EXHIBIT 1.1
1,000,000 SHARES OF COMMON STOCK
PERFICIENT, INC.
UNDERWRITING AGREEMENT
----------------------
New York, New York
July __, 1999
Gilford Securities Incorporated
As Representative of the
Several Underwriters listed on
Schedule A hereto
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Perficient, Inc., a Delaware corporation (the "Company") confirms its
agreement with Gilford Securities Incorporated ("Gilford") and each of the
several underwriters named in Schedule A hereto (collectively, the
"Underwriters", which term shall also include any underwriter substituted as
hereinafter provided in Section 11) for whom Gilford is acting as representative
(in such capacity, Gilford shall hereinafter be referred to as "you" or the
"Representative"), with respect to the sale by the Company and the purchase by
the Underwriters, acting severally and not jointly, of the respective number of
shares of the Company's common stock, $.001 par value per share ("Common
Stock"), set forth on Schedule A hereto. Such shares of Common Stock are
hereinafter referred to as the "Firm Shares."
Upon the Representative's request, as provided in Section 2(b) of this
Agreement, the Company shall also sell to the Underwriters up to an additional
150,000 shares of Common Stock for the purpose of covering over-allotments, if
any (the "Option Shares"). The Firm Shares and the Option Shares are sometimes
hereinafter referred to as the "Shares." The Company also proposes to issue and
sell warrants to the Representative (the "Representative's Warrants") pursuant
to the Representative's Warrant Agreement (the "Representative's Warrant
Agreement") for the purchase of an additional 100,000 shares of Common Stock.
The shares of Common Stock issuable upon exercise of the Representative's
Warrants are hereinafter referred to as the "Representative's Shares." The Firm
Shares, the Option Shares, the Representative's Warrants and the
Representative's Shares (collectively, hereinafter referred to as the
"Securities") are more fully described in the Registration Statement and the
Prospectus referred to below.
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with, each of
the Underwriters as of the date hereof, and as of the Closing Date (hereinafter
defined) and the Option Closing Date (hereinafter defined), if any, as follows:
(i) The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement, and an
amendment or amendments thereto, on Form SB-2 (No. 333-78337),
including any related preliminary prospectus ("Preliminary
Prospectus"), for the registration of the Firm Shares and the
Option Shares under the Securities Act of 1933, as amended (the
"Act"), which registration statement and amendment or amendments
have been prepared by the Company in conformity with the
requirements of the Act, and the rules and regulations (the
"Regulations") of the Commission under the Act. The Company will
promptly file a further amendment to said registration statement in
the form heretofore delivered to the Underwriters and will not,
file any other amendment thereto to which the Underwriters shall
have objected in writing after having been furnished with a copy
thereof. Except as the context may otherwise require, such
registration statement, as amended, on file with the Commission at
the time the registration statement becomes effective (including
the prospectus, financial statements, schedules, exhibits and all
other documents filed as a part thereof or incorporated therein
(including, but not limited to those documents or information
incorporated by reference therein) and all information deemed to be
a part thereof as of such time pursuant to paragraph (b) of Rule
430(A) of the Regulations), is hereinafter called the "Registration
Statement", and the form of prospectus in the form first filed with
the Commission pursuant to Rule 424(b) of the Regulations, is
hereinafter called the "Prospectus." For purposes hereof, "Rules
and Regulations" mean the rules and regulations adopted by the
Commission under either the Act or the Securities Exchange Act of
1934, as amended (the "Exchange Act"), as applicable.
(ii) Neither the Commission nor any state regulatory authority has
issued any order preventing or suspending the use of any
Preliminary Prospectus, the Registration Statement or the
Prospectus or any part of any thereof and no proceedings for a stop
order suspending the effectiveness of the Registration Statement or
any of the Company's securities have been instituted or are pending
or, to the Company's knowledge, threatened. Each of the
Preliminary Prospectus, Registration Statement and Prospectus at
the time of filing thereof conformed with the requirements of the
Act and the Rules and Regulations, and none of the Preliminary
Prospectus, Registration Statement or Prospectus at the time of
filing thereof contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein and
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except
that this representation and warranty does not apply to statements
made in reliance upon and in conformity with written information
furnished to the Company with respect to the Underwriters by or on
behalf of the Underwriters expressly for use in such Preliminary
Prospectus, Registration
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Statement or Prospectus.
(iii) When the Registration Statement becomes effective and at all times
subsequent thereto up to the Closing Date and each Option Closing
Date, if any, and during such longer period as the Prospectus may
be required to be delivered in connection with sales by the
Underwriters or a dealer, the Registration Statement and the
Prospectus will contain all statements which are required to be
stated therein in accordance with the Act and the Rules and
Regulations, and will conform to the requirements of the Act and
the Rules and Regulations; and, at and through such dates, neither
the Registration Statement nor the Prospectus, nor any amendment or
supplement thereto, will contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty does not
apply to statements made or statements omitted in reliance upon and
in conformity with written information furnished to the Company by
or on behalf of any Underwriters expressly for use in the
Preliminary Prospectus, Registration Statement or Prospectus or any
amendment thereof or supplement thereto.
(iv) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the state of its
incorporation. The Company does not own an interest in any
corporation, partnership, trust, joint venture or other business
entity. The Company is duly qualified and licensed and in good
standing as a foreign corporation in each jurisdiction in which its
ownership or leasing of any properties or the character of its
operations requires such qualification or licensing, except where
the failure to be so licensed or qualified would not have a
material adverse effect on the Company. The Company has all
requisite power and authority (corporate and other), and the
Company has obtained any and all necessary authorizations,
approvals, orders, licenses, certificates, franchises and permits
of and from all governmental or regulatory officials and bodies
(including, without limitation, those having jurisdiction over
environmental or similar matters), to own or lease its properties
and conduct its business as conducted on the date hereof and as
described in the Prospectus; the Company is and has been doing
business in compliance with all such authorizations, approvals,
orders, licenses, certificates, franchises and permits and with all
federal, state and local laws, rules and regulations to which it is
subject, except where the failure to be in compliance would not
have a material adverse effect on the Company; and the Company has
not received any notice of proceedings relating to the revocation
or modification of any such authorization, approval, order,
license, certificate, franchise, or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings, position, prospects,
value, operation, properties, business or results of operations of
the Company. The disclosures in the Registration Statement
concerning the effects of federal, state, local and foreign laws,
rles and regulations on the Company's
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business as currently conducted and as contemplated are correct in
all respects and do not omit to state a material fact required to
be stated therein or necessary to make the statement therein in
light of the circumstances under which they were made, not
misleading.
(v) The Company has a duly authorized, issued and outstanding
capitalization as set forth in the Prospectus, under
"Capitalization" and "Description of Securities" and will have the
adjusted capitalization set forth therein on the Closing Date and
the Option Closing Date, if any, based upon the assumptions set
forth therein, and the Company is not a party to or bound by any
instrument, agreement or other arrangement providing for it to
issue any capital stock, rights, warrants, options or other
securities, except for this Agreement, the Representative's Warrant
Agreement and as described in the Prospectus. The Securities and
all other securities issued or issuable by the Company on or prior
to the Closing Date and each Option Closing Date, if any, conform
or, when issued and paid for, will conform, in all respects to all
statements with respect to the descriptions thereof contained in
the Registration Statement and the Prospectus. All issued and
outstanding securities of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; and the
holders thereof have no rights of rescission with respect thereto,
and are not subject to personal liability by reason of being such
holders; and none of such securities were issued in violation of
the preemptive rights of any holders of any security of the Company
or similar contractual rights granted by the Company. The
Securities to be issued and sold by the Company hereunder and
pursuant to the Representative's Warrant Agreement are not and will
not be subject to any preemptive or other similar rights of any
stockholder, have been duly authorized and, when issued, paid for
and delivered in accordance with the terms hereof and thereof, will
be validly issued, fully paid and non-assessable and will conform
to the descriptions thereof contained in the Prospectus; the
holders thereof will not be subject to any liability solely as such
holders; all corporate action required to be taken for the
authorization, issue and sale of the Securities has been duly and
validly taken; and the certificates representing the Securities
will be in due and proper form. Upon the issuance and delivery of
the Securities pursuant to the terms hereof and pursuant to the
Representative's Warrant Agreement, to be sold by the Company
hereunder and thereunder to the Underwriters, the Underwriters will
acquire good and marketable title to such Securities free and clear
of any lien, charge, claim, encumbrance, pledge, security interest,
defect or other restriction or equity of any kind whatsoever.
