii) made
any payment to any state, federal or foreign governmental officer or official,
or any other person charged with similar public or quasi-public duties, other
than payments required or not prohibited by law or (iii) made any payment of
funds or received or retained any funds in violation of any law, rule or
regulation and under circumstances requiring the disclosure of such payment,
receipt or retention of funds in the Prospectus.
Any certificate signed by or on behalf of any Selling Shareholder and
delivered to the Underwriters or to counsel for the Underwriters shall be deemed
to be a representation and warranty by such Selling Shareholder to each
Underwriter as to the matters covered thereby.
4. PURCHASE, DELIVERY AND SALE OF THE UNITS.
(a) Subject to the terms and conditions of this Agreement, and upon the
basis of the representations, warranties, and agreements herein contained, the
Company agrees to issue and sell to the Underwriters, and each Underwriter
agrees, severally and not jointly, to buy from the Company at $7.65 per Unit
after deduction of the Underwriters' 10% selling commissions, at the place and
time hereinafter specified, the number of Firm Securities set forth opposite the
name of such Underwriter in Schedule A attached hereto plus any additional Firm
Securities which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 13 hereof. No value shall be attributable to the
Redeemable Warrants constituting a part of the Firm Securities.
(b) In addition, subject to the terms and conditions of this Agreement,
and upon the basis of the representations, warranties and agreements herein
contained, the Company, with respect to the Option Warrants and 120,000 Option
Shares, and the Selling Shareholders, with respect to 30,000 Option Shares,
hereby grant an option (the "Over-Allotment Option") to the Underwriters to
purchase all or any part of the Option Securities at $7.65 per Unit after
deduction of the Underwriters' 10% selling commissions. No value shall be
attributable to the Option Warrants constituting a part of the Option
Securities. The Over-Allotment Option may be exercised within forty-five (45)
days after the Effective Date upon notice by the Representatives to the Company
advising as to the amount of Option Securities as to which the option is being
exercised, the names and denominations in which the certificates for such Option
Securities are to be registered and the time and date when such certificates are
to be delivered. Such time and date shall be determined by the Representatives,
but shall not be earlier than two (2) nor later than ten (10) full business days
after the exercise of said option, nor in any event prior to the First Closing
Date (as defined in Section 4(c) below). The number of Option Securities to be
purchased by each Underwriter, if any, shall bear the same percentage to the
total number of Option Securities being purchased by the several Underwriters
pursuant to this Section 4(b) as the number of Firm Securities such Underwriter
is purchasing bears to the total number of the Firm Securities being purchased
pursuant to Section 4(a), as adjusted, in each case by the Representatives in
such manner as the Representatives may deem appropriate. The Over-Allotment
Option granted hereunder may be exercised only to cover over-allotments in the
sale by the Underwriters of Firm Securities referred to in Section 4(a), and the
Underwriters shall have no obligation to make any over-allotments. No Option
Securities shall be delivered and paid for unless the Firm Securities shall be
simultaneously delivered or shall theretofore have been delivered and paid for
as herein provided. In the event the Company declares or pays a dividend or
distribution on its Common Stock, whether in the form of cash, shares of Common
Stock or any other consideration, prior to the Option Closing Date (as defined
in Section 4(c) below), such dividend or distribution shall also be paid on the
Option Shares on such Option Closing Date (as defined in Section 4(c) below).
(c) The Offered Securities to be purchased by each Underwriter
hereunder, in definitive form, and in such authorized denominations and
registered in such names as the Representatives may request upon forty-eight
(48) hours prior notice to the Company, shall be delivered by or on behalf of
the Company or, in the case of the Option Shares, the Selling Shareholders and
the Company, to the Representatives through the facilities of the Depository
Trust Company ("DTC"), for the account of such Underwriter, against payment by
or on behalf of such Underwriter of the purchase price therefor by certified or
official bank check or checks drawn on or by a Dallas Clearinghouse Bank and
payable in next day funds to the order of the Company, or, with respect to the
Option Shares, to the order of the Company and the respective Selling
Shareholders, or, at the sole option of the Representatives, by wire transfer of
immediately available funds to an account or accounts designated by the Company,
or, with respect to the Option Shares, the Company and the respective Selling
Shareholders. The Company, and with respect to the Option Securities, the
Selling Shareholders and the Company, will cause the certificates for the
Offered Securities to be purchased by the Underwriters hereunder to be made
available for checking and packaging at least twenty-four (24) hours prior to
each Closing Date (as defined in Section 4(c) below) with respect thereto at the
office of DTC or its designated custodian (the "Designated Office"). The time
and date of such delivery and payment shall be, with respect to the Firm
Securities, 8:30 a.m., City of Dallas time, on December ___, 1999, or such other
time and date as the Representatives and the Company may agree upon in writing,
and, with respect to the Option Securities, 8:30 a.m., City of Dallas time, on
the date specified by the Representatives in the Underwriters' election to
purchase such Option Securities, or such other time and date as the
Representatives, the Company and the Selling Shareholders may agree upon in
writing. Such time and date for delivery of the Firm Securities is herein called
the "First Closing Date," such time and date for delivery for the Option
Securities, if not the First Closing Date, is herein called the "Option Closing
Date," and each such time and date for delivery is herein called a "Closing
Date." The documents to be delivered on each Closing Date by or on behalf of the
parties hereto pursuant to the terms and provisions of this Agreement, including
the cross receipt for the Offered Securities and any additional documents
requested by the Representatives pursuant to the terms and provisions hereof,
will be delivered at the offices of Winstead Sechrest & Minick P.C., 5400
Renaissance Tower, 1201 Elm Street, Dallas, Texas 75270 (the "Closing
Location"), and the Offered Securities will be delivered at the Designated
Office, all on each such Closing Date. A meeting will be held at the Closing
Location at 9:00 a.m., City of Dallas time, on the New York Business Day next
preceding such Closing Date, at which meeting the final drafts of the documents
to be delivered pursuant to the preceding sentence will be available for review
by the parties hereto. For the purposes of this Section 4(c), "New York Business
Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in New York are generally authorized or
obligated by law or executive order to close. 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. It is understood that the
Representative, each individually and not as representatives of the several
Underwriters, may (but shall not be obligated to) make any and all payments
required pursuant to this Section 4 on behalf of any Underwriters whose check or
checks shall not have been received by the Representatives at the time of
delivery of the Offered Securities to be purchased by such Underwriter or
Underwriters. Any such payment by the Representatives shall not relieve any such
Underwriter or Underwriters of any of its or their obligations hereunder. It is
understood that the Underwriters propose to offer the Offered Securities to be
purchased hereunder to the public upon the terms and conditions set forth in the
Registration Statement, after the Registration Statement becomes effective.
(d) On the First Closing Date, the Company shall issue and sell to the
Underwriters the Underwriters' Warrants. The total purchase price for the
Underwriters' Warrants shall be $100.00. The Underwriters' Warrants shall be
exercisable for a period of four (4) years commencing twelve (12) months from
the Effective Date, to purchase 100,000 Units at $11.475 per Unit. The
Underwriters' Warrant Agreement, including the forms of Underwriters' Warrant
Certificates, shall be substantially in the form filed as Exhibit 1.2 to the
Registration Statement. Payment for the Underwriters' Warrants shall be made to
the Company on the First Closing Date.
5. PUBLIC OFFERING BY THE UNDERWRITER. The Representatives agree to
cause the Firm Securities to be offered to the public initially at the prices
and under the terms set forth in the Prospectus as soon, on or after the
effective date of this Agreement, as the Representatives deem advisable. The
Representatives may allow such concessions and discounts upon sales to other
dealers as set forth in the Prospectus. Each of the Underwriters represents,
severally and not jointly, to the Company that it is currently a member in good
standing of the National Association of Securities Dealers, Inc. and duly
authorized to perform its obligations under this Agreement in all jurisdictions,
states and countries where such Underwriter is required to perform such
obligations under the terms and conditions of this Agreement, and that, during
the period in which such Underwriter is participating in the Offering, the
Underwriter shall use its reasonable best efforts to remain so authorized.
6. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement to become effective as promptly as possible. If required, the Company
will file the Prospectus and any amendment or supplement thereto with the
Commission in the manner and within the time period required by Rules 434 and
424(b) under the Act. Upon notification from the Commission that the
Registration Statement has become effective, the Company will so advise the
Representatives. The Company will not at any time, whether before or after the
Effective Date, file the Prospectus or any amendment to the Registration
Statement or supplement to the Prospectus of which the Representatives shall not
previously have been advised and furnished with a copy or to which the
Representatives or counsel to the Underwriters shall have objected in writing or
which is not in compliance with the Act and the Rules and Regulations.
