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$15,000,000 OF __% CONVERTIBLE SUBORDINATED NOTES DUE _____, 2008
(PLUS $2,250,000 OF NOTES TO COVER OVER-ALLOTMENTS, IF ANY)
▇▇▇▇▇▇▇▇▇▇ INDUSTRIES, INC.
UNDERWRITING AGREEMENT
________ __, 1998
ADVEST, INC.
&
BLACK & COMPANY, INC.
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TABLE OF CONTENTS
Page
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1. The Notes. . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Registration Statement and Prospectus . . . . . . . . . . . 2
3. Agreements to Sell and Purchase . . . . . . . . . . . . . . 2
4. Agreements of the Company as to Delivery and Payment. . . . 3
5. Further Agreements of the Company . . . . . . . . . . . . . 4
6. Representations and Warranties. . . . . . . . . . . . . . . 8
7. Indemnification.. . . . . . . . . . . . . . . . . . . . . .17
8. Conditions of the Obligations of the Underwriters . . . . .20
9. Effective Date of Agreement, Termination and
Defaults. . . . . . . . . . . . . . . . . . . . . . . . . .23
10. Effectiveness of Registration Statement . . . . . . . . . .25
11. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . .25
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$15,000,000 of __% Convertible Subordinated Notes Due _______, 2008
(plus $2,250,000 of Notes to Cover Over-Allotments, if any)
▇▇▇▇▇▇▇▇▇▇ Industries, Inc.
UNDERWRITING AGREEMENT
_________ __, 1998
Advest, Inc.
Black & Company, Inc.
As Representatives of the Several Underwriters
c/o ADVEST, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇▇▇▇ Industries, Inc., an Oregon corporation (the "Company")
confirms its agreement with the several underwriters listed in Schedule I
hereto (the "Underwriters"), for whom Advest, Inc. and Black & Company, Inc.
(the "Representatives") have been duly authorized to act as representatives,
as follows:
1. THE NOTES. Subject to the terms and conditions set forth in this
agreement (the "Agreement"), the Company proposes to issue and sell to the
Underwriters (the "Offering") $15,000,000 aggregate principal amount of its
Convertible Subordinated Notes due _______, 2008 (the "Firm Notes"). The
Company also proposes to grant to the Underwriters an option to purchase up
to $2,250,000 aggregate principal amount of Convertible Subordinated Notes
due , 2008 (the "Additional Notes") solely for the purpose of covering
over-allotments, if any, if requested by the Underwriters as provided in
Section 3 hereof. The Firm Notes and the Additional Notes are herein
collectively called the "Notes." The Notes will be issued pursuant to an
indenture (the "Indenture") to be entered into between the Company, as
issuer, and U.S. Trust Company, National Association, as trustee (the
"Indenture Trustee"). The Notes are convertible into shares of the Company's
common stock (the "Conversion Shares") at a conversion price of $ per
share, subject to adjustment as set forth in the Indenture. In connection
with the Offering, the Company is entering into [and closing the initial
borrowings under a Credit Agreement (the "New Credit Agreement") with
_____________, as agent, and ______________ as lenders, to provide the Company
a $53 million secured credit facility], [or: certain amendments (the
"Existing Credit Agreement Amendments") to the Company's Revolving Credit
Agreement with Key Bank]. The Offering, the initial borrowings under the
[New Credit Agreement] [or: the Existing Credit Agreement Amendments] are
collectively referred to as the "Transactions."
The closing of the Transactions, and the other transactions contemplated
thereby, will be concurrent, and the Offering is conditioned upon completion
of the other components of the Transactions.
The Company hereby confirms its agreement with the Underwriters as follows:
2. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 (File No. 333-63003) including a
prospectus, relating to the Notes and the Conversion Shares. To the extent
the registration statement has been amended, each such amendment has been
prepared and filed with the Commission. Such registration statement, as
amended, at the time when it became effective, and any registration statement
filed with the Commission pursuant to Rule 462(b) under the Act, at the time
when it becomes effective, including all financial schedules and exhibits
thereto and all of the information (if any) deemed to be part of the
registration statements at the time of effectiveness pursuant to Rule 430A
under the Act ("Rule 430A"), is hereinafter referred to as the "Registration
Statement"; the prospectus in the form first provided to the Underwriters by
the Company for use in connection with the offering and sale of the Notes and
the Conversion Shares (whether or not required to be filed pursuant to Rule
424(b) under the Act ("Rule 424(b)")), and including all documents
incorporated or deemed incorporated by reference therein, is hereinafter
referred to as the "Prospectus," except that if any revised prospectus shall
be provided to the Underwriters by the Company for use in connection with the
offering of the Notes and/or the Conversion Shares that differs from the
Prospectus (whether or not any such revised prospectus is required to be
filed by the Company pursuant to Rule 424(b)), the term "Prospectus" shall
refer to the revised prospectus from and after the time it is first provided
to the Underwriters for such use. Each preliminary prospectus included in
the Registration Statement prior to the time it became effective is herein
referred to as a "Preliminary Prospectus."
3. AGREEMENTS TO SELL AND PURCHASE.
(a) On the basis of the representations and warranties contained
in this Agreement, and subject to the terms and conditions hereof, the
Company agrees to issue and sell to the Underwriters, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a
purchase price equal to 94.5% of the principal amount thereof, the respective
aggregate principal amounts of Firm Notes set forth opposite the name of such
Underwriter in Schedule I hereto.
(b) On the basis of the representations and warranties contained
in this Agreement, and subject to the terms and conditions hereof, (i) the
Company agrees to issue and sell to the Underwriters, and the Underwriters
shall have the right, from time to time (subject to the last sentence of
Section 4(b)) to purchase from the Company, severally and not jointly, up to
the aggregate number of Additional Notes at a purchase price equal to 94.5%
of the principal amount thereof. Additional Notes may be purchased as
provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Notes. If
any Additional Notes are to be purchased, each Underwriter, severally and not
jointly, agrees to purchase the aggregate principal amount of
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Additional Notes (subject to such adjustments to eliminate fractional Notes
as the Representatives may determine) that bears the same proportion to the
total number of Additional Notes to be purchased as the number of Firm Notes
set forth opposite the name of such Underwriter in Schedule I bears to the
total number of Firm Notes.
(c) The Company is advised by the Representatives that the
Underwriters propose to make a public offering of their prospective portions of
the Notes as soon after the Registration Statement and this Agreement become
effective as in the Representatives' judgment is advisable.
(d) The Company covenants and agrees that it will not, for a period
of 180 days following the date this Agreement becomes effective, without the
prior, written consent of Advest, Inc. on behalf of the Underwriters, offer,
pledge, sell or contract to sell, or otherwise dispose of (or enter into any
transaction which is designed to, or could be expected to, result in the
disposition (whether by actual disposition or effective economic disposition due
to cash settlement or otherwise) by the Company or any affiliate of the
Company), directly or indirectly, or announce the offering of, any other shares
of capital stock of the Company or any securities or options convertible into,
or exchangeable or exercisable for, shares of capital stock (other than the
Notes); PROVIDED, HOWEVER, that the Company may grant options and may issue and
sell shares of capital stock pursuant to any employee stock option plan,
employee share purchase plan, stock ownership plan or dividend reinvestment plan
of the Company that was approved by the Board of Directors of the Company prior
to the date this Agreement becomes effective, and the Company may issue shares
of capital stock issuable upon the conversion of securities or the exercise of
warrants outstanding at the time this Agreement becomes effective.
4. AGREEMENTS OF THE COMPANY AS TO DELIVERY AND PAYMENT. The Company
agrees with each Underwriter that:
(a) Delivery to the Underwriters of and payment for the Firm Notes
shall be made at 10:00 A.M., New York City time, on the third (or, in the event
this Agreement is executed after 4:30 p.m., New York City time, the fourth) full
business day (such time and date being referred to as the "Closing Date") after
this Agreement is executed or at such other time and date as the Representatives
and the Company may agree upon in writing, at such place as the Representatives
shall designate.
(b) Delivery to the Underwriters of and payment for any Additional
Notes to be purchased by the Underwriters shall be made at such place as the
Representatives shall designate, at 10:00 A.M., New York City time, on such date
or dates (individually, an "Option Closing Date" and collectively, the "Option
Closing Dates"), which may be the same as the Closing Date but shall in no event
be earlier than the Closing Date, as shall be specified in a written notice from
the Representatives to the Company of the Underwriters' determination to
purchase an aggregate principal amount, specified in said notice, of Additional
Notes. Any such notice may be given at any time prior to the thirty-first
(31st) day after the date of this Agreement.