(vi) The financial statements, including the related notes and schedules
thereto, included in the Registration Statement, each Preliminary
Prospectus and the Prospectus fairly present the financial
position, income, changes in cash flow, changes in stockholders'
equity, and the results of operations of the Company at the
respective dates and for the respective periods to which they apply
and the pro forma financial information included in the
Registration Statement and Prospectus
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presents fairly on a basis consistent with that of the audited
financial statements included therein, what the Company's pro forma
capitalization would have been for the respective periods and as of
the respective dates to which they apply after giving effect to the
adjustments described therein. Such financial statements have been
prepared in conformity with generally accepted accounting
principles and the Rules and Regulations, consistently applied
throughout the periods involved. Except as disclosed in the
Prospectus, there has been no adverse change or development
involving a material prospective change in the condition, financial
or otherwise, or in the earnings, position, prospects, value,
operation, properties, business, or results of operations of the
Company whether or not arising in the ordinary course of business,
since the date of the financial statements included in the
Registration Statement and the Prospectus and the outstanding debt,
the property, both tangible and intangible, and the business of the
Company conform in all material respects to the descriptions
thereof contained in the Registration Statement and the Prospectus.
Financial information set forth in the Prospectus under the
headings "Summary Financial Information," "Selected Financial
Data," "Capitalization," and "Management's Discussion and Analysis
of Financial Condition and Results of Operations," fairly present,
on the basis stated in the Prospectus, the information set forth
therein, and have been derived from or compiled on a basis
consistent with that of the audited financial statements included
in the Prospectus.
(vii) The Company (i) has paid all federal, state, local, and foreign
taxes for which it is liable, including, but not limited to,
withholding taxes and amounts payable under Chapters 21 through 24
of the Internal Revenue Code of 1986 (the "Code"), and has
furnished all information returns it is required to furnish
pursuant to the Code, (ii) has established adequate reserves for
such taxes which are not due and payable, and (iii) does not have
any tax deficiency or claims outstanding, proposed or assessed
against it.
(viii) No transfer tax, stamp duty or other similar tax is payable by or
on behalf of the Underwriters in connection with (i) the issuance
by the Company of the Securities, (ii) the purchase by the
Underwriters of the Securities from the Company, (iii) the
consummation by the Company of any of its obligations under this
Agreement or the Representative's Warrant Agreement, or (iv)
resales of the Securities in connection with the distribution
contemplated hereby.
(ix) The Company maintains insurance policies, including, but not
limited to, general liability and property insurance, which insures
the Company and its employees, against such losses and risks
generally insured against by comparable businesses. The Company
(A) has not failed to give notice or present any insurance claim
with respect to any matter, including but not limited to the
Company's business, property or employees, under the insurance
policy or surety bond in a due and timely manner, (B) does not have
any disputes or claims against any underwriter of such insurance
policies or surety bonds or has not failed to pay any premiums
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due and payable thereunder, or (C) has not failed to comply with
all conditions contained in such insurance policies and surety
bonds. To the Company's knowledge, there are no facts or
circumstances under any such insurance policy or surety bond which
would relieve any insurer of its obligation to satisfy in full any
valid claim of the Company.
(x) There is no action, suit, proceeding, inquiry, arbitration,
investigation, litigation or governmental proceeding (including,
without limitation, those having jurisdiction over environmental or
similar matters), domestic or foreign, pending or, to the Company's
knowledge, threatened against or involving the properties or
business of, the Company which (i) questions the validity of the
capital stock of the Company, this Agreement or the
Representative's Warrant Agreement or of any action taken or to be
taken by the Company pursuant to or in connection with this
Agreement or the Representative's Warrant Agreement, (ii) is
required to be disclosed in the Registration Statement which is not
so disclosed (and such proceedings as are summarized in the
Registration Statement are accurately summarized in all respects),
or (iii) might materially and adversely affect the condition,
financial or otherwise, or the earnings, position, prospects,
stockholders' equity, value, operation, properties, business or
results of operations of the Company.
(xi) The Company has full legal right, power and authority to authorize,
issue, deliver and sell the Securities, enter into this Agreement
and the Representative's Warrant Agreement and to consummate the
transactions provided for in such agreements; and this Agreement
and the Representative's Warrant Agreement have each been duly and
properly authorized, executed and delivered by the Company. Each
of this Agreement and the Representative's Warrant Agreement
constitutes a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms,
except (i) as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or similar laws affecting creditors' rights generally,
(ii) as enforceability of any indemnification or contribution
provisions may be limited under applicable laws or the public
policies underlying such laws and (iii) that the remedies of
specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion
of the court before which any proceedings may be brought. None of
the Company's issue and sale of the Securities, execution or
delivery of this Agreement or the Representative's Warrant
Agreement, its performance hereunder and thereunder, its
consummation of the transactions contemplated herein and therein,
or the conduct of its business as described in the Registration
Statement and the Prospectus, and any amendments or supplements
thereto, conflicts with or will conflict with or results or will
result in any breach or violation of any of the terms or provisions
of, or constitutes or will constitute a default under, or result in
the creation or imposition of any lien, charge, claim, encumbrance,
pledge, security interest, defect or other restriction or equity of
any kind whatsoever upon, any property or assets (tangible
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or intangible) of the Company pursuant to the terms of, (i) the
certificate of incorporation or by-laws of the Company, (ii) any
license, contract, indenture, mortgage, deed of trust, voting trust
agreement, stockholders' agreement, note, loan or credit agreement
or other agreement or instrument evidencing an obligation for
borrowed money, or any other agreement or instrument to which the
Company is a party or by which it is or may be bound or to which
any of its properties or assets (tangible or intangible) is or may
be subject, or any indebtedness, or (iii) any statute, judgment,
decree, order, rule or regulation applicable to the Company of any
arbitrator, court, regulatory body or administrative agency or
other governmental agency or body (including, without limitation,
those having jurisdiction over environmental or similar matters),
domestic or foreign, having jurisdiction over the Company or any of
its activities or properties.
(xii) Except as described in the Prospectus, no consent, approval,
authorization or order of, and no filing with, any court,
regulatory body, government agency or other body, domestic or
foreign, is required for the issuance of the Securities pursuant to
the Prospectus and the Registration Statement, the issuance of the
Representative's Warrants, the performance of this Agreement and
the Representative's Warrant Agreement and the transactions
contemplated hereby and thereby, including without limitation, any
waiver of any preemptive, first refusal or other rights that any
entity or person may have for the issue and/or sale of any of the
Shares, or the Representative's Warrants, except such as have been
or may be obtained under the Act or may be required under state
securities or Blue Sky laws in connection with the Representative's
purchase and distribution of the Shares, and the Representative's
Warrants to be sold by the Company hereunder.
(xiii) All executed agreements, contracts or other documents or copies of
executed agreements, contracts or other documents filed as exhibits
to the Registration Statement to which the Company is a party or by
which it may be bound or to which any of its assets, properties or
business may be subject have been duly and validly authorized,
executed and delivered by the Company, and constitute the legal,
valid and binding agreements of the Company, enforceable against
the Company, in accordance with their respective terms, except (i)
as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or
similar laws affecting creditors' rights generally, (ii) as
enforceability of any indemnification or contribution provisions
may be limited under applicable laws or the public policies
underlying such laws and (iii) that the remedies of specific
performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court
before which any proceedings may be brought. The descriptions in
the Registration Statement of agreements, contracts and other
documents are accurate and fairly present the information required
to be shown with respect thereto by Form SB-2, and there are no
contracts or other
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documents which are required by the Act to be described in the
Registration Statement or filed as exhibits to the Registration
Statement which are not described or filed as required, and the
exhibits which have been filed are complete and correct copies of
the documents of which they purport to be copies.
(xiv) Subsequent to the respective dates as of which information is set
forth in the Registration Statement and Prospectus, and except as
may otherwise be indicated or contemplated herein or therein, the
Company has not (i) issued any securities or incurred any liability
or obligation, direct or contingent, for borrowed money, (ii)
entered into any transaction other than in the ordinary course of
business, or (iii) declared or paid any dividend or made any other
distribution on or in respect of its capital stock of any class,
and there has not been any change in the capital stock, or any
material change in the debt (long or short term) or liabilities or
material adverse change in or affecting the general affairs,
management, financial operations, stockholders' equity or results
of operations of the Company.