At any time prior to the later of (i) the completion by all of the
Underwriters of the distribution of the Units contemplated hereby (but in no
event more than nine (9) months after the Effective Date) and (ii) twenty-five
(25) days after the Effective Date, the Company will prepare and file with the
Commission, promptly upon the request of the Representatives, any amendments or
supplements to the Registration Statement or Prospectus which, in the opinion of
the Representatives, may be necessary or advisable in connection with the
distribution of the Units. As soon as the Company is advised thereof, the
Company will advise the Representatives, and confirm the advice in writing, of
(i) the receipt of any comments of the Commission, (ii) the effectiveness of any
post-effective amendment to the Registration Statement, (iii) the filing of any
supplement to the Prospectus or any amended Prospectus, (iv) any request made by
the Commission for amendment of the Registration Statement or for supplementing
of the Prospectus or for additional information with respect thereto, or (v) the
issuance by the Commission or any state or regulatory body of any stop order or
other order or threat thereof suspending the effectiveness of the Registration
Statement or any order preventing or suspending the use of any Preliminary
Prospectus, or of the suspension of the qualification of any of the Offered
Securities for offering in any jurisdiction, or of the institution of any
proceedings for any of such purposes, and will use its best efforts to prevent
the issuance of any such order, and, if issued, to obtain as soon as possible
the lifting thereof.
The Company has caused to be delivered to the Representatives copies of
each Preliminary Prospectus, and the Company has consented and hereby consents
to the use of such copies for the purposes permitted by the Act. The Company
authorizes the Underwriters and dealers to use the Prospectus in connection with
the sale of the Units for such period as in the opinion of counsel to the
Underwriters the use thereof is required to comply with the applicable
provisions of the Act and the Rules and Regulations. In case of the happening,
at any time within such period as a Prospectus is required under the Act to be
delivered in connection with sales by an underwriter or dealer, of any event of
which the Company has knowledge and which materially affects the Company or the
securities of the Company, or which in the opinion of counsel for the Company or
counsel for the Underwriters should be set forth in an amendment of the
Registration Statement or a supplement to the Prospectus in order to make the
statements therein not then misleading, in light of the circumstances existing
at the time the Prospectus is required to be delivered to a purchaser of the
Units, or in case it shall be necessary to amend or supplement the Prospectus to
comply with law or with the Rules and Regulations, the Company will notify the
Representatives promptly and forthwith prepare and furnish to the
Representatives copies of such amended Prospectus or of such supplement to be
attached to the Prospectus, in such quantities as the Representatives may
reasonably request, in order that the Prospectus, as so amended or supplemented,
will not contain any untrue statement of a material fact or omit to state any
material facts necessary in order to make the statements in the Prospectus, in
the light of the circumstances under which they are made, not misleading. The
preparation and furnishing of any such amendment or supplement to the
Registration Statement or amended Prospectus or supplement to be attached to the
Prospectus shall be without expense to the Underwriters, except that in case any
Underwriter is required, in connection with the sale of the Units to deliver a
Prospectus nine (9) months or more after the Effective Date, the Company will
upon request of and at the expense of the applicable Underwriter, amend or
supplement the Registration Statement and Prospectus and furnish the applicable
Underwriter with reasonable quantities of prospectuses complying with Section
10(a)(3) of the Act.
The Company will comply with the Act, the Rules and Regulations and the
Exchange Act and the rules and regulations thereunder in connection with the
offering and issuance of the Offered Securities.
Within the time during which the Prospectus is required to be delivered
under the Act, or pursuant to the undertakings of the Company in the
Registration Statement, the Company will comply, at its own expense, with all
requirements imposed upon it by the Act, the Rules and Regulations, the Exchange
Act and the rules and regulations of the Commission promulgated under the
Exchange Act, each as now or hereafter amended or supplemented, and by any order
of the Commission so far as necessary to permit the continuance of sales of, or
dealings in, the Registered Securities.
(b) The Company will use its best efforts to qualify to register the
Offered Securities for sale under the securities or "blue sky" laws of such
jurisdictions as the Representative may designate and will make such
applications and furnish such information as may be required for that purpose
and to comply with such laws, provided the Company shall not be required to
qualify as a foreign corporation or a dealer in securities or to execute a
general consent of service of process in any jurisdiction in any action other
than one arising out of the offering or sale of the Offered Securities. The
Company will, from time to time, prepare and file such statements and reports as
are or may be required to continue such qualification in effect for so long a
period as the Representatives may reasonably request.
(c) Prior to the completion of the offering contemplated hereby, the
Company will make all filings required to (i) cause a registration statement
under the Exchange Act to be declared effective concurrently with the completion
of the offering contemplated hereby and will notify the Representatives in
writing immediately upon the effectiveness of such registration statement, (ii)
obtain a listing of the Units, Common Stock and Redeemable Warrants on The
Nasdaq SmallCap Market and will use its best efforts to maintain such listing
for at least five (5) years from the date of this Agreement, and (iii) if
requested by the Representatives, to obtain and keep current a listing in a
securities manual published by Standard & Poors or Moody's, which manual shall
be reasonably satisfactory to the Representatives.
(d) For so long as the Company is a reporting company under either
Section 12(g) or 15(d) of the Exchange Act, the Company, at its expense, will
furnish to its stockholders an annual report (including financial statements
audited by independent public accountants), in reasonable detail and at its
expense, and will furnish to the Representatives during the period ending five
(5) years from the date hereof, (i) copies of each annual report of the Company;
(ii) a copy of any Schedule 13D, 13G, 14D-1, 13E-3 or 13E-4 received or filed by
the Company from time to time; (iii) a copy of any annual, quarterly or current
report filed by the Company pursuant to the Exchange Act; (iv) copies of all
statements, documents or other information which the Company shall mail or
otherwise make available to any class of its security holders, or shall file
with the Commission or with any exchange upon which the securities issued by the
Company shall then be listed or registered; and (v) such other publicly
available information as the Representatives may from time to time request.
(e) The Company will deliver to the Representatives at or before the
First Closing Date two (2) manually signed copies of the Registration Statement
including all financial statements and exhibits filed therewith, and of all
amendments thereto, and will deliver to the Underwriters such number of
conformed copies of the Registration Statement, including such financial
statements but without exhibits, and of all amendments thereto, as the
Underwriters may reasonably request. The copies of the Registration Statement
and each amendment thereto furnished to the Underwriters will be identical to
the electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T. The signed copies of
the Registration Statement so furnished to the Representatives will include
signed copies of any and all consents and reports of the independent public
auditors as to the financial statements included in the Registration Statement
and Prospectus, and signed copies of any and all consents and certificates of
any other person whose profession gives authority to statements made by them and
who are named in the Registration Statement or Prospectus as having prepared,
certified or reviewed any parts thereof.
The Company will deliver to or upon the order of the Underwriters, from
time to time until the Effective Date, as many copies of any Preliminary
Prospectus filed with the Commission prior to the Effective Date as the
Underwriters may reasonably request. The Company will deliver to the
Underwriters on the Effective Date and thereafter for so long as a Prospectus is
required to be delivered under the Act, from time to time, as many copies of the
Prospectus, in final form, or as thereafter amended or supplemented, as the
Underwriters may from time to time reasonably request. The Company, not later
than (i) 5:00 p.m., New York City time, on the date of determination of the
public offering price, if such determination occurred at or prior to 12:00 noon,
New York City time, on such date or (ii) 6:00 p.m., New York City time, on the
business day following the date of determination of the public offering price,
if such determination occurred after 12:00 noon, New York City time, on such
date, will deliver to the Underwriters, without charge, as many copies of the
Prospectus and any amendment or supplement thereto as the Underwriters may
reasonably request for purposes of confirming orders that are expected to settle
on the First Closing Date. The Prospectus and each Preliminary Prospectus and
any amendments or supplements thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(f) The Company will make generally available to its security holders
and to the registered holders of its Redeemable Warrants and deliver to the
Representatives as soon as it is practicable to do so but in no event later than
ninety (90) days after the end of twelve (12) months after its current fiscal
quarter, an earnings statement (which need not be audited) covering a period of
at least twelve (12) consecutive months beginning after the Effective Date,
which shall satisfy the requirements of Section 11(a) of the Act.
(g) The Company will apply the net proceeds from the sale of the Units
for the purposes set forth under "Use of Proceeds" in the Prospectus, and will
file such reports with the Commission with respect to the sale of the Units and
the application of the proceeds therefrom as may be required pursuant to Rule
463 under the Act.