(c) Unless otherwise agreed, the certificates in definitive form
for the Notes to be purchased by each Underwriter in book-entry form and in
authorized
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denominations and registered in the name of the nominee of The Depository
Trust Company ("DTC") shall be delivered by or on behalf of the Company
through the facilities of DTC for the account of such Underwriter, against
payment of the purchase price therefor by wire transfer of same day funds to
the Company, or upon its order, to an account designated by the Company, with
any transfer taxes payable upon initial issuance or the transfer thereof duly
paid by the Company for the respective accounts of the Underwriters. The
Company will make one or more certificates in definitive form for the Notes
available for checking and packaging by the Underwriters at the offices in
New York, New York of Advest, Inc. at least 24 hours prior to the Closing
Date.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company also agrees with
each Underwriter that:
(a) the Company will, if the Registration Statement has not
heretofore become effective under the Act, file an amendment to the
Registration Statement or, if necessary pursuant to Rule 430A under the Act,
a post-effective amendment to the Registration Statement, as soon as
practicable after the execution and delivery of this Agreement, and will use
its best efforts to cause the Registration Statement or such post-effective
amendment to become effective at the earliest possible time; and the Company
will comply fully and in a timely manner with the applicable provisions of
Rule 424(b), Rule 430A and the other rules under the Act;
(b) the Company will advise the Underwriters promptly and, if
requested by the Representatives, shall confirm such advice in writing (and
provide copies of any relevant correspondence and other documents) to the
Representatives (i) when the Registration Statement has become effective, if
and when the Prospectus is sent for filing pursuant to Rule 424 under the
Act, and when any post-effective amendment to the Registration Statement
becomes effective, (ii) of the receipt of any comments or correspondence from
the Commission that relate to the Registration Statement or requests by the
Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement, or of the suspension of qualification of the
Notes or the Conversion Shares for offering or sale in any jurisdiction, or,
to the knowledge of the Company, of the threat or initiation of any
proceedings for such purpose by the Commission or any state securities
commission or other regulatory authority, and (iv) of the happening of any
event or information becoming known during the period referred to in
paragraph (e) below that makes any statement of a material fact made in the
Registration Statement untrue or that requires the making of any additions to
or changes in the Registration Statement (as amended or supplemented from
time to time) in order to make the statements therein not misleading or that
makes any statement of a material fact made in the Prospectus (as amended or
supplemented from time to time) untrue or that requires the making of any
additions to or changes in the Prospectus (as amended or supplemented from
time to time) in order to make the statements therein not misleading; if at
any time the Commission shall issue or institute proceedings (or threaten to
institute any such proceedings) to issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue or institute proceedings
(or threaten to institute proceedings) to issue an order suspending the
qualification or exemption of the Notes or the Conversion Shares under any
state securities
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or Blue Sky laws, the Company shall use its best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(c) the Company will furnish to each of the Representatives
without charge one signed copy of the Registration Statement as first filed
with the Commission and of each amendment to it, including all exhibits filed
therewith, and will furnish to the Representatives such number of conformed
copies of the Registration Statement as so filed and of each amendment to it,
without exhibits, as the Representatives may reasonably request;
(d) the Company will not file any amendment or supplement to the
Registration Statement, whether before or after the time when it becomes
effective, or make any amendment or supplement to the Prospectus of which the
Representatives shall not previously have been advised and provided a copy a
reasonable period of time prior to the filing thereof and to which the
Representatives or their counsel shall reasonably object; and the Company will
prepare and file with the Commission, promptly upon the Representatives'
reasonable request, any amendment to the Registration Statement or supplement to
the Prospectus that may be necessary or advisable in connection with the
distribution of the Notes by the Representatives in their or their counsel's
reasonable opinion, and will use its best efforts to cause the same to become
effective as promptly as possible;
(e) promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period as a prospectus is required by the
Act to be delivered in connection with the sales by an underwriter or a dealer
(in the reasonable written opinion of the Representatives' counsel, it being
understood that no opinion of the Representatives' counsel shall be necessary
for distribution of the Prospectus prior to or on the Closing Date), the Company
will furnish to each Representative, Underwriter and dealer without charge as
many copies of the Prospectus (and any amendment or supplement of the
Prospectus) as the Representatives or such Underwriters or dealers may
reasonably request for the purposes contemplated by the Act; the Company
consents to the lawful use of the Prospectus and any amendment or supplement
thereto by any Underwriter or any dealer, both in connection with the offering
or sale of the Notes and for such period of time thereafter as the Prospectus is
required by the Act to be delivered in connection therewith;
(f) if during the period specified in paragraph (e) any event shall
occur or information become known as a result of which in the reasonable opinion
of the Representatives' counsel it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in light of the
circumstances existing as of the date the Prospectus is delivered to a
purchaser, not misleading, or it is necessary to amend or supplement the
Prospectus to comply with any law, the Company will forthwith prepare and,
subject to paragraph 5(d) above, file with the Commission at the sole expense of
the Company an appropriate amendment or supplement to the Prospectus so that the
statements of any material facts in the Prospectus, as so amended and
supplemented, will not in light of the circumstances when it is so delivered, be
misleading, or so that the Prospectus will comply with law and the Company will
furnish to the Representatives and to such Underwriters and dealers as the
Representatives shall specify, at the sole expense of the Company, such number
of copies thereof as the Representatives or such Underwriters or dealers may
reasonably request;
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(g) without limiting the generality of the foregoing clause (f), the
Company acknowledges and agrees that if, prior to the exercise in full or
termination or expiration of the option to purchase the Additional Notes, the
Company incurs any liability or obligation, direct or contingent, or enters into
any material transaction, or otherwise takes any action or experiences any
change in situation or circumstances which may render the Prospectus (as it then
exists) misleading, the Company shall (i) promptly notify Advest, Inc. in
writing of such event, such notice to explain the nature and scope of such event
in reasonable detail insofar as possible, and (ii) as may be necessary or
advisable in connection with the distribution of the Notes by the
Representatives in their counsel's reasonable opinion, forthwith prepare and,
subject to paragraph 5(d) above, file with the Commission at the sole expense of
the Company an appropriate amendment to the Registration Statement or supplement
to the Prospectus, and (iii) at the sole expense of the Company, reproduce and
distribute such amendment or supplement to such persons or institutions as
Advest, Inc. shall reasonably request;
(h) prior to any public offering of the Notes and/or Conversion
Shares, the Company will cooperate with the Representatives and counsel for the
Representatives in connection with the registration or qualification of the
Notes and/or Conversion Shares for offer and sale by the several Underwriters
and by dealers under the state securities or Blue Sky laws of such jurisdictions
as the Representatives may request (provided, that the Company shall not be
obligated to qualify as a foreign corporation or business trust in any
jurisdiction in which it is not otherwise required to be so qualified or to take
any action which would subject it to general consent to service of process in
any jurisdiction in which it is not now otherwise required to be so subject);
the Company will continue such cooperation so long as required by law for the
distribution of the Notes and/or Conversion Shares and will file such consents
to service of process or other documents as may be necessary in order to effect
such registration or qualification (provided, that the Company shall not be
obligated to take any action that would subject it to general consent to service
of process in any jurisdiction in which it is not now otherwise required to be
so subject);
(i) the Company will not acquire any Notes or any capital stock of
the Company prior to the exercise in full or termination or expiration of the
option to purchase the Additional Notes, nor will the Company declare or pay any
dividend or make any other distribution upon its capital stock payable to
stockholders of record on a date prior to the exercise in full or termination or
expiration of the option to purchase the Additional Notes;
(j) the Company will mail and make generally available to holders of
Notes and/or Conversion Shares and furnish to the Representatives as soon as
reasonably practicable a consolidated earnings statement covering a period of at
least 12 months beginning after the "effective date" (as defined in Rule 158
under the Act) of the Registration Statement (but in no event commencing later