(xv) No default exists in the due performance and observance of any
term, covenant or condition of any license, contract, indenture,
mortgage, installment sale agreement, lease, deed of trust, voting
trust agreement, stockholders agreement, partnership agreement,
note, loan or credit agreement, purchase order, or any other
agreement or instrument evidencing an obligation for borrowed
money, or any other material agreement or instrument to which the
Company is a party or by which the Company may be bound or to which
the property or assets (tangible or intangible) of the Company is
or may be subject or affected.
(xvi) The Company has generally enjoyed a satisfactory employer-employee
relationship with its employees and is in compliance with all
federal, state, local, and foreign laws and regulations respecting
employment and employment practices, terms and conditions of
employment and wages and hours, except where the failure to be in
compliance would not have a material adverse effect on the Company.
To the Company's knowledge, there are no pending investigations
involving the Company by the U.S. Department of Labor, or any
other governmental agency responsible for the enforcement of such
federal, state, local, or foreign laws and regulations. There is
no unfair labor practice charge or complaint against the Company
pending before the National Labor Relations Board or any strike,
picketing, boycott, dispute, slowdown or stoppage pending or, to
the Company's knowledge, threatened against or involving the
Company or any predecessor entity, and none has ever occurred. No
representation question exists respecting the employees of the
Company, and no collective bargaining agreement or modification
thereof is currently being negotiated by the Company. No grievance
or arbitration proceeding is pending under any expired or existing
collective bargaining agreements of the Company. No labor dispute
with the employees of the Company exists, or, to the Company's
knowledge, is imminent.
(xvii) Except as described in the Prospectus, the Company does not
maintain, sponsor or
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contribute to any program or arrangement that is an "employee
pension benefit plan," an "employee welfare benefit plan," or a
"multiemployer plan" as such terms are defined in Sections 3(2),
3(1) and 3(37), respectively, of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") ("ERISA Plans"). The
Company does not maintain or contribute, now or at any time
previously, to a defined benefit plan, as defined in Section 3(35)
of ERISA. No ERISA Plan (or any trust created thereunder) has
engaged in a "prohibited transaction" within the meaning of Section
406 of ERISA or Section 4975 of the Code, which could subject the
Company to any tax penalty on prohibited transactions and which has
not adequately been corrected. Each ERISA Plan is in compliance,
in all material respects, with all reporting, disclosure and other
requirements of the Code and ERISA as they relate to any such ERISA
Plan. Determination letters have been received from the Internal
Revenue Service with respect to each ERISA Plan which is intended
to comply with Code Section 401(a), stating that such ERISA Plan
and the attendant trust are qualified thereunder. The Company has
never completely or partially withdrawn from a "multiemployer
plan."
(xviii) Neither the Company nor any of its employees, directors,
stockholders, partners, or affiliates (within the meaning of the
Rules and Regulations) of any of the foregoing has taken or will
take, directly or indirectly, any action designed to or which has
constituted or which might 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 Securities or otherwise.
(xix) Except as otherwise disclosed in the Prospectus, none of the
trademarks, service marks, service names, trade names and
copyrights and none of the licenses and rights to the foregoing
presently owned or held by the Company are in dispute or are in any
conflict with the right of any other person or entity. The Company
(i) owns or has the right to use, free and clear of all liens,
charges, claims, encumbrances, pledges, security interests, defects
or other restrictions or equities of any kind whatsoever, all
trademarks, service marks, service names, trade names and
copyrights, technology and licenses and rights with respect to the
foregoing, used in the conduct of its business as now conducted or
proposed to be conducted without infringing upon or otherwise
acting adversely to the right or claimed right of any person,
corporation or other entity under or with respect to any of the
foregoing and (ii) is not obligated or under any liability
whatsoever to make any payment by way of royalties, fees or
otherwise to any owner or licensee of, or other claimant to,
trademark, service ▇▇▇▇, service names, trade name, copyright,
know-how, technology or other intangible asset, with respect to the
use thereof or in connection with the conduct of its business or
otherwise. There is no action, suit, proceeding, inquiry,
arbitration, investigation, litigation or governmental or other
proceeding, domestic or foreign, pending or threatened (or
circumstances that may give rise to the same) against the Company
which
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challenges the exclusive rights of the Company with respect to any
trademarks, trade names, service marks, service names, copyrights,
or licenses or rights to the foregoing used in the conduct of its
business, or which challenge the right of the Company to use any
technology presently used or contemplated to be used in the conduct
of its business.
(xx) The Company owns and has the unrestricted right to use all trade
secrets, know-how (including all other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), inventions, technology, designs, processes, works of
authorship, computer programs and technical data and information
(collectively herein "intellectual property") that are material to
the development, manufacture, operation and sale of all products
and services sold or proposed to be sold by the Company, free and
clear of and without violating any right, lien, or claim of others,
including without limitation, former employers of its employees;
provided, however, that the possibility exists that other persons
or entities, completely independently of the Company, or its
employees or agents, could have developed trade secrets or items of
technical information similar or identical to those of the Company.
The Company is not aware of any such development of similar or
identical trade secrets or technical information by others.
(xxi) The Company has good and marketable title to, or valid and
enforceable leasehold estates in, all items of real and personal
property stated in the Prospectus, to be owned or leased by it free
and clear of all liens, charges, claims, encumbrances, pledges,
security interests, defects, or other restrictions or equities of
any kind whatsoever, other than those referred to in the Prospectus
and liens for taxes not yet due and payable.
(xxii) To the Company's knowledge, Ernst & Young LLP ("E&Y") whose report
is filed with the Commission as a part of the Registration
Statement, are independent certified public accountants as required
by the Act and the Rules and Regulations.
(xxiii) The Company has caused to be duly executed and has provided the
Underwriters with true copies of legally binding and enforceable
agreements pursuant to which all of the officers and directors of
the Company, all holders of the Common Stock and holders of
securities exchangeable or exercisable for or convertible into
shares of Common Stock have agreed not to, directly or indirectly,
offer to sell, sell, grant any option for the sale of, assign,
transfer, pledge, hypothecate, distribute or otherwise encumber or
dispose of any shares of Common Stock or securities convertible
into, exercisable or exchangeable for or evidencing any right to
purchase or subscribe for any shares of Common Stock (either
pursuant to Rule 144 of the Rules and Regulations or otherwise) or
dispose of any beneficial interest therein for a period of not less
than twelve (12) months following the effective date of the
Registration Statement without the prior written consent of the
Representative. During the twelve (12) month period commencing on
the
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effective date of the Registration Statement, the Company shall
not, without the prior written consent of the Representative, sell,
contract or offer to sell, issue, transfer, assign, pledge,
distribute or otherwise dispose of, directly or indirectly, any
shares of Common Stock or any options, rights or warrants with
respect to any shares of Common Stock, except up to 279,666 shares
of Common Stock reserved for grants of options under the Company's
stock option plan as described in the Prospectus. The Company will
cause the Transfer Agent, as defined below, to ▇▇▇▇ an appropriate
legend on the face of stock certificates representing all of such
securities and to place "stop transfer" orders on the Company's
stock ledgers. Notwithstanding the above, the Company may without
the consent of the Underwriter issue securities of the Company to
persons who are not affiliated with the Company in connection with
acquisitions as contemplated by the Prospectus.
(xxiv) Except as described in the Prospectus under "Underwriting," there
are no claims, payments, issuances, arrangements or understandings,
whether oral or written, for services in the nature of a finder's
or origination fee with respect to the sale of the Securities
hereunder or any other arrangements, agreements, understandings,
payments or issuance with respect to the Company or any of its
officers, directors, stockholders, partners, employees or
affiliates that may affect the Underwriters' compensation, as
determined by the National Association of Securities Dealers, Inc.
("NASD").
(xxv) The Common Stock has been approved for quotation on the NASDAQ
Small Cap Market ("NASDAQ") and the Boston Stock Exchange.
(xxvi) Neither the Company nor, to the Company's knowledge, any of its
officers, employees, agents, or any other person acting on behalf
of the Company, has, directly or indirectly, given or agreed to
give any money, gift or similar benefit (other than legal price
concessions to customers in the ordinary course of business) to any
customer, supplier, employee or agent of a customer or supplier, or
official or employee of any governmental agency (domestic or
foreign) or instrumentality of any government (domestic or foreign)
or any political party or candidate for office (domestic or
foreign) or other person who was, is, or may be in a position to
help or hinder the business of the Company (or assist the Company
in connection with any actual or proposed transaction) which (a)
might subject the Company, or any other such person to any damage
or penalty in any civil, criminal or governmental litigation or
proceeding (domestic or foreign), (b) if not given in the past,
might have had a materially adverse effect on the assets, business
or operations of the Company, or (c) if not continued in the
future, might adversely affect the assets, business, operations or
prospects of the Company. The Company's internal accounting
controls are sufficient to cause the Company to comply with the
Foreign Corrupt Practices Act of 1977, as amended.