(h) The Company on the First Closing Date will sell to the Underwriter
the Underwriters' Warrants according to the terms specified in Section 4(d)
hereof. The Company has reserved and shall continue to reserve a sufficient
number of shares of Common Stock for issuance upon exercise of the Underwriters'
Warrants, the Redeemable Warrants and the Underwriters' Redeemable Warrants.
(i) During the period from the First Closing Date until such time as
all of the Redeemable Warrants have been redeemed by the Company or earlier
exercised by the holders thereof, each in accordance with the terms of the
Public Warrant Agreement, the Company agrees that the Representatives shall have
the right to designate for nomination, and the Company shall use its best
efforts to cause the election of, one member of the Company's Board of Directors
(the "Board"), who shall be reasonably acceptable to the Company; alternatively,
the Representatives may designate an observer, who shall be entitled to attend
all meetings of the Board and to receive all copies of all notices and other
documents distributed to the members of the Board (including, but not limited
to, any unanimous consents prepared and advance notices of all proposed Board
actions or consents), as if such observer were a member of the Board. Such
designee shall be entitled to receive from the Company the same cash
compensation, grants of stock options and reimbursement of expenses as the
Company affords to the directors who are not also officers or employees of the
Company, and the Company shall, in any event, reimburse such designee for all
reasonable costs incurred by such person in attending Board meetings, including
but not limited to food, lodging and transportation. To the extent permitted by
law, the Company agrees to indemnify and hold the designee and the
Representatives harmless against any and all claims, actions, awards and
judgments arising out of such designee's service. The Company shall immediately
after the First Closing Date use its best efforts to obtain directors' and
officers' liability insurance in amounts reasonable and customary for similarly
situated companies, at a premium that the Company can reasonably afford. In the
event the Company maintains a liability insurance policy affording coverage for
the acts of its officers and directors, it will, if possible, include the
designee (as a director) as an insured under such policy. The rights and
benefits of such indemnification and the benefits of such insurance shall, to
the extent possible, extend to the Representatives insofar as it may be, or be
alleged to be, responsible for such designee. The Company will deliver, on or
before the date hereof, the agreements of each of its officers, directors and
holders of 5% or more of its Common Stock to vote, during the period set forth
in the first sentence of this Section 6(i), for the election of the
Representatives' designee for director, if any.
(j) The Company will maintain insurance in full force and effect of the
types and in the amounts adequate for its business and in line with insurance
maintained by similar companies and businesses, including but not limited to,
personal injury and product liability insurance and insurance covering all
personal property owned or leased by the Company against theft, damage,
destruction, acts of vandalism and all other risks customarily insured against.
(k) During the course of the distribution of the Offered Securities,
the Company will not take, directly or indirectly, any action designed to or
which might, in the future, reasonably be expected to cause or result in
stabilization or manipulation of the prices of the Units, Common Stock and/or
Redeemable Warrants. During the so-called "quiet period" in which delivery of a
prospectus is required, if applicable, the Company will not issue press releases
or engage in any other publicity regarding the Company, its business or any
terms of the offering contemplated hereby, without the prior written consent of
the Representatives. During such period, copies of all documents which the
Company or its agents intent to distribute will be provided to the
Representatives for review prior to such distribution.
(l) The Company will promptly upon the Representatives' request,
prepare and file with the Commission any amendments or supplements to the
Registration Statement, Preliminary Prospectus or Prospectus and take any other
action, which in the reasonable opinion of counsel to the Underwriters, may be
reasonably necessary or advisable in connection with the distribution of the
Offered Securities, and will use its best efforts to cause the same to become
effective as promptly as possible.
(m) On each Closing Date, all transfer or other taxes (other than
income taxes) which are required to be paid in connection with the sale and
transfer of the Registered Securities will have been fully paid by the Company
and all laws imposing such taxes will have been fully complied with by the
Company.
(n) Without the prior written consent of the Representatives, the
Company will not, (i) during the two (2) year period commencing on the date of
this Agreement, grant any options (other than employee stock options) to
purchase shares of Common Stock at an exercise price less than the greater of
(A) the initial public offering price of the Units (without allocating any value
to the Redeemable Warrants), or (B) the fair market value of the Common Stock on
the date of grant, or (ii) issue any additional securities which have per share
voting rights greater than the voting rights of the Shares (or take any
corporate action which would have this effect).
(o) Subsequent to the dates as of which information is given in the
Registration Statement and Prospectus and prior to each Closing Date, except as
disclosed in or contemplated by the Registration Statement and Prospectus, (i)
the Company will not have incurred any liabilities or obligations, direct or
contingent, or entered into any material transactions other than in the ordinary
course of business; (ii) there shall not have been any change in the capital
stock, funded debt (other than regular repayments of principal and interest on
existing indebtedness) or other securities of the Company, any adverse change in
the condition (financial or otherwise), business, operations, income, net worth
or properties, including any loss or damage to the properties of the Company
(whether or not such loss is insured against), which would or could be
reasonably expected to result in a Material Adverse Effect; and (iii) the
Company shall not have paid or declared any dividend or other distribution on
its Common Stock or its other securities or redeemed or repurchased any of its
Common Stock or other securities. The Company shall furnish to the Underwriter
as early as practicable prior to each of the date hereof, the First Closing Date
and each Option Closing Date, if any, but no later than two (2) full business
days prior thereto, a copy of the latest available unaudited interim financial
statements of the Company (which in no event shall be as of a date more than
sixty (60) days prior to the date of the Registration Statement) which have been
reviewed by the Company's independent public accountants, as stated in their
letters to be furnished pursuant to Section 8(g) hereof
(p) On each Closing Date, James D. Rupp shall be President and Chief
Executive Officer of the Company, Gayle Essary shall be Vice President of the
Company and Nicholas Malino shall be Chief Financial Officer of the Company. The
Company will obtain key person life insurance on the lives of Messrs. Rupp,
Essary and Malino in an amount of not less than One Million Dollars ($1,000,000)
for each of them and will use its best efforts to maintain such insurance during
the five (5) year period commencing with the First Closing Date unless his
employment with the Company is earlier terminated. In such event, the Company
will obtain a comparable policy on the life of his successor for the balance of
the five (5) year period. For a period of twelve (12) months from the First
Closing Date, the compensation of the executive officers of the Company shall
not be increased from the compensation levels disclosed in the Prospectus.
(q) So long as any Redeemable Warrants are outstanding, the Company
shall use its best efforts to cause post-effective amendments to the
Registration Statement to become effective in compliance with the Act and
without any lapse of time between the effectiveness of any such post-effective
amendments and cause a copy of each Prospectus, as then amended, to be delivered
to each holder of record of a Redeemable Warrant and to furnish to each
Underwriter and dealer as many copies of each such Prospectus as such
Underwriter or dealer may reasonably request. The Company shall not call for
redemption any of the Redeemable Warrants unless a registration statement
covering the securities underlying the Redeemable Warrants has been declared
effective by the Commission and remains current at least until the date fixed
for redemption. In addition, for so long as any Redeemable Warrant is
outstanding, the Company will promptly notify the Representative of any material
change in the business, financial condition or prospects of the Company.
(r) Upon the exercise of any Redeemable Warrants after twelve months
from the Effective Date, the Company will pay the Representative, individually
and not as representative of the Underwriters, a fee of 5% of the aggregate
exercise price of the Redeemable Warrants, of which a portion may be reallowed
to the dealer who solicited the exercise (which may also be the Representative)
if (i) the market price of the Common Stock is greater than or equal to the
exercise price of the Redeemable Warrants on the date of exercise; (ii) the
exercise of the Redeemable Warrants was solicited by a member of the NASD, (iii)
the holder of the Redeemable Warrants so exercised designates in writing that
the exercise of the Redeemable Warrant was solicited by a member of the NASD and
designates in writing the Representatives or other broker-dealer to receive
compensation for such exercise; (iv) the Redeemable Warrants are not held in a
discretionary account (except where prior specific approval for exercise is
received from the customer exercising the Redeemable Warrants); (v) the
disclosure of compensation arrangements has been made in documents provided to
customers, both as part of the original offering and at the time of exercise,
and (vi) the solicitation of exercise of the Redeemable Warrants was not in
violation of Regulation M promulgated under the Exchange Act. The Company agrees
not to solicit the exercise of any Redeemable Warrants other than through the
Representative and will not authorize any other dealer to engage in such
solicitation without the prior written consent of the Representatives.
(s) For a period of five (5) years from the Effective Date, the
Company, at its expense, shall cause its regularly engaged independent certified
public accountants to review (but not audit) the Company's financial statements
for each of the first three (3) fiscal quarters prior to the announcement of
quarterly financial information, the filing of the Company's 10-Q quarterly
report and the mailing of quarterly financial information to stockholders.