than 90 days after such date) that will satisfy the provisions of Section 11(a)
of the Act and Rule 158 thereunder, if applicable to holders of the Notes and/or
Conversion Shares;
(k) During the period of five (5) years after the date of this
Agreement, the Company will furnish to each of the Representatives a copy (i) as
soon as practicable after the filing thereof, of each report filed by it with
the Commission, any securities exchange or the National Association of
Securities Dealers, Inc. ("NASD"); (ii) as soon as
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practicable after the release thereof, of each press release relating to the
Company; (iii) as soon as available, of each report of the Company mailed to
the Company's shareholders; and (iv) as soon as available, such other
publicly available information concerning the Company as the Representatives
may reasonably request;
(l) whether or not the transactions contemplated hereby are
consummated or this Agreement becomes effective as to all of its provisions or
is terminated, to pay all costs, fees, expenses and taxes incident to the
performance by the Company of its obligations hereunder, including (i) the
preparation, printing, filing and distribution under the Act of the Registration
Statement (including financial statements and exhibits), each Preliminary
Prospectus, the Prospectus and all amendments and supplements to any of them
prior to or during the period specified in paragraph (e) above of this
Section 5, (ii) the word processing, reproduction and distribution of the Blue
Sky Survey and any related memoranda, correspondence and other documents
prepared and delivered by the Underwriters or their counsel (including in each
case the fees and disbursements of counsel for the Underwriters relating to such
preparation and delivery), (iii) the filing of notices of the offer and sale of
the Notes and/or the Conversion Shares by the several Underwriters and by
dealers under the securities or Blue Sky laws of the several states (including
in each case the fees and disbursements of counsel for the Underwriters relating
to such filings), (iv) the filings and clearance with the NASD in connection
with the offering and sale of the Notes and/or Conversion Shares (including the
filing fees relating to such filings and clearance), (v) the approval for
listing of the Notes on the Nasdaq SmallCap Market, and the approval of the
Conversion Shares for listing on the Nasdaq National Market, (vi) furnishing
such copies of the Registration Statement, each Preliminary Prospectus, the
Prospectus and all amendments and supplements thereto as may be reasonably
requested by the Representatives for use in connection with the offering or sale
of the Notes by the Underwriters or by dealers to whom the Notes may be sold,
(vii) obtaining the opinions to be provided pursuant to Section 8(f)-(h) of this
Agreement, (viii) the fees and expenses of the Indenture Trustee, including the
fees and disbursements of counsel for the Indenture Trustee, (ix) the cost of
approving the Notes for eligibility with DTC, and (x) the performance by the
Company of all of its other obligations under this Agreement; if the sale of the
Notes provided for herein is not consummated because the Underwriters exercise
their right to terminate this Agreement pursuant to Section 9 hereof or the
Company shall refuse or be unable to comply with any provision hereof (except as
the result of a breach of this Agreement by the Underwriters), the Company will
promptly reimburse the Underwriters upon demand for all reasonable out-of-pocket
expenses (including the fees and disbursements of counsel for the Underwriters)
that shall have been incurred by the Underwriters in connection with the
proposed purchase and sale of the Notes;
(m) the Company intends to use the net proceeds received by it from
the sale of the Notes being sold by it in the manner specified in the
Prospectus;
(n) if, at the time of effectiveness of the Registration Statement,
any information shall have been omitted therefrom in reliance upon Rule 430A,
then immediately following the execution and delivery of this Agreement, the
Company will prepare, and file or transmit for filing with the Commission in
accordance with Rule 430A and Rule 424(b), copies of an amended prospectus, or,
if required by Rule 430A, a post-
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effective amendment to the Registration Statement (including an amended
prospectus), containing all information so omitted;
(o) the Company will cause the Notes and the Conversion Shares to be
approved for listing, subject to notice of issuance or sale, on the Nasdaq
SmallCap Market and Nasdaq National Market, respectively, and will comply with
all registration, filing and reporting requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") in connection with the sale of the
Notes and issuance of the Conversion Shares; and
(p) the Company will use its best efforts to do and perform all
things required to be done and performed under this Agreement by it prior to or
after the Closing Date or any Option Closing Date, as the case may be, and to
satisfy all conditions precedent required to be satisfied under this Agreement
prior to the delivery of the Notes.
6. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each Underwriter as of the
date hereof, the Closing Date and each Option Closing Date that:
(i) The Commission has not issued any order preventing or
suspending the use of any Prospectus relating to the proposed offering of the
Notes and/or Conversion Shares nor, to the Company's knowledge, instituted or
threatened any proceedings for that purpose. The Registration Statement, on the
date it became effective, and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission (or if not filed, on
the date provided by the Company to the Underwriters in connection with the
offering and sale of the Notes and/or Conversion Shares) and at the Closing Date
and each Option Closing Date conformed or will conform with the requirements of
the Act and the Trust Indenture Act of 1939, as amended, and the rules and
regulations promulgated thereunder (collectively, the "Trust Indenture Act").
When the Registration Statement or any amendment thereto was or is declared
effective, it did not and will not contain an untrue statement of material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, not misleading. The Prospectus and any amendment
or supplement thereto, on the date of filing thereof with the Commission (or if
not filed, on the date provided by the Company to the Underwriters in connection
with the offering and sale of the Notes) and at the Closing Date and each Option
Closing Date did not and will not include an untrue statement of material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. The foregoing shall not apply to statements in or
omissions from the Registration Statement and the Prospectus made or omitted in
reliance upon, and in conformity with, information relating to the Underwriters
furnished in writing to the Company by or on behalf of the Underwriters
expressly for use therein. The Company hereby acknowledges for all purposes
under this Agreement that the inormation furnished to the Company by or on
behalf of the Underwriters for use in the preparation of the Registration
Statement or the Prospectus or any amendment or supplement thereto (the
"Underwriters' Information") consists only of (A) the last paragraph of text set
forth on the outside front cover page of the Prospectus, (B) the stabilization
and passive market-making legends set forth on the inside front cover page of
the Prospectus, and (C) the statements set
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forth in the fourth, seventh and eighth paragraphs under the caption
"Underwriting" in the Prospectus.
(ii) The only subsidiaries of the Company are as set forth
on Exhibit A to this Agreement (singularly, a "Subsidiary" and collectively, the
"Subsidiaries"). The Company has been duly incorporated and is a validly
existing corporation under the laws of Oregon, with full corporate power and
authority to own or lease its properties and assets and to conduct its business
as described in the Registration Statement and the Prospectus and is duly
qualified to do business in each jurisdiction in which it owns or leases real
property or in which the conduct of its business or the ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not (i) have a material adverse effect on the condition
(financial or other), business, assets, prospects, net worth or results of
operations of the Company and its Subsidiaries, taken as a whole, or (ii) give
rise (whether with notice or a lapse of time, or both, or otherwise) to a
default or event of default with respect to the Notes (either, a "Material
Adverse Effect"). Each Subsidiary has been duly incorporated and is a validly
existing corporation and, if applicable, in good standing under the laws of the
jurisdiction set forth opposite its name on Exhibit A, with full corporate power
and authority to own or lease its properties and assets and to conduct its
business as described in the Registration Statement and the Prospectus and is
duly qualified to do business in each jurisdiction in which it owns or leases
real property or in which the conduct of its business or the ownership or
leasing of property requires such qualification, except where the failure to be
so qualified would not have a Material Adverse Effect.
(iii) All of the issued shares of capital stock of each
Subsidiary have been duly authorized and validly issued, are fully paid and
nonassessable and are owned beneficially by the Company or one of its
Subsidiaries (except in the case of ▇▇▇▇▇▇▇▇▇▇ Asia Sdn. Bhd. ("▇▇▇▇▇▇▇▇▇▇
Asia"), only 51% of whose capital stock is owned by a Subsidiary of the
Company), free and clear of all liens, security interests, pledges, charges,
encumbrances, defects, shareholders' agreements, voting agreements, proxies,
voting trusts, equities or claims of any nature whatsoever (collectively,
"Adverse Interests"), except for such Adverse Interests which, individually or
in the aggregate, do not and could not reasonably be expected to have a Material
Adverse Effect or, in the case of ▇▇▇▇▇▇▇▇▇▇ Asia or ▇▇▇▇▇▇▇▇▇▇ Industries
(B.V.I.) Inc., materially impair the Company's ability to exercise control over
any such Subsidiary. Other than the Subsidiaries, the Company does not own,
directly or indirectly, any capital stock or other equity securities of any
other corporation or any ownership interest in any partnership, joint venture or
other association.