(xxvii) Except as set forth in the Prospectus, to the Company's knowledge,
no officer, director or stockholder of the Company, or any
"affiliate" or "associate" (as these
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terms are defined in Rule 405 promulgated under the Rules and
Regulations) of any of the foregoing persons or entities has,
either directly or indirectly, (i) an interest in any person or
entity which (A) furnishes or sells services or products which are
furnished or sold or are proposed to be furnished or sold by the
Company, or (B) purchases from or sells or furnishes to the Company
any goods or services, or (ii) a beneficial interest in any
contract or agreement to which the Company is a party or by which
it may be bound or affected. Except as set forth in the Prospectus
under "Certain Transactions," there are no existing agreements,
arrangements, understandings or transactions, or proposed
agreements, arrangements, understandings or transactions, between
or among the Company and any officer, director, or Principal
Stockholder (as such term is defined in the Prospectus) of the
Company or any partner, affiliate or associate of any of the
foregoing persons or entities.
(xxviii)Any certificate signed by any officer of the Company, and delivered
to the Underwriters or to Underwriters' Counsel (as defined herein)
shall be deemed a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
(xxix) The minute books of the Company have been made available to the
Underwriters and contain a complete summary of all meetings and
actions of the directors, stockholders, audit committee,
compensation committee and any other committee of the Board of
Directors of the Company, respectively, since the time of its
incorporation, and reflects all transactions referred to in such
minutes accurately in all material respects.
(xxx) Except and to the extent described in the Prospectus, no holders of
any securities of the Company or of any options, warrants or other
convertible or exchangeable securities of the Company have the
right to include any securities issued by the Company in the
Registration Statement or any registration statement to be filed by
the Company or to require the Company to file a registration
statement under the Act and no person or entity holds any
anti-dilution rights with respect to any securities of the Company.
(xxxi) The Company has reviewed its operations and any third parties with
which the Company has a material relationship to evaluate the
extent to which the business or operations of the Company will be
affected by Year 2000 issues. As a result of such review, the
Company represents and warrants that the disclosure in the
Registration Statement relating to Year 2000 issues is accurate and
complies in all material respects with the rules and regulations of
the Act. "Year 2000 issues" as used herein means Year 2000 issues
described in or contemplated by the Commission's Interpretation:
Disclosure of Year 2000 issues and consequences by Public
Companies, Investment Advisers, Investment Companies, and Municipal
Securities Issuers (Release No. 33-7558).
- 12 -
(xxxii)The Company has as of the effective date of the Registration
Statement entered into employment agreements with ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ in the forms filed as Exhibits
10.3, 10.4 and 10.5, respectively to the Registration Statement
[and (ii) purchased term key-man insurance on the life of
[_________] in the amount of $[_________], which policy names the
Company as the sole beneficiary thereof].
2. Purchase, Sale and Delivery of the Securities and Representative's
Warrants.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, and each Underwriter
agrees to purchase from the Company at a price of $____ per share [90% of the
initial public offering price] of Common Stock, that number of Firm Shares set
forth in Schedule A opposite the name of such Underwriter, subject to adjustment
as the Representative in its sole discretion shall make to eliminate any sales
or purchases of fractional shares, plus any additional number of Firm Shares
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 11 hereof.
(b) In addition, on the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
Underwriters to purchase all or any part of an additional 150,000 shares of
Common Stock at a price of $___ per share of Common Stock [90% of the initial
public offering price]. The option granted hereby will expire 45 days after (i)
the date the Registration Statement becomes effective, if the Company has
elected not to rely on Rule 430A under the Rules and Regulations, or (ii) the
date of this Agreement if the Company has elected to rely upon Rule 430A under
the Rules and Regulations, and may be exercised in whole or in part from time to
time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Firm Shares upon notice by
the Representative to the Company setting forth the number of Option Shares as
to which Representative is then exercising the option and the time and date of
payment and delivery for any such Option Shares. Any such time and date of
delivery (an "Option Closing Date") shall be determined by the Representative,
but shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Date, as hereinafter defined,
unless otherwise agreed upon by the Representative and the Company. Nothing
herein contained shall obligate the Underwriters to make any over-allotments.
No Option Shares shall be delivered unless the Firm Shares shall be
simultaneously delivered or shall theretofore have been delivered as herein
provided.
(c) Payment of the purchase price for, and delivery of certificates
for, the Firm Shares shall be made at the offices of Gilford at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, or at such other place as shall be agreed
upon by the Representative and the Company. Such delivery and payment shall be
made at 10:00 a.m. (New York City time) on __________, 1999 or at such other
time and date as shall be agreed upon by the Representative and the Company, but
not less than three (3) nor more than seven (7) full business days after the
effective date of the Registration Statement (such time and date of payment and
delivery being herein called "Closing
- 13 -
Date"). In addition, in the event that any or all of the Option Shares are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Shares shall be made at the above-mentioned
office of the Representative or at such other place as shall be agreed upon by
the Representative and the Company on each Option Closing Date as specified in
the notice from the Representative to the Company. Delivery of the certificates
for the Firm Shares and the Option Shares, if any, shall be made to the
Underwriters against payment by the Underwriters of the purchase price for the
Firm Shares and the Option Shares, if any, to the order of the Company for the
Firm Shares and the Option Shares, if any, by New York Clearing House funds.
Certificates for the Firm Shares and the Option Shares, if any, shall be in
definitive, fully registered form, shall bear no restrictive legends and shall
be in such denominations and registered in such names as the Representative may
request in writing at least two (2) business days prior to the Closing Date or
the relevant Option Closing Date, as the case may be. The certificates for the
Firm Shares and the Option Shares, if any, shall be made available to the
Representative at such office or such other place as the Representative may
designate for inspection, checking and packaging no later than 9:30 a.m. on the
last business day prior to Closing Date or the relevant Option Closing Date, as
the case may be.
(d) On the Closing Date, the Company shall issue and sell to the
Representative, Representative's Warrants at a purchase price of $.0001 per
warrant, which warrants shall entitle the holders thereof to purchase an
aggregate of 100,000 shares of Common Stock. The Representative's Warrants
shall be exercisable for a period of four years commencing one year from the
effective date of the Registration Statement at a price equaling one hundred
forty percent (140%) of the initial public offering price of the shares of
Common Stock. The Representative's Warrant Agreement and form of Warrant
Certificate shall be substantially in the form filed as Exhibit __ to the
Registration Statement. Payment for the Representative's Warrants shall be made
on the Closing Date.
3. Public Offering of the Shares. As soon after the Registration
Statement becomes effective as the Representative deems advisable, the
Underwriters shall make a public offering of the Shares (other than to residents
of or in any jurisdiction in which qualification of the Shares is required and
has not become effective) at the price and upon the other terms set forth in the
prospectus. The Representative may from time to time increase or decrease the
public offering price after distribution of the Shares has been completed to
such extent as the Representative, in its discretion deems advisable. The
Underwriters may enter into one of more agreements as the Underwriters, in each
of their sole discretion, deem advisable with one or more broker-dealers who
shall act as dealers in connection with such public offering.
4. Covenants and Agreements of the Company. The Company covenants and
agrees with each of the Underwriters as follows:
(a) The Company shall use its best efforts to cause the Registration
Statement and any amendments thereto to become effective as promptly as
practicable and will not at any time, whether before or after the effective date
of the Registration Statement, file any amendment to the Registration Statement
or supplement to the Prospectus or file any document under the Act or Exchange
Act before termination of the offering of the Shares by the Underwriters of
which the
- 14 -
Underwriters shall not previously have been advised and furnished with a copy,
or to which the Underwriters shall have objected or which is not in compliance
with the Act, the Exchange Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains knowledge thereof, the
Company will advise the Representative and confirm the notice in writing, (i)
when the Registration Statement, as amended, becomes effective, if the
provisions of Rule 430A promulgated under the Act will be relied upon, when the
Prospectus has been filed in accordance with said Rule 430A and when any
post-effective amendment to the Registration Statement becomes effective, (ii)
of the issuance by the Commission of any stop order or of the initiation, or the
threatening, of any proceeding, suspending the effectiveness of the Registration
Statement or any order preventing or suspending the use of the Preliminary
Prospectus or the Prospectus, or any amendment or supplement thereto, or the
institution of proceedings for that purpose, (iii) of the issuance by the
Commission or by any state securities commission of any proceedings for the
suspension of the qualification of any of the Securities for offering or sale in
any jurisdiction or of the initiation, or the threatening, of any proceeding for
that purpose, (iv) of the receipt of any comments from the Commission, and (v)
of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for additional information.