(t) The Company maintains and will continue to maintain a system of
internal accounting controls sufficient to provide reasonable assurances that:
(i) transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary in order to
permit preparation of financial statements in accordance with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(u) The Company agrees that for so long as the Common Stock is
registered under the Exchange Act, the Company will hold an annual meeting of
shareholders for the election of directors within 180 days after the end of each
of the Company's fiscal years and, within 150 days after the end of each of the
Company's fiscal years, will provide the Company's shareholders with the audited
financial statements of the Company as of the end of the fiscal year just
completed prior thereto. Such financial statements shall be those required by
applicable rules under the Exchange Act and shall be included in an annual
report pursuant to the requirements thereof.
(v) The Company shall cause each director and officer of the Company
and certain other stockholders listed on Schedule C attached hereto, to enter
into an agreement with the Underwriters pursuant to which he, she or it will
agree not to sell or otherwise transfer any securities of the Company for a
period of one (1) year following the Effective Date without the prior consent of
the Representatives.
(w) As promptly as practicable after the First Closing Date, the
Company will prepare, at its own expense, hard cover "bound volumes" relating to
the offering, and will distribute at least five (5) of such volumes to the
individuals designated by the Representative or counsel to the Underwriters.
(x) The Company shall, for a period of six (6) years after date of this
Agreement, submit such reports to the Secretary of the Treasury and to its
stockholders, as the Secretary of the Treasury may require, pursuant to Section
1202 of the Internal Revenue Code, as amended, or regulations promulgated
thereunder, in order for the Company to qualify as a "small business" so that
stockholders may realize special tax treatment with respect to their investment
in the Company.
7. COVENANTS OF THE SELLING SHAREHOLDERS. Each Selling Shareholder
further covenants and agrees with each Underwriter:
(a) Such Selling Shareholder will not, without the prior written
consent of the Representatives (which consent may be withheld in their sole
discretion), directly or indirectly, sell, offer, contract or grant any option
to sell (including without limitation any short sale), pledge, transfer,
establish an open "put equivalent position" within the meaning of Rule 16a-1(h)
under the Exchange Act, or otherwise dispose of any shares of Common Stock,
options or warrants to acquire shares of Common Stock, or securities
exchangeable or exercisable for or convertible into shares of Common Stock
currently or hereafter owned either of record or beneficially (as defined in
Rule 13d-3 under the Exchange Act) by such Selling Shareholder, or publicly
announce such Selling Shareholder's intention to do any of the foregoing, for a
period commencing on the date hereof and continuing through the close of trading
on the date ninety (90) days after the date of the Prospectus.
(b) Such Selling Shareholder will deliver to the Representatives prior
to the First Closing Date a properly completed and executed United States
Treasury Department Form W-8 (if the Selling Shareholder is a non-United States
person) or Form W-9 (if the Selling Shareholder is a United States Person).
8. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase and pay for the Units which it has agreed to
purchase hereunder are subject to the accuracy (as of the date hereof, and as of
each Closing Date) of and compliance with the representations and warranties of
the Company and the Selling Shareholders herein, to the performance by the
Company and the Selling Shareholders of their obligations hereunder, and to the
following conditions:
(a) (i) The Registration Statement, including any 462(b) Registration
Statement, shall have become effective and the Representatives shall
have received notice thereof not later than 10:00 A.M., Dallas time, on
the date on which the amendment to the registration statement
originally filed with respect to the Offered Securities or to the
Registration Statement, as the case may be, containing information
regarding the initial public offering price of the Units has been filed
with the Commission, or such later time and date as shall have been
agreed to by the Representatives;
(ii) If required, the Prospectus and any amendment or
supplement thereto shall have been filed with the Commission in the
manner and within the time period required by Rule 434 and 424(b) under
the Act;
(iii) On or prior to each Closing Date no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that or a similar purpose shall have
been instituted or shall be pending or, to the best knowledge of the
Representatives and the Company, shall be contemplated by the
Commission;
(iv) Qualification under the securities laws of such states as
the Representatives may designate of the issue and sale of the Offered
Securities upon the terms and conditions herein set forth or
contemplated and containing no provision unacceptable to the
Representatives shall have been secured;
(v) No stop order shall be in effect denying or suspending
effectiveness of such qualifications, nor shall any stop order
proceedings with respect thereto be instituted or pending or, to the
best knowledge of the Company and the Representatives, threatened under
such laws;
(vi) If the Company has elected to rely upon Rule 430A of the
Rules and Regulations, the price of the Units and any price-related
information previously omitted from the effective Registration
Statement pursuant to such Rule 430A shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) of the Rules and
Regulations within the prescribed time period, and prior to the First
Closing Date the Company shall have provided evidence satisfactory to
the Representatives of such timely filing, or a post-effective
amendment providing such information shall have been promptly filed and
declared effective in accordance with the requirements of Rule 430A of
the Rules and Regulations; and
(vii) Any request on the part of the Commission for additional
information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters.
(b) No amendments to the Registration Statement, any Preliminary
Prospectus or the Prospectus to which the Representatives or counsel for the
Underwriters shall have objected, after having received reasonable notice of a
proposal to file the same, shall have been filed.
(c) The Representatives shall not have discovered and disclosed to the
Company prior to the respective Closing Dates that the Registration Statement or
the Prospectus, or any amendment or supplement thereto, contains an untrue
statement of fact which, in the reasonable opinion of counsel for the
Underwriters, is material, or omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein or is necessary
to make the statements therein not misleading.
(d) At the First Closing Date, the Representatives shall have received
the opinion, together with copies of such opinion for each of the other
Underwriters, dated as of the First Closing Date, of Kogan & Taubman L.L.C.,
counsel for the Company, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with full corporate power and authority to own its properties and
conduct its business as described in the Registration Statement and Prospectus
and is duly qualified to do business as a foreign corporation and is in good
standing in all other jurisdictions in which the nature of its business or the
character or location of its properties requires such qualification, except
where the failure to so qualify will not have a Material Adverse Effect;
(ii) the authorized, issued and outstanding capital stock of
the Company as of March 31, 1999 is as set forth in the Prospectus under
"Capitalization"; all shares of issued and outstanding capital stock of the
Company set forth thereunder have been duly authorized, validly issued, and are
fully paid and non-assessable and conform to the description thereof contained
in the Prospectus; to the best of such counsel's knowledge, the outstanding
shares of capital stock of the Company have not been issued in violation of the
preemptive rights of any securityholder of the Company, and the securityholders
of the Company do not have any statutory preemptive rights to subscribe for or
to purchase, nor are there any restrictions upon the voting or transfer of, any
of the capital stock of the Company; the Registered Securities, the Public
Warrant Agreement and the Underwriters' Warrant Agreement conform as to legal
matters in all material respects to the respective descriptions thereof
contained in the Prospectus; the Shares have been, and the Public Warrant Shares
and Underwriters' Warrant Shares upon issuance in accordance with the terms of
the Redeemable Warrants and the Public Warrant Agreement and the Underwriters'
Warrants and the Underwriters' Warrant Agreement, respectively, have been duly
authorized and, when issued and delivered, will be duly and validly issued,
fully paid, non-assessable, free of preemptive rights and no personal liability
will attach to the ownership thereof; a sufficient number of shares of Common
Stock has been reserved for issuance upon exercise of the Redeemable Warrants,
Underwriters' Warrants and Underwriters' Redeemable Warrants, and to the best of
such counsel's knowledge, neither the filing of the Registration Statement nor
the offering or sale of the Registered Securities as contemplated by this
Agreement gives rise to, any registration rights or other rights, other than
those which have been waived or satisfied, for or relating to the registration
of any shares of Common Stock;
(iii) this Agreement, the Public Warrant Agreement and the
Underwriters' Warrant Agreement have been duly and validly authorized, executed
and delivered by the Company and, assuming due execution by each other party
hereto or thereto, each constitutes a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its respective terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
relating to or affecting enforcement of creditors' rights and the application of
equitable principles in any action, legal or equitable, and except as rights to
indemnity or contribution may be limited by applicable law;
(iv) the certificates evidencing the shares of Common Stock
are in valid and proper legal form; the Redeemable Warrants, the Underwriters'
Warrants and the Underwriters' Redeemable Warrants will be exercisable for
shares of Common Stock in accordance with their terms and at the prices therein
provided for;
(v) delivery of certificates for the Shares and Redeemable
Warrants underlying the Units, upon payment therefor by the Underwriters as
provided in this Agreement, will transfer valid title to such securities to the