(iv) The capitalization of the Company is, and upon
consummation of the transactions contemplated hereby and by the Prospectus will
be, as set forth in the Registration Statement and the Prospectus under the
caption "Capitalization." All of the outstanding shares of capital stock of the
Company have been duly authorized and are validly issued, are fully paid and
non-assessable and conform to the description thereof in the Registration
Statement and the Prospectus and were not issued in violation of any preemptive
rights or other rights to subscribe for or purchase securities. Except for the
Notes, and except as set forth in the Registration Statement and the Prospectus
with respect to the Company's stock option and employee share purchase plans and
options, warrants or other rights to acquire shares of the Company's capital
stock granted outside of the
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Company's stock option and employee share purchase plans, no options,
warrants or other rights to purchase from the Company, agreements or other
obligations of the Company to issue or other rights to convert any obligation
into, or exchange any securities for, shares of the Company's capital stock
of or ownership interests in the Company are outstanding. None of the
securities of the Company or any Subsidiary has been issued in violation of
applicable U.S. federal or state securities laws except for such violations
which, individually or in the aggregate, have not resulted and could not
reasonably be expected to result in any Material Adverse Effect.
(v) Subsequent to the respective dates as of which
information is given in the Registration Statement and Prospectus, and except
as described therein, (A) neither the Company nor any Subsidiary has incurred
any liabilities or obligations, direct or contingent, or entered into any
transactions which liabilities, obligations or transactions, individually or
in the aggregate, would be material to the Company and its Subsidiaries taken
as a whole, (B) neither the Company nor any Subsidiary has purchased any of
its outstanding capital stock or declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock or otherwise, and
(C) there has not been any material adverse change in the condition
(financial or other), business, assets, prospects, net worth or results of
operations of the Company and its Subsidiaries, taken as a whole, or the
Company's or any Subsidiary's capital stock, short-term debt or long-term
debt.
(vi) The Notes have been duly authorized by the Company,
will be duly executed and delivered by the Company on the Closing Date and on
each Option Closing Date, and, when authenticated in the manner provided for
in the Indenture and delivered against payment therefor as described in the
Registration Statement and the Prospectus, will be legal, valid and binding
obligations of the Company enforceable in accordance with their terms, except
(i) as enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and by general equity principles, and (ii) as rights to indemnity
or contribution hereunder may be limited by Federal or state securities laws
or the public policy underlying such laws, and will be entitled to the
benefits of the Indenture. The Notes conform in all material respects with
the description thereof and all statements relating thereto in the
Registration Statement and the Prospectus. The Notes have been approved for
listing on the Nasdaq SmallCap Market, subject only to notice of issuance.
(vii) The Conversion Shares have been or will be duly
authorized and, upon conversion of the Notes, will be validly issued, fully
paid and nonassessable and will conform to the description of the capital
stock in the Registration Statement and the Prospectus. The Conversion
Shares, upon issuance, will not be subject to any statutory (or to the
knowledge of the Company, any other ) preemptive rights, or to any
encumbrances. A sufficient number of shares of the Company's common stock
have been reserved for issuance upon conversion of the Notes into Conversion
Shares. The Conversion Shares are and will be approved for listing on the
Nasdaq National Market, subject only to notice of issuance.
(viii) This Agreement has been duly authorized, executed
and delivered by the Company and is a legal, valid and binding agreement of
the Company enforceable in accordance with its terms, except (i) as
enforceability thereof may be limited
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by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general equity principles, and
(ii) as rights to indemnity or contribution hereunder may be limited by
Federal or state securities laws or the public policy underlying such laws.
(ix) The Indenture has been duly authorized by the
Company, will be duly executed and delivered by the Company on the Closing
Date, and will be a legal, valid and binding agreement of the Company
enforceable in accordance with its terms, except (i) as enforceability
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally and by general
equity principles, and (ii) as rights to indemnity or contribution hereunder
may be limited by Federal or state securities laws or the public policy
underlying such laws. The Indenture conforms in all material respects with
the description thereof and all statements relating thereto in the
Registration Statement and the Prospectus and, upon the effectiveness of the
Registration Statement, will be qualified under the Trust Indenture Act.
(x) None of the Company or any Subsidiary is in
violation of its Certificate or Articles of Incorporation or by-laws, as the
case may be. Before and after giving effect to the Transactions, none of the
Company or any Subsidiary is in violation of or in breach of or in default in
(nor has any event occurred that with notice or lapse of time, or both, would
be a breach of or a default in) the performance of any obligation, agreement
or condition contained in any agreement, lease, contract, permit, license,
franchise agreement, mortgage, loan agreement, debenture, note, deed of
trust, bond, indenture or other evidence of indebtedness or any other
instrument or obligation (collectively, "Obligations and Instruments") to
which it is a party or by which it or any of its properties or assets are
bound or affected, except for such violation, breach, default as, either
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect. Without limiting the generality of the foregoing
sentence, before and after giving effect to the Transactions, there is no
default or event of default (nor has any event occurred that with notice or
lapse of time, or both, would result in a default or event of default) under
or in connection with any of the Key Agreement, the ▇▇▇▇▇▇ Agreements, the
Finova Agreement or any other Senior Debt and/or Indebtedness (all as defined
in the Prospectus) that has not been waived by valid, effective and
enforceable waivers, true and correct copies of which have been provided to
the Representatives and their counsel in advance of the date hereof. None of
the Company or any Subsidiary is in violation of any statute, judgment,
decree, order, rule or regulation (collectively, "Laws") applicable to it or
any of its properties or assets that, alone or together with other violations
of Laws, could reasonably be expected to result in a Material Adverse Effect.
(xi) The execution, delivery and performance of this
Agreement and delivery of the Notes (and upon conversion thereof, the
Conversion Shares) by the Company and compliance by the Company with all the
provisions hereof and the consummation of the transactions contemplated
hereby and as described in the Registration Statement and the Prospectus
(including, without limitation, the Transactions) will not, alone or upon
notice or the passage of time or both (A) require any consent, approval,
authorization or other order of any court, regulatory body, administrative
agency or other governmental body or third party (except (1) such as may be
required under the Act and the securities or Blue Sky laws of the various
states or by the NASD or (2) such as have been
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obtained prior to the date hereof and true and correct copies of which have
been provided to the Representatives and their counsel in advance of the date
hereof), (B) result in the creation or imposition of any material lien,
charge or encumbrance upon any of the properties or assets of the Company or
any Subsidiary pursuant to the terms and provisions of any Obligation or
Instrument, (C) conflict with or constitute a breach or default under any
Obligation or Instrument to which the Company or any Subsidiary is a party or
by which it or any of its properties or assets are bound (including without
limitation the Key Agreement, the Finova Agreement, the ▇▇▇▇▇▇ Agreements or
any other Senior Debt and/or Indebtedness Obligations and Instruments), or
(D) assuming compliance with the Act and all applicable state securities or
Blue Sky laws, violate or conflict with any Laws applicable to the Company or
any Subsidiary or any of its properties or assets except, with respect to
clauses (B), (C) and (D) hereof, for such liens, charges, encumbrances,
conflicts, breaches, defaults or violations as could not, either individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(xii) Except as set forth in the Registration Statement
and the Prospectus, there is no action, suit, proceeding, inquiry or
investigation, governmental or otherwise before any court, arbitrator or
governmental agency or body (collectively, "Proceedings") pending to which
the Company or any Subsidiary is a party or to which any of their properties
or assets are subject, that, individually or in the aggregate, if determined
adversely to the Company or such Subsidiary, could reasonably be expected to
result in a Material Adverse Effect, or that seeks to restrain, enjoin,
prevent the consummation of or otherwise challenge the issuance or sale of
any of the Notes and/or Conversion Shares to be sold hereunder or the
consummation of the transactions described in the Registration Statement and
the Prospectus and, to the knowledge of the Company, no such Proceedings are
threatened or contemplated. There is no contract, document, agreement or
transaction to which the Company or any Subsidiary is a party, or that
involved or involves the Company or any Subsidiary or any of its properties
or assets that is required to be described in or filed as an exhibit to the
Registration Statement by the Act that has not been so described or filed.