If the Commission or any state securities commission authority shall enter a
stop order or suspend such qualification at any time, the Company will make
every reasonable effort to obtain promptly the lifting of such order.
(c) The Company shall file the Prospectus (in form and substance
satisfactory to the Underwriters) or transmit the Prospectus by a means
reasonably calculated to result in filing with the Commission pursuant to Rule
424(b)(1) (or, if applicable and if consented to by the Underwriters, pursuant
to Rule 424(b)(4)) not later than the Commission's close of business on the
earlier of (i) the second business day following the execution and delivery of
this Agreement and (ii) the fifteenth business day after the effective date of
the Registration Statement.
(d) The Company will give the Representative notice of its intention to
file or prepare any amendment to the Registration Statement (including any
post-effective amendment) or any amendment or supplement to the Prospectus
(including any revised prospectus which the Company proposes for use by the
Underwriters in connection with the offering of the Securities which differs
from the corresponding prospectus on file at the Commission at the time the
Registration Statement becomes effective, whether or not such revised prospectus
is required to be filed pursuant to Rule 424(b) of the Rules and Regulations),
and will furnish the Underwriters with copies of any such amendment or
supplement a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file any such prospectus to which the Underwriters
or ▇▇▇▇▇▇▇, Del Deo, Dolan, Griffinger & ▇▇▇▇▇▇▇▇▇, P.C. ("Underwriters'
Counsel"), shall object.
(e) The Company shall endeavor in good faith, in cooperation with the
Underwriters, at or prior to the time the Registration Statement becomes
effective, to qualify the Securities for offering and sale under the securities
laws of such jurisdictions as the Underwriters may designate to permit the
continuance of sales and dealings therein for as long as may be necessary
- 15 -
to complete the distribution, and shall make such applications, file such
documents and furnish such information as may be required for such purpose;
provided, however, the Company shall not be required to qualify as a foreign
corporation or file a general or limited consent to service of process in any
such jurisdiction. In each jurisdiction where such qualification shall be
effected, the Company will, unless the Underwriters agree that such action is
not at the time necessary or advisable, use all reasonable efforts to file and
make such statements or reports at such times as are or may reasonably be
required by the laws of such jurisdiction to continue such qualification.
(f) During the time when a prospectus is required to be delivered under
the Act, the Company shall use all reasonable efforts to comply with all
requirements imposed upon it by the Act and the Exchange Act, as now and
hereafter amended and by the Rules and Regulations, as from time to time in
force, so far as necessary to permit the continuance of sales of or dealings in
the Securities in accordance with the provisions hereof and the Prospectus, or
any amendments or supplements thereto. If at any time when a prospectus
relating to the Securities are required to be delivered under the Act, any event
shall have occurred as a result of which, in the opinion of counsel for the
Company or Underwriters' Counsel, the Prospectus, as then amended or
supplemented, includes an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Act, the Company will notify the Underwriters promptly and
prepare and file with the Commission an appropriate amendment or supplement in
accordance with Section 10 of the Act, each such amendment or supplement to be
satisfactory to Underwriters' Counsel, and the Company will furnish to the
Underwriters copies of such amendment or supplement as soon as available and in
such quantities as the Underwriters may reasonably request.
(g) As soon as practicable, but in any event not later than 45 days
after the end of the 12-month period beginning on the day after the end of the
fiscal quarter of the Company during which the effective date of the
Registration Statement occurs (90 days in the event that the end of such fiscal
quarter is the end of the Company's fiscal year), the Company shall make
generally available to its security holders, in the manner specified in Rule
158(b) of the Rules and Regulations, and to the Underwriters, an earnings
statement which will be in the detail required by, and will otherwise comply
with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules
and Regulations, which statement need not be audited unless required by the Act,
covering a period of at least 12 consecutive months after the effective date of
the Registration Statement.
(h) During a period of five years after the date hereof, the Company
will furnish to its stockholders, as soon as practicable, annual reports
(including financial statements audited by independent public accountants) and
unaudited quarterly reports of earnings, and will deliver to the Underwriters:
(i) concurrently with furnishing such quarterly reports to its
stockholders, statements of income of the Company for each quarter
in the form furnished to the
- 16 -
Company's stockholders and certified by the Company's principal
financial or accounting officer;
(ii) concurrently with furnishing such annual reports to its
stockholders, a balance sheet of the Company as at the end of the
preceding fiscal year, together with statements of operations,
stockholders' equity, and cash flows of the Company for such fiscal
year, accompanied by a copy of the certificate thereon of
independent certified public accountants;
(iii) as soon as they are available, copies of all reports (financial or
other) mailed to stockholders;
(iv) as soon as they are available, copies of all reports and financial
statements furnished to or filed with the Commission, the NASD or
any securities exchange;
(v) every press release and every material news item or article of
interest to the financial community in respect of the Company, or
its affairs which was released or prepared by or on behalf of the
Company; and
(vi) any additional information of a public nature concerning the
Company (and any future subsidiary) or its businesses which the
Underwriters may reasonably request.
(vii) During such five-year period, if the Company has an active
subsidiary, the foregoing financial statements will be on a
consolidated basis to the extent that the accounts of the Company
and its subsidiary are consolidated, and will be accompanied by
similar financial statements for any significant subsidiary which
is not so consolidated.
(i) The Company will maintain a Transfer Agent and, if necessary under
the jurisdiction of incorporation of the Company, a Registrar (which may be the
same entity as the Transfer Agent) for its Common Stock.
(j) The Company will furnish to the Underwriters or on Underwriters'
order, without charge, at such place as the Underwriters may designate, copies
of each Preliminary Prospectus, the Registration Statement and any pre-effective
or post-effective amendments thereto (two of which copies will be signed and
will include all financial statements and exhibits), the Prospectus, and all
amendments and supplements thereto, including any prospectus prepared after the
effective date of the Registration Statement, in each case as soon as available
and in such quantities as the Underwriters may request.
(k) On or before the effective date of the Registration Statement, the
Company shall provide the Underwriters with true copies of duly executed,
legally binding and enforceable agreements pursuant to which for a period of
twelve (12) months from the effective date of the Registration Statement, the
officers and directors of the Company, holders of all shares of Common Stock and
holders of securities exchangeable or exercisable for or convertible into
- 17 -
shares of Common Stock, agree that it or he or she will not directly or
indirectly, issue, offer to sell, sell, grant an option for the sale of, assign,
transfer, pledge, hypothecate, distribute or otherwise encumber or dispose of
any shares of Common Stock or securities convertible into, exercisable or
exchangeable for or evidencing any right to purchase or subscribe for any shares
of Common Stock (either pursuant to Rule 144 of the Rules and Regulations or
otherwise) or dispose of any beneficial interest therein without the prior
written consent of the Underwriters and the Company (collectively, the "Lock-up
Agreements"). On or before the Closing Date, the Company shall deliver
instructions to the Transfer Agent authorizing it to place appropriate legends
on the certificates representing the securities subject to the Lock-up
Agreements and to place appropriate stop transfer orders on the Company's
ledgers. During the twelve (12) month period commencing on the effective date
of the Registration Statement, and except as contemplated by this Agreement, the
Company will not, without the prior written consent of the Underwriters, (i)
sell, contract or offer to sell, issue, transfer, assign, pledge, hypothecate,
distribute, or otherwise dispose of, directly or indirectly, any shares of
Common Stock or any options, rights or warrants with respect to any shares of
Common Stock, except (a) pursuant to warrants issued to a bank outstanding as of
the date hereof, (b) up to an aggregate of 700,000 shares of Common Stock and
options therefor which may be granted after the date hereof or which are
currently outstanding, provided, however, that such options granted after the
date hereof shall have an exercise price which is at least equal to the closing
price of the Common Stock on the Nasdaq SmallCap Market on the date of grant and
(c) in connection with acquisitions approved by the Board of Directors of the
Company and as contemplated by the Prospectus or (ii) file any registration
statement for the offer or sale by the Company or any other person or entity
securities issued or to be issued by the Company or any present or future
subsidiaries.