Underwriters; and, upon payment for such securities, the Underwriters will
acquire such securities free and clear of any liens;
(vi) such counsel knows of no pending or threatened legal or
governmental proceedings to which the Company is a party which could have a
material adverse effect on the business, property, financial condition or
operations of the Company; or which question the validity of the Registered
Securities, this Agreement, the Public Warrant Agreement or the Underwriters'
Warrant Agreement, or of any action taken or to be taken by the Company pursuant
to such agreements; and no such proceedings are known to such counsel to be
contemplated against the Company;
(vii) to the best of such counsel's knowledge there are no
governmental proceedings or regulations required to be described or referred to
in the Registration Statement which are not so described or referred to;
(viii) the execution and delivery of this Agreement, the
Public Warrant Agreement and the Underwriters' Warrant Agreement, and the
incurrence of the obligations herein and therein set forth and the consummation
of the transactions herein or therein contemplated, will not result in a breach
or violation of, or constitute a default under, the Certificate of Incorporation
or Bylaws, any bond, debenture, note or other evidence of indebtedness or in any
contract, indenture, mortgage, loan agreement, lease, joint venture or other
agreement or instrument which is filed as an exhibit to the Registration
Statement, or of any material order, writ, injunction, or decree of any
government, governmental instrumentality or court, domestic or foreign
applicable to the Company;
(ix) 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 is in effect, and no proceedings for
that purpose have been instituted or are pending before, or threatened by, the
Commission; the Registration Statement and the Prospectus (except for the
financial statements and other financial data contained therein, or omitted
therefrom, as to which such counsel need express no opinion) comply as to form
in all material respects with the applicable requirements of the Act and the
Rules and Regulations;
(x) such counsel has participated in the preparation of the
Registration Statement and the Prospectus and, although such counsel did not
independently verify and is not passing upon and does not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus, based upon such
participation, nothing has come to the attention of such counsel to cause such
counsel to have reason to believe that the Registration Statement or any
amendment thereto at the time it became effective contained any untrue statement
of a material fact required to be stated therein or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any supplement thereto contains
any untrue statement of a material fact or omits to state a material fact
necessary in order to make statements therein, in light of the circumstances
under which they were made, not misleading (except, in the case of both the
Registration Statement and any amendment thereto and the Prospectus and any
supplement thereto, for the financial statements, notes thereto and other
financial information and schedules contained therein as to which such counsel
need express no opinion);
(xi) all descriptions in the Registration Statement and the
Prospectus, and any amendment or supplement thereto, of contracts and other
documents are accurate and fairly summarize in all material respects the
information required to be disclosed, and such counsel is familiar with all
contracts and other documents referred to in the Registration Statement and the
Prospectus and any such amendment or supplement or filed as exhibits to the
Registration Statement, and such counsel does not know of any contracts or
documents of a character required to be summarized or described therein or to be
filed as exhibits thereto which are not so summarized, described or filed;
(xii) no authorization, approval, consent, or license of any
governmental or regulatory authority or agency is necessary in connection with
the authorization, issuance, transfer, sale or delivery of the Registered
Securities by the Company, in connection with the execution, delivery and
performance of this Agreement by the Company or in connection with the taking of
any action contemplated herein, other than registrations or qualifications of
the Registered Securities under applicable state or foreign securities or blue
sky laws and registration under the Act, all of which have been obtained;
(xiii) the statements in the Registration Statement under the
captions "Business,' "Management," "Shares Eligible for Future Sale," "Certain
Relationships and Related Transactions," "Description of Capital Stock" and in
Part II, Item 26, have been reviewed by such counsel and, insofar as they refer
to descriptions of agreements, statements of law, descriptions of statutes,
licenses, rules or regulations or legal conclusions, are correct in all material
respects;
(xiv) the offers and sales of the Common Stock and other
securities referred to under the caption "Prior Offerings" and in Part II, Item
26, of the Registration Statement were exempt from the registration requirements
of the Securities Act and were exempt from the registration or qualification
requirements of the securities laws of each state in which such offers and sales
were made, and such offers and sales do not have to be integrated with the offer
and sale of the Registered Securities pursuant to the Registration Statement;
and
(xv) based solely upon advice of representatives of Nasdaq,
the Units, the Common Stock and the Redeemable Warrants have been duly
authorized for quotation on The Nasdaq SmallCap Market.
Such counsel need express no opinion with respect to the financial
statements and other financial data included in or omitted from the Registration
Statement or Prospectus. Such opinion shall also cover such matters incident to
the transactions contemplated hereby as the Representatives or counsel for the
Underwriters shall reasonably request. In rendering such opinion, such counsel
may rely upon certificates of any officer of the Company or public officials as
to matters of fact, original copies of which shall be delivered to the
Representative on the First Closing Date and the Option Closing Date as the case
may be; and may rely as to all matters of law other than the law of the United
States or of the State of Delaware upon opinions of counsel satisfactory to you,
in which case the opinion shall state that they have no reason to believe that
you and they are not entitled to so rely.
(e) All corporate proceedings and other legal matters relating to this
Agreement, the Registration Statement, the Prospectus and other related matters
shall be satisfactory to or approved by counsel to the Underwriters.
(f) The Representatives shall have received a letter from Grant
Thornton LLP, independent public accounts for the Company, prior to the
execution and delivery of this Agreement, and dated the date of this Agreement,
in a form satisfactory to the Representatives, together with signed or
reproduced copies of such letter for each of the other Underwriters, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
(g) At the First Closing Date, the Representatives shall have received
from Grant Thornton LLP a letter, dated as of the First Closing Date, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to paragraph (f) of this Section, except that the specified date referred to
shall be a date not more than five (5) days prior to the First Closing Date.
(h) The Representatives shall have received a certificate, dated and
delivered as of the date of the First Closing Date, of the Chief Executive
Officer and Secretary of the Company stating that:
(i) The Company has complied with all the agreements and
satisfied all the conditions on their respective part to be performed or
satisfied hereunder at or prior to such date, including but not limited to the
agreements and covenants of the Company set forth in Section 6 hereof.
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that purpose have
been instituted or are pending, contemplated or threatened under the Act.
(iii) Such officers have carefully examined the Registration
Statement and the Prospectus and any supplement or amendment thereto, each
contains all statements required to be stated therein or necessary to make the
statements therein not misleading and does not contain any untrue statement of a
material fact, and since the Effective Date there has occurred no event required
to be set forth in the amended or supplemented prospectus which has not been set
forth.
(iv) As of the date of such certificate, the representations
and warranties contained in Section 2 hereof are true and correct as if such
representations and warranties were made in their entirety on the date of such
certificate, and the Company has complied with all its agreements herein
contained as of the date hereof.
(v) Subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus, and except as
contemplated in the Prospectus, the Company has not incurred any liabilities or
obligations, direct or contingent, or entered into any material transactions and
there has not been any change in the Common Stock or funded debt of the Company
or any adverse change in the condition (financial or otherwise), business,
operations, income, net worth, properties or prospects of the Company.
(vi) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, the
Company has not sustained any material loss of or damage to its properties,
whether or not insured, and since such respective dates, no dividends or
distributions whatever shall have been declared or paid, or both, on or with
respect to any security (except interest in respect of loans) of the Company.
(vii) Neither the Company nor any of its officers or
affiliates has taken any action designed to, or which might reasonably be
expected to, cause or result in the stabilization or manipulation of the price
of the Company's securities to facilitate the sale or resale of the Offered
Securities.
(viii) No action, suit or proceeding, at law or in equity, is
pending or, to the knowledge of such officers, threatened against the Company
which would materially affect the business of the Company, or materially affect
any of its properties, before or by any commission, board or other
administrative agency, except as otherwise set forth in the Registration
Statement.
(i) All of the Units shall have been tendered for delivery in
accordance with the terms and provisions of this Agreement.
(j) On the date hereof, but prior to the execution and delivery hereof,
the Company and the Selling Shareholders shall have furnished for review by the
Representatives copies of the Powers of Attorney and Custody Agreements executed
by each of the Selling Shareholders and such further information, certificates
and documents as the Representatives may reasonably request.
(k) The Underwriter shall have received each of the lock-up agreements
referred to in Section 6(v) hereof.