To the knowledge of the Company, no action has been taken by any governmental
agency that suspends the effectiveness of the Registration Statement,
prevents or suspends the use of any Preliminary Prospectus or the Prospectus
or suspends the sale of the Notes and/or Conversion Shares in any
jurisdiction referred to in Section 5(h) hereof. No injunction, restraining
order or order of any nature by a federal or state court of competent
jurisdiction has been issued with respect to the Company or any Subsidiary
that could reasonably be expected to prevent the issuance of the Notes and/or
Conversion Shares, suspend the effectiveness of the Registration Statement,
prevent or suspend the use of any Preliminary Prospectus or the Prospectus or
suspend the sale of the Notes and/or Conversion Shares in any jurisdiction
referred to in Section 5(h) hereof. Every request of the Commission, or any
securities authority or agency of any jurisdiction, for additional
information (to be included in the Registration Statement or the Prospectus
or otherwise) has been complied with in all material respects.
(xiii) Neither the Company nor any Subsidiary has violated any
Federal or state law, statute, ordinance, rule, regulation or common law, as the
same may be interpreted or administered by any Federal, state, regional, county
or local agencies, relating to (A) the protection, investigation, remediation,
or restoration of the environment or natural resources, (B) the handling, use,
storage, treatment, disposal, release or threatened release of
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any Hazardous Material (as defined below), or (C) pollution or contamination
("Environmental Laws"), except for such violations as could not, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, nor, to the knowledge of the Company, are there any
circumstances, past, present or reasonably foreseeable, that may lead to such
violation in the future that, in each case or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. No property
owned or leased by the Company or any Subsidiary is included or, to the
knowledge of the Company, proposed for inclusion on the National Priorities
List promulgated under the Comprehensive Environmental Response Compensation
and Liability Act of 1980, U.S.C. Sections 9601 et seq. Except for any
asbestos - containing materials or lead-based paint that may be, or may have
been contained, on property, to the knowledge of the Company no property
currently, or in the past, owned or leased by the Company or any Subsidiary
contains, or contained, as the case may be, any Hazardous Material that
requires or required, as the case may be, investigation or remediation under
any Environmental Law, except for such investigation or remediation as could
not, either individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect. Neither the Company nor any Subsidiary has caused
or allowed the release of any Hazardous Material on, in, under or from any
property currently or in the past owned or leased by the Company or any
Subsidiary, except for such releases as could not, either individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect, nor
may the Company or any Subsidiary be deemed an "owner or operator" of a
"facility" or "vessel" that owns, possesses, transports, generates,
discharges or disposes of a "hazardous substance" as those terms are defined
in Section 9601 of the Comprehensive Response Compensation and Liability Act
of 1980, U.S.C. Section 9601 et seq. Neither the Company nor any Subsidiary
has received any notice of a claim under or pursuant to any Environmental Law
relating to any Hazardous Material on or originating from any property
currently or in the past owned or leased by the Company or any Subsidiary,
except for such claims as could not, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. "Hazardous
Material" means any substance, material, or waste that is (A) listed,
classified or regulated as a hazardous substance or waste in any
concentration pursuant to any Environmental Law, or (B) any other substance,
material, or waste which may be the subject of regulatory action by any
governmental entity pursuant to any Environmental Law.
(xiv) The Company and each Subsidiary has such permits,
licenses, registrations, franchises and authorizations of governmental or
regulatory authorities or third parties ("Permits"), including, without
limitation, under any applicable Environmental Laws, as are necessary to own,
lease and operate its properties and assets and to conduct its businesses or
operations, except where the failure to have any such Permit could not
reasonably be expected to have a Material Adverse Effect. The Company and
each Subsidiary are in compliance with such Permits, except where such
failure to comply with such Permits could not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. No
event has occurred that allows, or after notice or lapse of time, or both
would allow, revocation or termination thereof or result in any other
material impairment of the rights of the holder of any such Permits.
(xv) Neither the Company nor any Subsidiary is in violation
of any foreign, Federal, state or local law relating to discrimination in the
hiring, promotion or pay of employees for any applicable foreign, Federal or
state wages and hours laws, nor any
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provisions of the Employee Retirement Income Security Act of 1974, as
amended, or the rules and regulations promulgated thereunder ("ERISA") or
similar foreign laws, the violation of which in each case or in the aggregate
could reasonably be expected to result in a Material Adverse Effect. No
"reportable event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) which in each case or in the aggregate
would result in a Material Adverse Effect. The Company has not incurred any
material liability under (i) Title IV of ERISA with respect to the
termination of, or withdrawal from, any "pension plan" or (ii) Sections 412
or 4971 of the Internal Revenue Code of 1986, as amended.
(xvi) None of the Company or any Subsidiary is, or intends
to conduct its business in a manner in which it would become, an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(xvii) Except as otherwise set forth in the Registration
Statement and the Prospectus, the Company and each Subsidiary has good and
marketable title, free and clear of all liens, claims, encumbrances and
restrictions (except liens for taxes not yet due and payable) to all property
and assets described in the Registration Statement as being owned by it,
except for such liens, claims, encumbrances and restrictions as would not
have a Material Adverse Effect. All leases to which the Company or any
Subsidiary is a party are subsisting, valid and binding obligations of the
Company or such Subsidiary and no default of the Company or the Subsidiary
or, to the knowledge of the Company, any other person has occurred or is
continuing thereunder that could reasonably be expected to result in a
Material Adverse Effect. The Company and each Subsidiary enjoys peaceful and
undisturbed possession under all such leases to which the Company or the
Subsidiary is a party as lessee with such exceptions as do not materially
interfere with the use made thereof by the Company or the Subsidiary.
(xviii) The Company and each Subsidiary is insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as is reasonable and prudent for the business in which it
is engaged.
(xix) No labor dispute with the employees of the Company
or any Subsidiary exists or, to the best knowledge of the Company, is
imminent that could reasonably be expected to result in a Material Adverse
Effect. The Company does not know of any existing or imminent labor
disturbance by the employees of any of its or its Subsidiaries' principle
suppliers, customers, manufacturers or contractors that could reasonably be
expected to result in a Material Adverse Effect.
(xx) Deloitte & Touche LLP, the accounting firm that has
audited the required annual financial statements filed or to be filed with
the Commission as part of the Registration Statement and the Prospectus, is
an independent public accounting firm with respect to the Company as required
by the Act.
(xxi) The consolidated financial statements of the Company,
together with related notes of the Company included in the Registration
Statement and the Prospectus, are accurate and present fairly the financial
position, results of operations and
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cash flows of the Company as consolidated with its Subsidiaries at the
indicated dates and for the indicated periods. Such financial statements have
been prepared in accordance with generally accepted accounting principles
("GAAP") consistently applied throughout the periods involved, and all
adjustments necessary for a fair presentation of results for such periods
have been made; any unaudited financial statements have been prepared on a
basis substantially consistent with that of the audited financial statements
included in the Registration Statement and the Prospectus. The summary and
selected financial and operating data included in the Registration Statement
and the Prospectus presents fairly the information shown therein and have
been prepared on a basis consistent with the audited and any unaudited
financial statements, as the case may be, included therein, except as
otherwise set forth therein. The pro forma information included in the
Registration Statement and the Prospectus present fairly the information
shown therein, has been prepared in accordance with GAAP and the Commission's
rules and guidelines with respect to pro forma financial statements and other
pro forma information, and has been properly prepared on the pro forma basis
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate under the
circumstances.
(xxii) No holder of any security of the Company has any
right to require inclusion of any such security in the Registration Statement
or, to the extent such rights exist, (a) such rights have been waived or (b)
the securities as to which such rights exist are subject to an effective
registration statement under the Act. There are no preemptive rights with
respect to the offering being made by the Prospectus or the issuance of the
Conversion Shares upon conversion of the Notes.
(xxiii) The Company and each Subsidiary has filed or caused
to be filed, or has properly filed extensions for, all foreign, federal,
state and local income, value added and franchise tax returns and has paid
all taxes and assessments shown thereon as due, except for such taxes and
assessments as are disclosed or adequately reserved against and that are
being contested in good faith by appropriate proceedings, promptly instituted
and diligently conducted. All material tax liabilities are adequately
provided for on the books of the Company and each Subsidiary, and there is no
material tax deficiency that has been or might be asserted against the
Company or any Subsidiary that is not so provided for. During the time the
Company had elected to be treated as an "S" corporation under the Internal
Revenue Code of 1986, as amended (the "Code"), and any applicable state law,
the Company's election of such status was validly made, and at all times
until April 4, 1996 the Company qualified continuously for treatment as an
"S" corporation under the Code.