(l) Neither the Company, nor any of its officers, directors,
stockholders, nor any of their respective affiliates (within the meaning of the
Regulations) will take, directly or indirectly, any action designed to, or which
might in the future reasonably be expected to cause or result in, stabilization
or manipulation of the price of any securities of the Company.
(m) The Company shall apply the net proceeds from the sale of the
Securities in the manner, and subject to the conditions, set forth under "Use of
Proceeds" in the Prospectus. Except as described in the Prospectus, no portion
of the net proceeds will be used, directly or indirectly, to acquire any
securities issued by the Company.
(n) The Company shall timely file all such reports, forms or other
documents as may be required (including, but not limited to, a Form SR as may be
required pursuant to Rule 463 under the Act) from time to time, under the Act,
the Exchange Act, and the Rules and Regulations, and all such reports, forms and
documents filed will comply as to form and substance with the applicable
requirements under the Act, the Exchange Act, and the Rules and Regulations.
(o) The Company shall furnish to the Underwriters as early as
practicable prior to each of the date hereof, the Closing Date and each Option
Closing Date, if any, but no later than two (2) full business days prior
thereto, a copy of the latest available unaudited interim financial
- 18 -
statements of the Company (which in no event shall be as of a date more than
thirty (30) days prior to the date of the Registration Statement) which have
been read by the Company's independent public accountants, as stated in its
letter to be furnished pursuant to Section 6(j) hereof.
(p) The Company shall cause the Common Stock to be quoted on Nasdaq and
for a period of seven (7) years from the date hereof, use its best efforts to
maintain the Nasdaq quotation of the Common Stock to the extent outstanding.
(q) For a period of five (5) years from the Closing Date, the Company
shall furnish to the Underwriters at the Representative's request and at the
Company's sole expense, (i) daily consolidated transfer sheets relating to the
Common Stock, (ii) the list of holders of all of the Company's securities, and
(iii) a "Blue Sky Trading Survey" for secondary sales of the Company's
securities prepared by counsel to the Company.
(r) For a period of five (5) years from the Closing Date, the Company
shall, at the Company's sole expense, (i) promptly provide the Underwriter, upon
any and all requests of the Underwriter, with a "Blue Sky Trading Survey" for
secondary sales of the Company's securities, prepared by counsel to the Company,
and (ii) take all necessary and appropriate actions to further qualify the
Company's securities in all jurisdictions of the United States in order to
permit secondary sales of such securities pursuant to the "blue sky" laws of
those jurisdictions, provided that such jurisdictions do not require the Company
to qualify as a foreign corporation.
(s) As soon as practicable, (i) but in no event more than 20 business
days before the effective date of the Registration Statement, file a Form 8-A
with the Commission providing for the registration under the Exchange Act of the
Securities and (ii) but in no event more than 60 days after the effective date
of the Registration Statement, take all reasonable actions to be included in
Standard and Poor's Corporation Descriptions and ▇▇▇▇▇'▇ OTC Manual and to
continue such inclusion for a period of not less than one year.
(t) The Company hereby agrees that it will not for a period of twelve
(12) months from the effective date of the Registration Statement, (i) adopt,
propose to adopt or otherwise permit to exist any employee, officer, director,
consultant or compensation plan or arrangement permitting the grant, issue or
sale of any shares of Common Stock or other securities of the Company, (ii) in
an amount greater than an aggregate of [_________] shares of Common Stock, (iii)
at an exercise or sale price per share less than the greater of (a) the initial
public offering price of the Shares set forth herein and (b) the fair market
value of the Common Stock on the date of grant or sale, (iv) to any direct or
indirect beneficial holder on the date hereof of more than 5% of the issued and
outstanding shares of Common Stock, (v) with the payment for such securities
with any form of consideration other than cash, (vi) upon payment of less than
the full purchase or exercise price for such shares of Common Stock or other
securities of the Company on the date of grant or issuance, or (vii) permitting
the existence of stock appreciation rights, phantom options or similar
arrangements.
(u) Until 30 days after the date hereof, the Company shall not without
the prior written consent of the Representative, issue, directly or indirectly,
any press release or other
- 19 -
communication or hold any press conference with respect to the Company or its
activities or the offering contemplated hereby.
(v) For a period equal to the lesser of (i) five (5) years from the
date hereof, and (ii) the sale to the public of the Underwriters' Shares, the
Company will not take any action or actions which may prevent or disqualify the
Company's use of Form ▇▇-▇, ▇-▇ or S-1 (or other appropriate form) for the
registration under the Act of the Underwriter's Shares.
(w) For a period of three (3) years after the effective date of the
Registration Statement, the Underwriters shall have the right to designate for
election one (1) individual to the Company's Board of Directors (the "Board").
In the event the Representative elects not to exercise such right, then it may
designate one (1) individual to attend meetings of the Company's Board. The
Company shall notify the Representative of each meeting of the Board and the
Company shall send to such individual all notices and other correspondence and
communications sent by the Company to members of the Board. Such individual
shall be reimbursed for all out-of-pocket expenses incurred in connection with
his attendance of meetings of the Board.
(x) For a period of twenty-four (24) months after the effective date of
the Registration Statement, the Company shall not restate, amend or alter any
term of any written employment, consulting or similar agreement entered into
between the Company and any officer, director or key employee as of the
effective date of the Registration Statement in a manner which is more favorable
to such officer, director or key employee, without the prior written consent of
the Underwriters.
(y) For a period of twelve (12) months after the effective date of the
Registration Statement, the Underwriters shall have a right of first refusal for
all sales of securities made by the Company or any of its present or future
affiliates or subsidiaries.
5. PAYMENT OF EXPENSES.
(a) The Company hereby agrees to pay on each of the Closing Date and
the Option Closing Date (to the extent not paid at the Closing Date) all
expenses and fees (other than fees of Underwriters' Counsel, except as provided
in (iv) below) incident to the performance of the obligations of the Company
under this Agreement and the Representative's Warrant Agreement, including,
without limitation, (i) the fees and expenses of accountants and counsel for the
Company, (ii) all costs and expenses incurred in connection with the
preparation, duplication, printing, (including mailing and handling charges)
filing, delivery and mailing (including the payment of postage with respect
thereto) of the Registration Statement and the Prospectus and any amendments and
supplements thereto and the printing, mailing (including the payment of postage
with respect thereto) and delivery of this Agreement, the Agreement Among
Underwriters, the Selected Dealer Agreements, and related documents, including
the cost of all copies thereof and of the Preliminary Prospectuses and of the
Prospectus and any amendments thereof or supplements thereto supplied to the
Underwriters and such dealers as the Underwriters may request, in quantities as
hereinabove stated, (iii) the printing, engraving, issuance and delivery of the
Securities including, but not limited to, (x) the purchase by the Underwriters
of the Shares and the purchase by the Representative of the Representative's
Warrants from the
- 20 -
Company, (y) the consummation by the Company of any of its obligations under
this Agreement and the Representative's Warrant Agreement, and (z) resale of the
Shares by the Underwriters in connection with the distribution contemplated
hereby, (iv) the qualification of the Securities under state or foreign
securities or "Blue Sky" laws and determination of the status of such securities
under legal investment laws, including the costs of printing and mailing the
"Preliminary Blue Sky Memorandum," the "Supplemental Blue Sky Memorandum" and
"Legal Investments Survey," if any, and disbursements and fees of counsel in
connection therewith, (subject to an aggregate limit of $50,000), (v)
advertising costs and expenses, including but not limited to costs and expenses
in connection with the "road show", information meetings and presentations,
bound volumes and prospectus memorabilia and "tomb-stone" advertisement
expenses, (vi) fees of any independent counsel or consultant retained, (vii)
fees and expenses of the transfer agent and registrar, (viii) applications for
assignments of a rating of the Securities by qualified rating agencies, (ix) the
fees payable to the Commission and the NASD, and (x) the fees and expenses
incurred in connection with the quotation of the Securities on Nasdaq and any
other exchange.
(b) If this Agreement is terminated by the Underwriters in accordance
with the provisions of Section 6 or Section 10, the Company shall reimburse and
indemnify the Underwriters for all of its actual out-of-pocket expenses,
including the fees and disbursements of Underwriters' Counsel, less any amounts
already paid pursuant to Section 5(c) hereof.