(l) At each Closing Date, (i) the representations and warranties of the
Company (and the Selling Shareholders at the Option Closing Date) contained in
this Agreement shall be true and correct with the same effect as if made on and
as each Closing Date and the Company shall have performed all its obligations
due to be performed prior thereto; (ii) the Registration Statement and the
Prospectus and any amendment or supplement thereto shall contain all statements
which are required to be stated therein in accordance with the Act and the Rules
and Regulations and conform in all material respects to the requirements
thereof, and neither the Registration Statement nor the Prospectus nor any
amendment or supplement thereto shall contain any 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; (iii) there shall have
been, since the date as of which information is given, no material adverse
change in the condition, business, operations, properties, business prospects,
securities, long-term or short-term debt or general affairs of the Company from
that set forth in the Registration Statement or the Prospectus, except changes
which the Registration Statement and the Prospectus indicate will occur after
the Effective Date and prior to such Closing Date, and the Company shall not
have incurred any material liabilities or obligations, direct or contingent, or
entered into any material transaction, contract or agreement not in the ordinary
course of business other than as referred to in the Registration Statement and
the Prospectus; and (iv) except as set forth in the Prospectus, no action, suit
or proceeding, at law or in equity, shall be pending or threatened against the
Company which might be required to be set forth in the Registration Statement,
and no proceedings shall be pending or threatened against the Company before or
by any commission, board or administrative agency in the United States or
elsewhere, wherein an unfavorable decision, ruling or finding might adversely
affect the condition, business, operations, properties, prospects or general
affairs of the Company.
(m) Upon exercise of the Over-Allotment Option provided for in Section
4(b) hereof, the obligations of the Underwriter to purchase and pay for the
Option Securities will be subject to the following additional conditions:
(i) The Registration Statement shall remain effective at the
Option Closing Date, and no stop order suspending the effectiveness thereof
shall have been issued and no proceedings for that purpose shall have been
instituted or shall be pending, or, to the best knowledge of the Underwriter or
the Company, shall be contemplated by the Commission, and any request on the
part of the Commission for additional information shall have been complied with
to the satisfaction of counsel for the Underwriters.
(ii) At the Option Closing Date there shall have been
delivered to the Representatives the signed opinion of Kogan & Taubman, L.L.C.,
counsel for the Company, in form and substance reasonably satisfactory to
counsel for the Underwriters, which opinion shall be substantially the same in
scope and substance as the opinions furnished to the Representatives by such
counsel at the First Closing Date pursuant to Section 8(d).
(iii) At the Option Closing Date the Representatives shall
have received the opinion, together with copies of such opinion for each of the
other Underwriters, dated as of the Option Closing Date, of Kogan & Taubman,
L.L.C., counsel for the Selling Shareholders, in form and substance satisfactory
to the counsel for the Underwriters.
(iv) At the Option Closing Date there shall have been
delivered to the Representatives a certificate of the Chief Executive Officer
and the Secretary of the Company dated the Option Closing Date, in form and
substance satisfactory to counsel for the Underwriters, substantially the same
in scope and substance as the certificates furnished to the Representatives at
the First Closing Date pursuant to Section 8(h).
(v) At the Option Closing Date there shall have been delivered
to the Representative a letter, in form and substance satisfactory to the
Representatives, from Grant Thornton LLP, dated the Option Closing Date and
addressed to the Representatives, substantially in the same form and substance
as the letter furnished to the Representative pursuant to Section 8(h) hereof,
except that the "specified date" in the letter furnished pursuant to this
paragraph shall be a date not more than five (5) days prior to the Option
Closing Date.
(vi) At the Option Closing Date there shall have been
delivered to the Representatives a certificate executed by the Attorney-in-Fact
of each Selling Shareholder, dated as of the Option Closing Date, to the effect
that:
(A) the representations, warranties and covenants of
such Selling Shareholder set forth in Section 3 of this Agreement are
true and correct with the same force and effect as though expressly
made by such Selling Shareholder on and as of the Option Closing Date;
and
(B) such Selling Shareholder has complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied under this Agreement at or prior to the Option
Closing Date.
(vii) All proceedings taken at or prior to the Option Closing
Date in connection with the sale and transfer of the Option Securities shall be
satisfactory in form and substance to the Representatives, and the
Representatives and counsel for the Underwriters shall have been furnished with
all such documents, certificates, affidavits and opinions as the Representative
and counsel for the Underwriters may reasonably request in connection with this
transaction in order to evidence the accuracy and completeness of any of the
representations, warranties or statements of the Company or the Selling
Shareholders or compliance by the Company or the Selling Shareholders with any
of the covenants or conditions contained herein.
(n) The Company shall have executed and delivered the Public Warrant
Agreement and the Underwriters' Warrant Agreement, and shall have issued the
Underwriters' Warrants.
(o) The Company and the Selling Shareholders shall have furnished to
the Representative such other certificates, documents, and opinions as the
Representatives may have reasonably requested (including certificates from
officers of the Company and from the Selling Shareholders) as to the accuracy,
at each Closing Date, of the representations and warranties of the Company and
the Selling Shareholders herein, as to the performance by the Company and the
Selling Shareholders of their respective obligations hereunder and as to other
conditions concurrent and precedent to the obligations of the Underwriters
hereunder.
The opinions and certificates mentioned above or elsewhere in this
Agreement will be deemed to be in compliance with the provisions hereof only if
they are reasonably satisfactory to the Representatives and to counsel for the
Underwriters.
Any certificate signed by an officer of the Company delivered to the
Representatives or to counsel for the Underwriters, will be deemed a
representation and warranty by the Company to the Representatives as to the
statements made therein.
(p) No action shall have been taken by the Commission or the NASD the
effect of which would make it improper, at any time prior to each Closing Date,
for members of the NASD to execute transactions (as principal or agent) in the
Registered Securities and no proceedings for the taking of such action shall
have been instituted or shall be pending, or, to the knowledge of the
Underwriters or the Company, shall be contemplated by the Commission or the
NASD. The Company represents that at the date hereof it has no knowledge that
any such action is in fact contemplated by the Commission or the NASD. The
Company shall have advised the Representatives of any NASD affiliation of any of
its officers, directors, stockholders or their affiliates.
(q) If any of the conditions herein provided for in this Section 8
shall not have been fulfilled as of the date indicated, this Agreement and all
obligations of the Underwriters under this Agreement may be canceled at, or at
any time prior to, each Closing Date by the Representatives. Any such
cancellation shall be without liability of the Underwriters to the Company.
9. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. The obligation of the
Company to sell and deliver the Firm Securities, Option Securities and
Underwriters' Warrants, is subject to the condition that at each Closing Date,
no stop orders suspending the effectiveness of the Registration Statement shall
have been issued under the Act or any proceedings therefor initiated or
threatened by the Commission. If the condition to the obligations of the Company
provided for in this Section 9 have been fulfilled on the First Closing Date but
are not fulfilled after the First Closing Date and prior to the Option Closing
Date, then only the obligation of the Company to sell and deliver the Option
Securities on exercise of the Over-Allotment Option shall be affected.
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 or liabilities, joint or several (which
shall, for all purposes of this Agreement, include, but not be limited to, all
reasonable costs of defense and investigation and all attorneys' fees), to which
such Underwriter or such controlling person may become subject, under the Act or
otherwise, and will reimburse, as incurred, such Underwriter and such
controlling persons for any legal or other expenses reasonably incurred in
connection with investigating, defending against or appearing as a third party
witness in connection with any losses, claims, damages or liabilities, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in (A) the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto,
(B) any blue sky application or other document executed by the Company
specifically for that purpose or based upon written information furnished by the
Company filed in any state or other jurisdiction in order to qualify any or all
of the Units under the securities laws thereof (any such application, document
or information being hereinafter called a "Blue Sky Application"), or arise out
of or are based upon the omission or alleged omission to state in the
Registration Statement, any Preliminary Prospectus, Prospectus, or any amendment
or supplement thereto, or in any Blue Sky Application, a material fact required
to be stated therein or necessary to make the statements therein not misleading;
provided, however, that the Company will not be liable in any such case to the
extent, but only to the extent, that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of the Underwriters
specifically for use in the preparation of the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto,
or any such Blue Sky Application. This indemnity will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter, severally, but not jointly, will indemnify and
hold harmless the Company, each of its directors, each nominee (if any) for
director named in the Prospectus, each of its officers who have signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of the Act, against any losses, claims, damages or liabilities
(which shall, for all purposes of this Agreement, include, but not be limited
to, all costs of defense and investigation and all attorneys' fees) to which the
Company or any such director, nominee, officer or controlling person may become
subject under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) 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 the 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 (i) in reliance upon and in conformity with written
information furnished to the Company by any Underwriter specifically for use in
the preparation thereof and (ii) relates to the transactions effected by the
Underwriters in connection with the offer and sale of the Offered Securities
contemplated hereby. This indemnity agreement will be in addition to any
liability which the Underwriters may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
10 of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 10, notify in writing the indemnifying party 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 otherwise than
under this Section 10. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate in, and, to the
extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, subject to the provisions herein
stated, 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, the indemnifying party will not be
liable to such indemnified party under this Section 10 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. The indemnified
party shall have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall not be at the expense of the indemnifying party if the indemnifying party
has assumed the defense of the action with counsel reasonably satisfactory to
the indemnified party; provided that if the indemnified party is an Underwriter
or a person who controls an Underwriter within the meaning of the Act, the fees
and expenses of such counsel shall be at the expense of the indemnifying party
if (i) the employment of such counsel has been specifically authorized in
writing by the indemnifying party or (ii) the named parties to any such action
(including any impleaded parties) include both the Underwriter or such
controlling person and the indemnifying party and in the judgment of the
applicable Underwriter, it is advisable for the applicable Underwriter or
controlling persons to be represented by separate counsel (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the applicable Underwriter or such controlling person, it being
understood, however, that the indemnifying party shall not, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys for the applicable Underwriter and controlling
persons, which firm shall be designated in writing by the applicable
Underwriter). No settlement of any action against an indemnified party shall be
made without the consent of the indemnifying party, which shall not be
unreasonably withheld in light of all factors of importance to such indemnifying
party.