(xxiv) The Company and each Subsidiary owns or possesses,
or can acquire on reasonable terms, the patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(collectively, "Patents and Proprietary Rights") employed by it in connection
with the business it now operates except where the failure to so own, possess
or acquire such Patents and Proprietary Rights could not reasonably be
expected to have a Material Adverse Effect. Neither the Company nor any
Subsidiary has received any notice and the Company is not otherwise aware of
any infringement of or conflict with asserted rights of others with respect
to any Patent or Proprietary Rights that, if the subject of any unfavorable
decision, ruling or finding, singly or in the aggregate, could result in a
Material Adverse Effect.
-15-
(xxv) Each of the Company and each Subsidiary has
conducted, is conducting and intends to conduct its business so as to comply
in all material respects with applicable federal, state, local and foreign
government Laws, except where the failure to comply could not reasonably be
expected to have a Material Adverse Effect. Neither the Company nor any
Subsidiary is charged with or, to the Company's knowledge, under
investigation with respect to, any material violation of any such Laws.
(xxvi) None of the Company or any Subsidiary has taken or
will take, directly or indirectly, any action designed to or which has
constituted or that might reasonably be expected to cause or result in, under
the Exchange Act or otherwise, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Notes or
the Conversion Shares.
(xxvii) None of the Company, any Subsidiary or, to the best
knowledge of the Company, any employee or agent of the Company or any
Subsidiary has made any payment of funds of the Company or the Subsidiary or
received or retained any funds in violation of any law, Rule or regulation
(including, without limitation, the Foreign Corrupt Practices Act) or of a
character required to be disclosed in the Prospectus. Neither the Company
nor any Subsidiary has, at any time during the past five years, (1) made any
unlawful contributions to any candidate for any political office, or failed
fully to disclose any contribution in violation of law, or (2) made any
unlawful payment to state, federal or foreign government officer or officers,
or other person charged with similar public or quasi-public duty.
(xxviii) No transaction has occurred between or among the
Company or any Subsidiary and any of the Company's or such Subsidiary's
officers, directors or trustees or any affiliate or affiliates of any such
officer, director or trustee that is required to be described in and is not
described in the Registration Statement and the Prospectus. There is no
material contract, document, agreement, transaction or relationship of a
character required by the Act to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration Statement
that is not described or filed as required.
(xxix) Other than as provided to the Underwriters under
this Agreement, none of the Company or any Subsidiary has incurred any
liability for finder's or broker's fees or agent's commissions in connection
with the execution and delivery of this Agreement, the offer and sale of the
Notes and/or the Conversion Shares or the transactions hereby contemplated.
(xxx) The Company and each Subsidiary maintains a system
of internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with management's general or specific authorization, and (iv) the
recorded accountability for inventory is compared with the existing inventory
at reasonable intervals and appropriate action is taken with respect to any
differences.
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(xxxi) The Company has been subject to the requirements of
Section 12 or 15(d) of the Exchange Act and has filed in a timely manner all
reports and other material required to be filed pursuant to Sections 13, 14
or 15(d) of the Exchange Act since April 4, 1996 and, if the Company has used
Rule 12b-25(b) under the Exchange Act with respect to a report or a portion
of any such report, that report or portion thereof has actually been filed
within the time period prescribed by that rule. All such reports and other
materials filed pursuant to the Exchange Act were, at the time of their
filing, complete and accurate in all material respects.
(xxxii) The Company has not, since the end of its fiscal
year ended June 30, 1998 (for which audited financial statements of the
Company were included in the 1998 Form 10-K, a report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act) defaulted on any (a) installment
or installments of indebtedness for borrowed money or (b) rental on one or
more long term leases, which defaults in the aggregate are material to the
financial position of the Company.
(xxxiii) No Subsidiary is prohibited, directly or indirectly,
from paying any dividends to the Company, from making any other distribution
on any such Subsidiary's capital stock, from repaying to the Company any
loans or advances to such Subsidiary from the Company or from transferring
any of such Subsidiary's property or assets to the Company or any other
Subsidiary.
(xxxiv) The Company has delivered to the Representatives and
their counsel true and correct copies of the [New Credit Agreement]
[or: the Existing Credit Agreement Amendments] in advance of the date
hereof, and there have been no amendments, alterations, modifications or
waivers thereto or in the exhibits or schedules thereto; there shall exist at
and as of each Closing Date and the Option Closing Date (after giving effect
to the transactions contemplated by this Agreement and the
[New Credit Agreement] [or: the Existing Credit Agreement Amendments]) no
conditions that would constitute a default or event of default under the
[New Credit Agreement] [or: the Key Agreement, as amended by the Existing
Credit Agreement Amendments].
(xxxv) The Company has not distributed and will not
distribute any offering material in connection with the offering and sale of
the Notes and/or the Conversion Shares other than the Registration Statement,
a Preliminary Prospectus, the Prospectus and other material, if any,
permitted by the Act.
(b) Any certificate signed by any officer of the Company and
delivered to the Underwriters or to counsel for the Underwriters shall be
deemed a representation and warranty made by the Company, as the case may be,
to each Underwriter as to the matters covered thereby and shall be deemed
incorporated herein in its entirety and shall be effective as if such
representation and warranty were made herein.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each of
the Underwriters and each person, if any, who controls each of the
Underwriters within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act (collectively the
-17-
Underwriters and each such person are sometimes referred to in this Section 7
as the "indemnified parties") from and against any and all losses, claims,
damages, liabilities and judgments caused by, arising out of, related to or
based upon: (i) any inaccuracy of any representation or warranty by the
Company contained in Section 6 hereof; (ii) any failure of the Company to
perform its obligations hereunder or under law; or (iii) any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), including the information deemed to be
part of the Registration Statement at the time of effectiveness pursuant to
Rule 430A, if applicable, or the Prospectus or any Preliminary Prospectus or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that the indemnification contained in this
paragraph with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter or any employee of such Underwriter) on account of any such loss,
liability, claim, damage or expense arising from the sale of the Notes by
such Underwriter to any person if a copy of the Prospectus shall not have
been sent to such person within the time required by the Act and the
Regulations, and the untrue statement or alleged untrue statement or omission
or alleged omission of a material fact contained in such Preliminary
Prospectus was corrected in the Prospectus, as amended or supplemented,
provided that the Company had delivered the Prospectus, as amended or
supplemented, to the several Underwriters on a timely basis to permit such
delivery or sending; and PROVIDED FURTHER, that the Company shall not be
liable in any such case to the extent that such losses, claims, damages,
liabilities or judgments are caused by an untrue statement or omission made
or omitted in reliance upon, and in conformity with, Underwriters'
Information.
(b) In case any action shall be brought against any of the
indemnified parties, based upon any Preliminary Prospectus, the Registration
Statement or the Prospectus or any amendment or supplement thereto, or
otherwise, and with respect to which indemnity may be sought against the
Company, such indemnified parties shall promptly notify the Company in
writing (but the failure so to notify shall not relieve the Company of any
liability that it may otherwise have to such indemnified parties under this
Section 7, although the Company's liability to an indemnified party may be
reduced on a monetary basis to the extent, but only to the extent, it has
been prejudiced by such failure on the part of such indemnified party), and
the Company shall promptly assume the defense thereof, including the
employment of counsel satisfactory to such indemnified party and payment of
all fees and expenses. The indemnified parties shall each have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such indemnified parties unless (i) the employment of such counsel shall have
been specifically authorized by the Company, (ii) the Company shall have
failed to assume promptly the defense, or (iii) the named parties to any such
action (including any impleaded parties) include both the indemnified parties
and the Company, and an indemnified party shall have been advised by counsel
that there may be a conflict of interest between the indemnified parties, on
the one hand, and the Company, on the other hand, (in which case the Company
shall not have the right to assume the defense of such action on behalf of
such indemnified party, it being understood, however, that the Company 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
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general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel)
for the indemnified parties, which firm shall be designated in writing by
Advest, Inc., and that all such fees and expenses shall be reimbursed
promptly as they are incurred). The Company shall not be liable for any
settlement of any such action effected without its written consent, which
consent shall not be unreasonably withheld, but if settled with the written
consent of the Company, the Company agrees to indemnify and hold harmless the
indemnified parties from and against any and all loss or liability by reason
of such settlement. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested the Company to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the
second sentence of this paragraph, the Company agrees that it shall be liable
for any settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 10 business days after delivery
by registered or certified mail to the proper address for notice to the
Company of the aforesaid request (whether or not such delivery is accepted)
and (ii) the Company shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. The
Company shall not, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional and complete release in writing of
such indemnified party from any and all liability on claims that are the
subject matter of such proceeding, which settlement shall be in form and
substance reasonably satisfactory to the indemnified party. The
indemnification provided in this Section 7 will be in addition to any
liability which the Company may otherwise have.