(c) The Company further agrees that, in addition to the expenses
payable pursuant to subsection (a) of this Section 5, it will pay to the
Representative on the Closing Date by certified or bank cashier's check or, at
the election of the Representative, by deduction from the proceeds of the
offering contemplated herein a non-accountable expense allowance equal to three
percent (3%) of the gross proceeds received by the Company from the sale of the
Firm Shares, $25,000 of which has been paid to date. In the event the
Representative elects to exercise the over-allotment option described in Section
2(b) hereof, the Company agrees to pay to the Representative on the Option
Closing Date (by certified or bank cashier's check or, at the Representative's
election, by deduction from the proceeds of the Option Shares) a non-accountable
expense allowance equal to two percent (3%) of the gross proceeds received by
the Company from the sale of the Option Shares.
6. Conditions of the Underwriters' Obligations. The obligations of
the Underwriters hereunder shall be subject to the continuing accuracy in all
material respects of the representations and warranties of the Company herein as
of the date hereof and as of the Closing Date and each Option Closing Date, if
any, with respect to the Company as if it had been made on and as of the Closing
Date or each Option Closing Date, as the case may be; the accuracy in all
material respects on and as of the Closing Date or Option Closing Date, if any,
of the statements of the officers of the Company made pursuant to the provisions
hereof; and the performance by the Company on and as of the Closing Date and
each Option Closing Date, if any, of its covenants and obligations hereunder and
to the following further conditions:
(a) The Registration Statement shall have become effective not later
than 12:00 Noon, New York time, on the date of this Agreement or such later date
and time as shall be
- 21 -
consented to in writing by the Underwriters, and, at the Closing Date and each
Option Closing Date, if any, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or shall be pending or contemplated by the
Commission and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
Underwriters' Counsel. If the Company has elected to rely upon Rule 430A of the
Rules and Regulations, the price of the Shares and any price-related information
previously omitted from the effective Registration Statement pursuant to such
Rule 430A shall have been transmitted to the Commission for filing pursuant to
Rule 424(b) of the Rules and Regulations within the prescribed time period, and
prior to Closing Date the Company shall have provided evidence satisfactory to
the Underwriters of such timely filing, or a post-effective amendment providing
such information shall have been promptly filed and declared effective in
accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) Neither the Prospectus, any supplement thereto, nor the
Registration Statement, nor any amendments thereto, shall contain an untrue
statement of fact which, in the Underwriters' opinion, is material, or omit to
state a fact which, in the Underwriters' opinion, is material and is required to
be stated therein or is necessary to make the statements therein not misleading
in light of the circumstances under which they were made.
(c) On or prior to the Closing Date, the Underwriters shall have
received from Underwriters' Counsel, such opinion or opinions with respect to
the organization of the Company, the validity of the Securities, the
Representative's Warrants, the Registration Statement, the Prospectus and other
related matters as the Underwriters may request and Underwriters' Counsel shall
have received such papers and information as they request to enable them to pass
upon such matters.
(d) At Closing Date, the Underwriter shall have received the favorable
opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company, dated the
Closing Date, addressed to the Underwriters and in form and substance
satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company (A) is duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction,
(B) is duly qualified and licensed and in good standing as a
foreign corporation in the State of Texas and (C) has all requisite
corporate power and authority; and the Company has obtained any and
all necessary authorizations, approvals, orders, licenses,
certificates, franchises and permits of and from all governmental
or regulatory officials and bodies (including, without limitation,
those having jurisdiction over environmental or similar matters),
to own or lease its properties and conduct its business as
described in the Prospectus; the Company is and has been doing
business in material compliance with all such authorizations,
approvals, orders, licenses,
- 22 -
certificates, franchises and permits and all federal, state and
local laws, rules and regulations; the Company has not received any
notice of proceedings relating to the revocation or modification of
any such authorization, approval, order, license, certificate,
franchise, or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would
materially adversely affect the business, operations, condition,
financial or otherwise, or the earnings, business affairs,
position, prospects, value, operation, properties, business or
results of operations of the Company. The disclosures in the
Registration Statement concerning the effects of federal, state and
local laws, rules and regulations on the Company's business as
currently conducted and as contemplated are correct in all material
respects and do not omit to state a fact necessary to make the
statements contained therein not misleading in light of the
circumstances in which they were made;
(ii) to such counsel's knowledge, the Company does not own an interest
in any other corporation, partnership, joint venture, trust or
other business entity;
(iii) the authorized, issued and outstanding capital stock of the Company
as of March 31, 1999 was as set forth in the Prospectus, under the
heading "Actual" under the caption "Capitalization". To such
counsel's knowledge, except as described in the Prospectus, the
Company is not a party to or bound by any instrument, agreement or
other arrangement providing for it to issue any capital stock,
rights, warrants, options or other securities, except for this
Agreement, the Representative's Warrant Agreement and as described
in the Prospectus. The Securities, and all other securities issued
or issuable by the Company conform in all material respects to all
statements with respect thereto contained in the Registration
Statement and the Prospectus. All issued and outstanding shares of
capital stock of the Company have been duly authorized and validly
issued and, to such counsel's knowledge, are fully paid and
non-assessable; the holders thereof have no rights of rescission
with respect thereto under the Company's Certificate of
Incorporation, By-laws, Delaware corporate law or any agreement of
which such counsel has knowledge, and are not subject to personal
liability by reason of being such holders; and none of such
securities were issued in violation of the preemptive rights of any
holders of any security of the Company. The Shares, the
Representative's Warrants and the Representative's Shares to be
sold by the Company hereunder and under the Representative's
Warrant Agreement have been duly authorized under the Company's
Certificate of Incorporation, By-laws, Delaware corporate law or
any agreement of which such counsel has knowledge and, when issued,
paid for and delivered in accordance with the terms hereof and the
Representative's Warrant Agreement, will be validly issued, fully
paid and non-assessable and to such counsel's knowledge, are not
and will not be subject to any liability solely as such holders;
all corporate action required to be taken for the authorization,
issue and sale of the Shares, the Representative's Warrants and the
Representative's Shares has been duly and validly taken; preemptive
or other similar rights of any stockholder; and the certificates
representing the Shares and the Representative's Warrants are in
due and proper form. The Representative's Warrants constitute
valid and binding obligations of the Company to issue and sell,
upon exercise thereof and payment therefor, the number and type of
- 23 -
securities of the Company called for thereby. Upon the issuance
and delivery pursuant to this Agreement and the Representative's
Warrant Agreement of the Shares and the Representative's Warrants,
respectively, to be sold by the Company, the Representative and the
Representative, respectively, will acquire good and marketable
title to the Shares and Representative's Warrants free and clear of
any pledge, lien, charge, claim, encumbrance, pledge, security
interest, or other restriction or equity of any kind whatsoever.