11. CONTRIBUTION. In order to provide for just and equitable
contribution under the Act in any case in which (i) an Underwriter makes claim
for indemnification pursuant to Section 10 hereof but it is judicially
determined (by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right of appeal) that such indemnification may not be enforced in such case,
notwithstanding the fact that the express provisions of Section 10 provide for
indemnification in such case, or (ii) contribution under the Act may be required
on the part of any Underwriter, then the Company and each person who controls
the Company, in the aggregate, and any such Underwriter shall contribute to the
aggregate losses, claims, damages or liabilities to which they may be subject
(which shall, for all purposes of this Agreement, include, but not be limited
to, all reasonable costs of defense and investigation and all reasonable
attorneys' fees) in either such case (after contribution from others) in such
proportions that all such Underwriters are only responsible for that portion of
such losses, claims, damages or liabilities represented by the percentage that
the underwriting discount per Unit appearing on the cover page of the Prospectus
bears to the public offering price appearing thereon, and the Company shall be
responsible for the remaining portion, provided, however, that (a) if such
allocation is not permitted by applicable law then the relative fault of the
Company and the applicable Underwriter and controlling persons, in the
aggregate, in connection with the statements or omissions which resulted in such
damages and other relevant equitable considerations shall also be considered.
The relative fault shall be determined by reference to, among other things,
whether in the case of an untrue statement of a material fact or the omission to
state a material fact, such statement or omission 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
untrue statement or omission. The Company and the Underwriters agree (a) that it
would not be just and equitable if the respective obligations of the Company and
the Underwriters to contribute pursuant to this Section 11 were to be determined
by pro rata or per capita allocation of the aggregate damages or by any other
method of allocation that does not take account of the equitable considerations
referred to in the first sentence of this Section 11 and (b) that the
contribution of each contributing Underwriter shall not be in excess of its
proportionate share (based on the ratio of the number of Units purchased by such
Underwriter to the number of Units purchased by all contributing Underwriters)
of the portion of such losses, claims, damages or liabilities for which the
Underwriters are responsible. No person guilty of a fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who is not guilty of such fraudulent
misrepresentation. As used in this Section 11, the word "Company" includes any
officer, director, or person who controls the Company within the meaning of
Section 15 of the Act. If the full amount of the contribution specified in this
Section 11 is not permitted by law, then the applicable Underwriter and each
person who controls the applicable Underwriter shall be entitled to contribution
from the Company, its officers, directors and controlling persons to the full
extent permitted by law. The foregoing contribution agreement shall in no way
affect the contribution liabilities of any persons having liability under
Section 11 of the Act other than the Company and the Underwriters. No
contribution shall be requested with regard to the settlement of any matter from
any party who did not consent to the settlement; provided, however, that such
consent shall not be unreasonably withheld in light of all factors of importance
to such party.
12. COSTS AND EXPENSES.
(a) Whether or not this Agreement becomes effective or the sale of the
Units to the Underwriters is consummated, the Company will pay all costs and
expenses incident to the performance of this Agreement by the Company,
including, but not limited to, the fees and expenses of counsel to the Company
and of the Company's accountants; the costs and expenses incident to the
preparation, printing, filing and distribution under the Act of the Registration
Statement (including the financial statements therein and all amendments and
exhibits thereto), Preliminary Prospectus and the Prospectus, as amended or
supplemented; the fee of the NASD in connection with the filing required by the
NASD relating to the offering of the Offered Securities; all expenses, including
the reasonable fees and disbursements of counsel to the Underwriters, in
connection with the qualification of the Units under the state securities or
blue sky laws which the Representatives shall designate; the out-of-pocket
travel expenses of the Underwriters and counsel to the Underwriters or other
professionals designated by the Underwriters to visit the Company's facilities
for purposes of discharging due diligence responsibilities; the cost of printing
and furnishing to the Underwriters copies of the Registration Statement, each
Preliminary Prospectus, the Prospectus, this Agreement, the Public Warrant
Agreement, the Underwriters' Warrant Agreement, the Agreement Among
Underwriters, Selling Agreement, Underwriters' Questionnaire, and the Blue Sky
Memorandum and any supplements thereto; any fees relating to the listing of the
Units, Common Stock and Redeemable Warrants on The Nasdaq SmallCap Market or any
other securities exchange; the cost of printing the certificates representing
the securities comprising the Units; the fees of the transfer agent and warrant
agent the cost of publication of at least three (3) "tombstones" of the offering
(at least one of which shall be in national business newspaper and one of which
shall be in a major New York newspaper); and the cost of preparing at least four
(4) hard cover "bound volumes" relating to the offering, in accordance with the
Representatives' request. The Company shall pay any and all taxes (including any
transfer, franchise, capital stock or other tax imposed by any jurisdiction) on
sales to the Underwriters hereunder. The Company will also pay all costs and
expenses incident to the furnishing of any amended Prospectus or of any
supplement to be attached to the Prospectus as called for in Section 6(a) of
this Agreement except as otherwise set forth in said Section 6(a).
(b) In addition to the foregoing expenses, the Company shall at the
First Closing Date pay to the Representatives, individually and not as a
representative of the Underwriters, a non-accountable expense allowance equal to
two percent (2%) of the gross proceeds derived from the sale of Units offered
hereby, of which $150,000 has been paid. In the event the Over-Allotment Option
is exercised, the Company shall pay to each Representative, individually and not
as representatives of the Underwriters, at the Option Closing Date an additional
amount non-accountable expense allowance equal to two percent (2%) of the gross
proceeds received upon exercise of the Over-Allotment Option. The Company shall
not be obligated to pay any further non-accountable expense allowance to any of
the Underwriters set forth on Schedule A, other than the Representative, on the
First Closing Date, the Option Closing Date or otherwise.
(c) In the event the transactions contemplated hereby are not
consummated for any reason, the Company shall be liable for the out-of-pocket
accountable expenses actually incurred by the Underwriters. In the event the
out-of-pocket accountable expenses actually incurred by the Underwriters are
less than the amounts paid pursuant to Section 12(b) hereof, each
Representative, individually and not as representatives of the Underwriters,
shall refund the difference to the Company.
(d) If the Over-Allotment Option is exercised, the Selling Shareholders
shall pay a pro rata portion of all expenses incurred by the Company pursuant to
this Section 12.
13. SUBSTITUTION OF UNDERWRITERS. If any Underwriters shall for any
reason not permitted hereunder cancel their obligations to purchase the Firm
Securities hereunder, or shall fail to take up and pay for the number of Firm
Securities set forth opposite their respective names in Schedule A hereto upon
tender of such Firm Securities in accordance with the terms hereof, then:
(a) If the aggregate number of Firm Securities which such Underwriter
or Underwriters agreed but failed to purchase does not exceed ten percent (10%)
of the total number of Firm Securities, the other Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the Firm Securities which such defaulting Underwriter or Underwriters
agreed but failed to purchase.
(b) If any Underwriter or Underwriters so default and the agreed number
of Firm Securities with respect to which such default or defaults occurs is more
than ten percent (10%) of the total number of Firm Securities, the remaining
Underwriters shall have the right to take up and pay for (in such proportion as
may be agreed upon among them) the Firm Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase. If such remaining
Underwriters do not, at the First Closing Date, take up and pay for the Firm
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase, the time for delivery of the Firm Securities shall be extended to the
next business day to allow the several Underwriters the privilege of
substituting within twenty-four (24) hours (including non-business hours)
another underwriter or underwriters satisfactory to the Company. If no such
underwriter or underwriters shall have been substituted as aforesaid, within
such twenty-four (24) hour period, the time of delivery of the Firm Securities
may, at the option of the Company, be again extended to the next following
business day, if necessary, to allow the Company the privilege of finding within
twenty-four (24) hours (including non-business hours) another underwriter or
underwriters to purchase the Firm Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase. If it shall be arranged for the
remaining Underwriters or substituted Underwriters to take up the Firm
Securities of the defaulting Underwriter or Underwriters as provided in this
Section 13, (i) the Company or the Representatives shall have the right to
postpone the time of delivery for the period of not more than seven (7) business
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees promptly to file any amendments to the
Registration Statement or supplements to the Prospectus which may thereby be
made necessary, and (ii) the respective numbers of Firm Securities to be
purchased by the remaining Underwriters or substituted Underwriters shall be
taken at the basis of the underwriting obligation for all purposes of this
Agreement.