(c) The Underwriters agree, severally and not jointly, to
indemnify and hold harmless each of the Company and its directors and
officers who sign the Registration Statement, and any person controlling the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, to the same extent as the indemnity provided in Section
7(a)(iii) above from the Company to the Underwriters, but only with reference
to information stated in or omitted from the Registration Statement, the
Prospectus or any Preliminary Prospectus in reliance upon, and in conformity
with, the Underwriters' Information. In case any action shall be brought
against the Company, any of the Company's directors, any such officers or any
person controlling the Company based on the Registration Statement, the
Prospectus or any Preliminary Prospectus and in respect of which indemnity
may be sought against the Underwriters, the Underwriters shall have the
rights and duties given to the Company by Section 7(b) hereof (except that if
the Company shall have assumed the defense thereof, such Underwriter shall
not be required to do so, but may employ separate counsel therein and
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of such Underwriter), and the Company, its directors,
any such officers and any person controlling the Officers shall have the
rights and duties given to the "indemnified parties" by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is for
any reason unavailable to an indemnified party or insufficient to hold such
indemnified party harmless in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party,
in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims,
-19-
damages, liabilities and judgments (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and
the Underwriters on the other from the offering of the Notes or (ii) if the
allocation provided in clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Underwriters on the other in connection with
the statements or omissions or alleged statements or omissions that resulted
in such losses, claims, damages, liabilities or judgments, as well as any
other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering and
sale of the Notes (before deducting expenses) received by the Company on the
one hand, and the total underwriting discounts received by the Underwriters
on the other, bears to the total price to the public of the Notes, in each
case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company and the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or the alleged omission to state
a material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the
amount of Underwriting discount received by such Underwriter in connection
with the Notes underwritten by it and distributed to the public. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligation in
this Section 7(d) to contribute are several in proportion to the respective
amount of Notes purchased hereunder by each Underwriter and not joint.
8. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters to purchase and pay for the Firm Notes on the
Closing Date and the Additional Notes on any Option Closing Date are subject
to the fulfillment of each of the following conditions on or prior to the
Closing Date and each Option Closing Date:
(a) All the representations and warranties of the Company
contained in this Agreement and in any certificate delivered hereunder shall
be true and correct on the Closing Date and each Option Closing Date with the
same force and effect as if made on and as of the Closing Date or Option
Closing Date, as applicable. On and prior to the Closing Date or Option
Closing Date, as applicable, the Company shall have performed or complied in
all material respects with all of the agreements herein contained and
required to be
-20-
performed or complied with by the Company at or prior to the Closing Date or
the Option Closing Date, as applicable.
(b) If the Registration Statement is not effective at the time
of the execution and delivery of this Agreement, the Registration Statement
shall have become effective (or, if a post-effective amendment is required to
be filed pursuant to Rule 430A under the Act, such post-effective amendment
shall have become effective) not later than 9:00 A.M., New York City time, on
the day following the date of this Agreement or such later time as the
Representatives may approve in writing or, if the Registration Statement has
been declared effective prior to the execution and delivery hereof in
reliance on Rule 430A, the Prospectus shall have been filed as required by
the Act, if necessary; and at the Closing Date and each applicable Option
Closing Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been commenced or shall be pending before or, to the knowledge of the
Underwriters or the Company, threatened by the Commission; every request for
additional information on the part of the Commission shall have been complied
with to the Underwriters' satisfaction; no stop order suspending the sale of
the Notes and/or the Conversion Shares in any jurisdiction referred to in
Section 5(h) shall have been issued and no proceeding for that purpose shall
have been commenced or shall be pending or, to the best knowledge of the
Underwriters or the Company, threatened.
(c) The Notes and the Conversion Shares shall have been
qualified for sale (or an exemption from such qualification shall have been
secured) under the Blue Sky laws of such states as shall have been specified
by the Representatives.
(d) The legality and sufficiency of the authorization, issuance
and sale or transfer and sale of the Notes and the Conversion Shares
hereunder, the validity and form of the certificates representing the Notes,
the execution and delivery of this Agreement and all corporate proceedings
and other legal matters incident thereto, and the form of the Registration
Statement and the Prospectus (except financial statements) shall have been
approved by counsel for the Underwriters exercising reasonable judgment, and
no Underwriter shall have advised the Company that the Registration Statement
or the Prospectus, or any amendment or supplement thereto, contains an untrue
statement of material fact, or omits to state a fact that in the
Representatives' reasonable opinion is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(e) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any material change, or any development
involving a prospective material change, in or affecting particularly the
business or properties of the Company or any Subsidiary, whether or not
arising in the ordinary course of business, that, in the reasonable judgment
of the Representatives, makes it impractical or inadvisable to proceed with
the public offering or purchase of the Notes as contemplated hereby, or (ii)
any event described in clauses (ii)-(vii) of the second paragraph of Section
9 hereof.
(f) The Underwriters shall have received an opinion
(satisfactory to them and their counsel) dated the Closing Date or the Option
Closing Date, as the case may be, of
-21-
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the Indenture Trustee, in form and
substance satisfactory to the Representatives and attached hereto as Exhibit
B-1.
(g) The Underwriters shall have received an opinion
(satisfactory to them and their counsel) dated the Closing Date or the Option
Closing Date, as the case may be, of Stoel Rives LLP, counsel for the
Company, in form and substance satisfactory to the Representatives and
attached hereto as Exhibit B-2.
(h) The Underwriters shall have received an opinion
(satisfactory to the Underwriters and their counsel) dated the Closing Date
or the Option Closing Date, as the case may be, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel
for the Company, in form and substance satisfactory to the Representatives
and attached hereto as Exhibit B-3.
(i) The Underwriters shall have received an opinion of ▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated the Closing Date or the
Option Closing Date, as the case may be, in form and substance satisfactory
to the Representatives and attached hereto as Exhibit B-4.
(j) The Underwriters shall have received, in connection with the
execution of this Agreement and on the Closing Date and each Option Closing
Date, a "cold comfort" letter from Deloitte & Touche LLP, dated as of each
such date in form and substance satisfactory to the Representatives with
respect to the financial statements and certain financial information and
data contained in the Registration Statement and the Prospectus.
(k) The Underwriters shall have received from the Company a
certificate, signed by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ in their
capacities as the President and Chief Operating Officer of the Company and
Vice President and Chief Financial Officer of the Company, respectively,
addressed to the Underwriters and dated the Closing Date or Option Closing
Date, as applicable, to the effect that:
(i) such officer does not know of any Proceedings instituted,
threatened or contemplated against the Company or any Subsidiary of a
character required to be disclosed in the Prospectus that are not so
disclosed; such officer does not know of any material contract required to
be filed as an exhibit to the Registration Statement which is not so filed;
(ii) such officer has carefully examined the Registration Statement
and the Prospectus and all amendments or supplements thereto and, in such
officer's opinion, such Registration Statement or such amendment as of its
effective date and as of the Closing Date, and the Prospectus or such
supplement as of its date and as of the Closing Date, did not contain an
untrue statement of material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein
not misleading and, in such officer's opinion, since the effective date of
the Registration Statement, no event has occurred or information become
known that should have been set forth in an amendment to the Registration
-22-
Statement or a supplement to the Prospectus which has not been so set forth
in such amendment or supplement;
(iii) the representations and warranties of the Company set forth in
Section 6 of this Agreement are true and correct as of the date of this
Agreement and as of the Closing Date or the Option Closing Date, as the
case may be, and the Company has complied in all material respects with all
the agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to such Closing Date or the Option Closing Date,
as the case may be; and
(iv) the Commission has not issued an order preventing or
suspending the use of the Prospectus or any preliminary prospectus filed as
a part of the Registration Statement or any amendment thereto; no stop
order suspending the effectiveness of the Registration Statement has been
issued; and, to the knowledge of the respective officers, no proceedings
for that purpose have been instituted or are pending or contemplated under
the Act.
The delivery of the certificate provided for in this subparagraph shall be
and constitute a representation and warranty of the Company as to the facts
set forth in said certificate.
(l) The Company's common stock shall continue to be listed on
the Nasdaq National Market. The Notes to be sold by the Company at the
Closing Date and the Option Closing Date shall have been duly listed, subject
to notice of issuance, on the Nasdaq SmallCap Market; the Conversion Shares
shall have been duly listed, subject to otice of issuance, on the Nasdaq
National Market.
(m) The Company and each of the other parties to the
[New Credit Agreement] [or: the Existing Credit Agreement Amendments] shall
have entered into the [New Credit Agreement] [or: the Existing Credit Agreement
Amendments]and all conditions precedent to the effectiveness thereof shall
have been satisfied or waived, and the Company shall have provided to each of
the Representatives and counsel to the Representatives copies of all material
closing documents delivered to the parties relating to the [New Credit
Agreement] [or: the Existing Credit Agreement Amendments]. The Representatives
and their counsel shall be satisfied with the form and substance of the
[New Credit Agreement] [or: the Existing Credit Agreement Amendments] in
their sole discretion.
(n) The Underwriters and Irell & ▇▇▇▇▇▇▇ LLP, counsel for the
Underwriters, shall have received on or before the Closing Date or the Option
Closing Date, as the case may be, such further documents, opinions,
certificates and schedules or instruments relating to the business,
corporate, legal and financial affairs of the Company as the Underwriters and
they shall have reasonably requested from the Company.
9. EFFECTIVE DATE OF AGREEMENT, TERMINATION AND DEFAULTS. This
Agreement shall become effective upon, and shall not be deemed delivered
until, the later of (i) execution of this Agreement by or on behalf of all
parties hereto, and (ii) when
-23-
notification of the effectiveness of the Registration Statement has been
released by the Commission.
This Agreement may be terminated at any time prior to the Closing Date
and any exercise of the option to purchase Additional Notes may be canceled
at any time prior to any Option Closing Date by the Underwriters by written
notice to the Company if any of the following has occurred: (i) since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change or development
involving a prospective material adverse change in the condition, financial
or other, of the Company or the earnings, assets, liabilities, prospects,
management or business of the Company, whether or not arising in the ordinary
course of business, that would, in the Representatives' sole judgment, make
it impracticable to market the Notes on the terms and in the manner
contemplated in the Prospectus, (ii) any outbreak or escalation of
hostilities or other national or international calamity or crisis or change
in economic conditions or in the financial markets of the United States that,
in the Representatives' judgment, is material and adverse and would, in the
Representatives' judgment, make it impracticable to market the Notes on the
terms and in the manner contemplated in the Prospectus, (iii) the suspension
or material limitation of trading in securities on the New York Stock
Exchange, Inc., the Nasdaq SmallCap Market or the Nasdaq National Market or
limitation on prices for securities on either such exchange, the Nasdaq
SmallCap Market or the Nasdaq National Market, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, Rule or order of any court or other governmental authority that
in the Representatives' opinion materially and adversely affects, or will
materially and adversely affect, the business or operations of the Company,
(v) the declaration of a banking moratorium by either federal or Oregon,
California, Connecticut or New York state authorities, (vi) the taking of any
action by any Federal, state or local government or agency in respect of its
monetary or fiscal affairs that in the Representatives' opinion has a
material adverse effect on the financial markets in the United States, (vii)
any change in financial markets or in political, economic or financial
conditions which, in the opinion of the Representatives, either renders it
impracticable or inadvisable to proceed with the offering and sale of the
Notes on the terms set forth in the Prospectus or materially adversely
affects the market for the Notes and/or the Company's common stock, or (viii)
any conditions to the Underwriters' obligations under this Agreement shall
not have been fulfilled when and as required by this Agreement.
If on the Closing Date or on any Option Closing Date, as the case may be,
any of the Underwriters shall fail or refuse to purchase the Firm Notes or
Additional Notes, as the case may be, which it has agreed to purchase hereunder
on such date, and the aggregate number of Firm Notes or Additional Notes, as the
case may be, that such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase does not exceed, in the aggregate, 10% of the total
number of Notes that all Underwriters are obligated to purchase on such date,
each non-defaulting Underwriter shall be obligated, in the proportion which the
number of Firm Notes set forth opposite its name in Schedule I hereto bears to
the total number of Firm Notes or Additional Notes, as the case may be, that all
the non-defaulting Underwriters have agreed to purchase, or in such other
proportion as the non-defaulting Underwriters may specify, to purchase the Firm
Notes or Additional Notes, as the case may be, that such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase on such date. If, on
the Closing Date or on the Option Closing Date, as the case may be, any
-24-
of the Underwriters shall fail or refuse to purchase the Firm Notes or
Additional Notes, as the case may be, in an amount that exceeds, in the
aggregate, 10% of the total number of the Notes, and arrangements
satisfactory to the non-defaulting Underwriters and the Company for the
purchase of such Notes are not made within 48 hours after such default, this
Agreement shall terminate without liability on the part of the non-defaulting
Underwriters and the Company, except as otherwise provided in this Section 9.
In any such case that does not result in termination of this Agreement,
either the Representatives or the Company may postpone the Closing Date or
the Option Closing Date, as the case may be, for not longer than seven (7)
days, in order that the required changes, if any, in the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve a
defaulting Underwriter from liability in respect of any default of any such
Underwriter under this Agreement.
The indemnity and contribution provisions and other agreements,
representations and warranties of the Company and the Company's officers and
directors set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and
payment for the Notes, regardless of (i) any investigation, or statement as
to the results thereof, made by or on behalf of any of the Underwriters or by
or on behalf of the Company or the officers or directors of the Company or
any controlling person of the Company, (ii) acceptance of the Notes and
payment therefor hereunder or (iii) termination of this Agreement.
Notwithstanding any termination of this Agreement, the Company shall be
liable for and shall pay all expenses they have agreed to pay pursuant to
Section 5(l).
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of, and shall be binding upon, the Company, the Underwriters,
any indemnified person referred to herein and their respective successors and
assigns, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this Agreement.
The terms "successors and assigns" shall not include a purchaser of any of
the Notes from any of the several Underwriters merely because of such
purchase.
10. EFFECTIVENESS OF REGISTRATION STATEMENT. The Underwriters and the
Company will use their best efforts to cause the Registration Statement to
become effective, if it has not yet become effective, and to prevent the
issuance of any stop order suspending the effectiveness of the Registration
Statement and, if such stop order be issued, to obtain as soon as possible
the lifting thereof.
11. MISCELLANEOUS. All communications hereunder will be in writing
and, if sent to the Underwriters will be mailed, delivered or telegraphed and
confirmed to the Representatives c/o Advest, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: [▇▇▇▇▇▇ ▇▇▇▇▇], with a copy to Irell &
▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.; and if sent to the Company will
be mailed, delivered or telegraphed and confirmed to the Company at the
Company's corporate headquarters with a copy to Stoel Rives LLP, ▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esq.
-25-
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS
OF LAW THEREOF.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the several Underwriters, including the Representatives.
Very truly yours,
▇▇▇▇▇▇▇▇▇▇ INDUSTRIES, INC.
By:
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President and Chief Operating Officer
-26-
The foregoing Underwriting Agreement is hereby confirmed and accepted as
of the date first above written.
ADVEST, INC.
BLACK & COMPANY, INC.
Acting as Representatives of the several Underwriters named in Schedule I.
By: Advest, Inc.
By:
---------------------------------
Name:
Its:
-27-
EXHIBIT A
SUBSIDIARIES
Name of Subsidiary Jurisdiction of Incorporation
------------------ -----------------------------
EXHIBIT B-1
OPINION OF [ ]
AS COUNSEL TO THE INDENTURE TRUSTEE
EXHIBIT B-2
OPINION OF ▇▇▇▇▇ ▇▇▇▇▇ LLP,
AS COUNSEL TO THE COMPANY
EXHIBIT B-3
OPINION OF ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
AS COUNSEL TO THE COMPANY
EXHIBIT B-4
OPINION OF ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
AS UNDERWRITERS' COUNSEL
SCHEDULE I
Aggregate Principal Amount
of Firm
Underwrter Notes to be Purchased
---------- ---------------------
Advest, Inc.. . . . . . . . . . . . . . . . . . . . . . [ ]
Black & Company . . . . . . . . . . . . . . . . . . . . [ ]
---------------
TOTAL . . . . . . . . . . . . . . . . . . . . . . . . . $15,000,000
---------------
---------------