If in the event of a default by one or more Underwriters and the
remaining Underwriters shall not take up and pay for all the Firm Securities
agreed to be purchased by the defaulting Underwriters or substitute another
underwriter or underwriters as aforesaid, and the Company shall not find or
shall not elect to seek another underwriter or underwriters for such Firm
Securities as aforesaid, then this Agreement shall terminate.
If, following exercise of the Over-Allotment Option, any Underwriter or
Underwriters shall for any reason not permitted hereunder cancel their
obligations to purchase Option Securities at the Option Closing Date, or shall
fail to take up and pay for the number of Option Securities, which they become
obligated to purchase at the Option Closing Date upon tender of such Option
Securities in accordance with the terms hereof, then the remaining Underwriters
or substituted Underwriters may take up and pay for the Option Securities of the
defaulting Underwriters in the manner provided in Section 13(b) hereof. If the
remaining Underwriters or substituted Underwriters shall not take up and pay for
all such Option Securities, the Underwriters shall be entitled to purchase the
number of Option Securities for which there is no default or, at their election,
the option shall terminate and the exercise thereof shall be of no effect.
As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 13. In the event of
termination, there shall be no liability on the part of any nondefaulting
Underwriter to the Company, provided that the provisions of this Section 13
shall to in any event affect the liability of any defaulting Underwriter to the
Company arising out of such default.
14. TERMINATION.
(a) This Agreement, except for Sections 10, 11, 12, 15, 16, 17 and 18,
may be terminated at any time prior to the First Closing Date, and the
Over-Allotment Option, if exercised, may be canceled at any time prior to the
Option Closing Date, by the Representative if in its sole judgment it is
impracticable to offer for sale or to enforce contracts made by the Underwriters
for the resale of the Offered Securities agreed to be purchased hereunder by
reason of (i) the Company having sustained a material loss, whether or not
insured, by reason of fire, earthquake, flood, accident or other calamity, or
from any labor dispute or court or government action, order or decree; (ii)
trading in securities on the New York Stock Exchange, the American Stock
Exchange, The Nasdaq SmallCap Market or The Nasdaq National Market having been
suspended or limited; (iii) material governmental restrictions having been
imposed on trading in securities generally (not in force and effect on the date
hereof); (iv) a banking moratorium having been declared by federal or New York
state authorities; (v) an outbreak of international hostilities or other
national or international calamity or crisis or change in economic or political
conditions having occurred; (vi) a pending or threatened legal or governmental
proceeding or action relating generally to the Company's business, or a
notification having been received by the Company of the threat of any such
proceeding or action, which could materially adversely affect the Company; (vii)
except as contemplated by the Prospectus, the Company is merged or consolidated
into or acquired by another company or group or there exists a binding legal
commitment for the foregoing or any other material change of ownership or
control occurs; (viii) the passage by the Congress of the United States or by
any state legislative body or federal or state agency or other authority of any
act, rule or regulation, measure, or the adoption of any orders, rules or
regulations by any governmental body or any authoritative accounting institute
or board, or any governmental executive, which is reasonably believed likely by
the Representatives to have a material impact on the business, financial
condition or financial statements of the Company or the market for the
securities offered pursuant to the Prospectus; (ix) any adverse change in the
financial or securities markets beyond normal market fluctuations having
occurred since the date of this Agreement, or (x) any material adverse change
having occurred, since the respective dates of which information is given in the
Registration Statement and Prospectus, in the earnings, business prospects or
general condition of the Company, financial or otherwise, whether or not arising
in the ordinary course of business.
(b) If the Representatives elect to prevent this Agreement from
becoming effective or to terminate this Agreement as provided in this Section 14
or in Section 13 hereof, the Company shall be promptly notified by the
Representatives, by telephone or telegram, confirmed by letter, in accordance
with Section 16 hereof.
15. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers, directors, stockholders and the
Selling Shareholders and the undertakings 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 the Underwriters, the Company or any of its officers or
directors or any controlling person or any of the Selling Shareholders and will
survive delivery of and payment of the Offered Securities and the termination of
this Agreement.
16. NOTICE. Any communications specifically required hereunder to be in
writing, if sent to the Underwriters, will be mailed, delivered and confirmed to
Institutional Equity Corporation at 8214 Westchester, Suite 500, Dallas, Texas
75225, with a copy sent to Winstead Sechrest & Minick P.C., 5400 Renaissance
Tower, 1201 Elm Street, Dallas, Texas 75270; or if sent to the Company, will be
mailed, delivered and confirmed to it at Streamedia Communications, Inc., 9 East
45th Street, New York, New York 10017, with a copy sent to Kogan & Taubman,
L.L.C., 30 Broadway, Suite 2250, New York, New York 10006; or if sent to a
Selling Shareholder, will be mailed, delivered and confirmed to such Selling
Shareholder, c/o Streamedia Communications, Inc., 9 East 45th Street, New York,
New York 10017, with a copy sent to Kogan & Taubman, L.L.C., 30 Broadway, Suite
2250, New York, New York 10006.
17. PARTIES IN INTEREST. This Agreement is made solely for the benefit
of the Underwriters, the Representative, on an individual basis, the Company,
the Selling Shareholders, any person controlling the Company or the
Underwriters, directors of the Company, nominees for directors of the Company
(if any) named in the Prospectus, officers of the Company who have signed the
Registration Statement and each of their respective executors, administrators,
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, as such purchaser, from the Underwriters of the Units.
All of the obligations of the Underwriters hereunder are several and not joint.
18. APPLICABLE LAW. This Agreement will be governed by, and construed
in accordance with, the laws of the State of Texas applicable to agreements made
and to be entirely performed within Texas.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return this Agreement, whereupon it will become a
binding agreement among the Company, the Selling Shareholders and the
Underwriters in accordance with its terms.
Very truly yours,
STREAMEDIA COMMUNICATIONS, INC.
By:
James D. Rupp
President and Chief Executive Officer
SELLING SHAREHOLDERS,
solely as to Sections 3, 7, 16 and 17 Hereof
-1-
*
Scott Hunter
*
Linda Essary
*
Sovereign Services Limited
*
Mark E. Futrovsky
*
Ranjit Kripalani
*
Kevin T. Clare
*
Gary J. Schmitt
*
James David Wideman
*
Michael Marks
*
Global Man Marketing
*
Stock Exposure, Inc.
*
Charles Marmelstein
*
Kundrat Corp.
*
Thomas Kundrat
*
Michael Fleishman
*
Malcolm Labell
*
Jay Cho
*
Richard Honig
*
Harold Kim
*
Glenn B. Axelrod
-1-
* By:
Robert A. Shuey, III
Attorney-in-Fact
The foregoing Underwriting Agreement is hereby confirmed and accepted
as of the date first above written.
INSTITUTIONAL EQUITY CORPORATION
By:
Name:
Title:
CAPITAL WEST SECURITIES, INC.
By:
Name:
Title:
SCHEDULE A
UNDERWRITERS
Number of
Underwriters Firm Securities
to be Purchased
Institutional Equity Corporation ______
Capital West Securities, Inc. ______
------
1,000,000
SCHEDULE B
SELLING SHAREHOLDERS
Selling Shareholder
Number
of
Option
Shares
Scott Hunter 588
Linda Essary 295
Sovereign Services Limited 6,145
Mark E. Futrovsky 441
Ranjit Kripalani 1,465
Kevin T. Clare 1,465
Gary J. Schmitt 705
James David Wideman 295
Michael Marks 1,465
Global Man Marketing 878
Stock Exposure, Inc. 1,173
Charles Marmelstein 412
Kundrat Corp. 587
Thomas Kundrat 587
Michael Fleishman 295
Malcolm Labell 588
Jay Cho 588
Richard Honig 295
Harold Kim 1,173
Glenn B. Axelrod 295
19,735
SCHEDULE C
STOCKHOLDERS ENTERING INTO LOCK-UP AGREEMENTS