No transfer tax is payable by or on behalf of the Underwriters in
connection with (A) the issuance by the Company of the Shares, (B)
the purchase by the Underwriters of the Shares and the
Representative's Warrants, respectively, from the Company, (C) the
consummation by the Company of any of its obligations under this
Agreement or the Representative's Warrant Agreement, or (D) resales
of the Shares in connection with the distribution contemplated
hereby;
(iv) the Registration Statement has become effective under the Act, and,
to our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose has been instituted or is pending, threatened or
contemplated under the Act;
(v) each of the Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the financial
statements and other financial and statistical data included
therein, as to which no opinion need be rendered) comply as to form
in all material respects with the requirements of the Act and the
Rules and Regulations;
(vi) to such counsel's knowledge, (A) there are no agreements, contracts
or other documents required by the Act to be described in the
Registration Statement and the Prospectus and filed as exhibits to
the Registration Statement other than those described in the
Registration Statement (or required to be filed under the Exchange
Act if upon such filing they would be incorporated, in whole or in
part, by reference therein) and the Prospectus and filed as
exhibits thereto, and the exhibits which have been filed are
correct copies of the documents of which they purport to be copies;
(B) the descriptions in the Registration Statement and the
Prospectus and any supplement or amendment thereto of contracts and
other documents to which the Company is a party or by which it is
bound, including any document to which the Company is a party or by
which it is bound, incorporated by reference into the Prospectus
and any supplement or amendment thereto, are accurate in all
material respects and fairly represent the information required to
be shown by Form SB-2; (C) there is not pending or threatened
against the Company any action, arbitration, suit, proceeding,
inquiry, investigation, litigation, governmental or other
proceeding (including, without limitation, those having
jurisdiction over environmental or similar matters), domestic or
foreign, which (x) is required to be disclosed in the Registration
Statement which is not so disclosed (and such proceedings as are
summarized in the Registration Statement are accurately summarized
in all material respects), or (y) questions the validity of
- 24 -
the capital stock of the Company or this Agreement or the
Representative's Warrant Agreement, or of any action taken or to be
taken by the Company pursuant to or in connection with any of the
foregoing; (D) no statute or regulation or legal or governmental
proceeding required to be described in the Prospectus is not
described as required; and (E) there is no action, suit or
proceeding pending, or threatened, against or affecting the Company
before any court or arbitrator or governmental body, agency or
official (or any basis thereof known to such counsel) in which
there is a reasonable possibility of an adverse decision which may
result in a material adverse change in the condition, financial or
otherwise, or the earnings, position, prospects, stockholders'
equity, value, operation, properties, business or results of
operations of the Company, which could adversely affect the present
or prospective ability of the Company to perform its obligations
under this Agreement or the Representative's Warrant Agreement or
which in any manner draws into question the validity or
enforceability of this Agreement or the Representative's Warrant
Agreement;
(vii) the Company has the corporate power and authority to enter into
each of this Agreement and the Representative's Warrant Agreement
and to issue, sell and deliver the Shares and the Representative's
Warrants as provided for herein and therein; and each of this
Agreement and the Representative's Warrant Agreement has been duly
authorized, executed and delivered by the Company. Each of this
Agreement and the Representative's Warrant Agreement, assuming due
authorization, execution and delivery by each other party thereto
constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms
(subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights and remedies generally, and subject, as to
enforceability, to general equitable principles (whether relief is
sought in a proceeding at law or in equity) and except as rights to
indemnification and contribution thereunder may be limited by
applicable law or public policy relating thereto), and none of the
Company's execution or delivery of this Agreement and the
Representative's Warrant Agreement, its performance hereunder or
thereunder, its consummation of the transactions contemplated
herein or therein, or the conduct of its business as described in
the Registration Statement, the Prospectus, and any amendments or
supplements thereto, conflicts with or will conflict with or
results or will result in any breach or violation of any of the
terms or provisions of, or constitutes or will constitute a default
under, or result in the creation or imposition of any lien, charge,
claim, encumbrance, pledge, security interest, defect or other
restriction or equity of any kind whatsoever upon, any property or
assets (tangible or
- 25 -
intangible) of the Company pursuant to the terms of, (A) violates
the certificate of incorporation or by-laws of the Company, (B)
constitutes a breach of, or a default under, any license, contract,
indenture, mortgage, deed of trust, voting trust agreement,
stockholders agreement, note, loan or credit agreement or other
agreement or instrument to which the Company is a party or by which
it is or may be bound or to which any of its respective properties
or assets (tangible or intangible) is or may be subject, or any
indebtedness, or (C) any statute, judgment, decree, order, rule or
regulation applicable to the Company of any arbitrator, court,
regulatory body or administrative agency or other governmental
agency or body (including, without limitation, those having
jurisdiction over environmental or similar matters), domestic or
foreign, having jurisdiction over the Company or any of its
properties;
(viii) except as described in the Prospectus, no consent, approval,
authorization or order of, and no filing with, any court,
regulatory body, government agency or other body (other than such
as (A) have been obtained under the Act and the Exchange Act or (B)
may be required under the state securities or Blue Sky laws, as to
which no opinion need be rendered) is required on the part of the
Company for the valid issuance of the Shares pursuant to this
Agreement or the valid issuance of the Representative's Warrants
pursuant to the Representative's Warrant Agreement;
(ix) to the knowledge of such counsel, the Company is not in breach of,
or in default under, any term or provision of any license,
contract, indenture, mortgage, installment sale agreement, deed of
trust, lease, voting trust agreement, stockholders' agreement,
partnership agreement, note, loan or credit agreement or any other
agreement or instrument evidencing an obligation for borrowed
money, or any other agreement or instrument to which the Company is
a party or by which the Company may be bound or to which the
property or assets (tangible or intangible) of the Company is
subject or affected; and the Company is not in violation of any
term or provision of its certificate of incorporation, by-laws, or
in violation of any franchise, license, permit, judgment, decree,
order, statute, rule or regulation;
(x) the statements in the Prospectus under the caption "DESCRIPTION OF
SECURITIES," insofar as they constitute a fair summary of the legal
matters, statutes, licenses, rules or regulations or legal
conclusions, are correct in all material respects;
(xi) the Shares have been approved for quotation on the Nasdaq SmallCap
Market and the Boston Stock Exchange upon issuance as contemplated
by this Agreement;
(xii) the persons listed under the caption "PRINCIPAL STOCKHOLDERS" in
the Prospectus are the respective "beneficial owners" (as such
phrase is defined in regulation 13d-3 under the Exchange Act) of
the securities set forth opposite their respective names thereunder
as and to the extent set forth therein;
(xiii) except as described in the Prospectus, no person, corporation,
trust, partnership, association or other entity has the right to
include and/or register any securities of the Company in the
Registration Statement, require the Company to file any
- 26 -
registration statement or, if filed, to include any security in
such registration statement;
(xiv) except as described in the Prospectus, there are no claims,
payments, issuances, arrangements or understandings for services in
the nature of a finder's or origination fee with respect to the
sale of the Securities hereunder or financial consulting
arrangement or any other arrangements, agreements, understandings,
payments or issuances that may affect the Underwriters'
compensation, as determined by the NASD;
(xv) assuming due execution by the parties thereto other than the
Company, the Lock-up Agreements are legal, valid and binding
obligations of parties thereto, enforceable against the party and
any subsequent holder of the securities subject thereto in
accordance with its terms (except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application relating to or
affecting enforcement of creditors' rights and the application of
equitable principles in any action, legal or equitable, and except
as rights to indemnity or contribution may be limited by applicable
law); and
(xvi) except as described in the Prospectus, the Company does not (A)
maintain, sponsor or contribute to any ERISA Plans, (B) maintain or
contribute, now or at any time previously, to a defined benefit
plan, as defined in Section 3(35) of ERISA, and (C) has never
completely or partially withdrawn from a "multiemployer plan".
Such counsel shall state that such counsel has participated in conferences
with certain officers and other representatives of the Company and
representatives of the independent public accountants for the Company, the
Representative and the Underwriter's Counsel at which conferences the
Registration Statement, the Prospectus, and related matters were discussed.
Such counsel shall state that such counsel is not, however, passing upon, and
does not assume any responsibility for, and has not independently checked or
verified, the accuracy, completeness or fairness of the information contained in
the Registration Statement and Prospectus. Such counsel shall state that, based
upon such counsel's participation as described above, such counsel confirms that
such counsel has no reason to believe that either the Registration Statement at
the time such Registration Statement became effective or the Prospectus, as of
the date of such opinion contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
opinion with respect to the financial statements and schedules and other
financial and statistical data included inthe Registration Statement or
Prospectus).
Such opinion shall not state that it is to be governed or qualified by, or
that it is otherwise subject to, any treatise, written policy or other document
relating to legal opinions, including, without limitation, the Legal Opinion
Accord of the ABA Section of Business Law (1991), or any comparable State bar
accord.
- 27 -
In rendering such opinion, such counsel may rely as to matters of fact, to
the extent they deem proper, on certificates and written statements of
responsible officers of the Company, and certificates or other written
statements of officers of departments of various jurisdictions having custody of
documents respecting the corporate existence or good standing of the Company,
provided that copies of any such written statements or certificates shall be
delivered to Underwriters' Counsel if requested. The opinion shall also state
that the Underwriters' Counsel is entitled to rely thereon.
The opinion of such counsel for the Company shall state that the opinion of
any such other counsel is in form satisfactory to such counsel and that the
Underwriters and they are justified in relying thereon.
(e) At each Option Closing Date, if any, the Underwriters shall have
received the favorable opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to
the Company, dated the Option Closing Date, addressed to the Underwriters and in
form and substance satisfactory to Underwriters' Counsel confirming as of the
Option Closing Date the statements made by ▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇ LLP and
in their opinion delivered on the Closing Date.
(f) On or prior to each of the Closing Date and the Option Closing
Date, if any, Underwriters' Counsel shall have been furnished such documents,
certificates and opinions as they may reasonably request and require for the
purpose of enabling them to review or pass upon the matters referred to in
subsection (c) of this Section 6, or in order to evidence the accuracy,
completeness or satisfaction of any of the representations, warranties or
conditions of the Company, or herein contained.
(g) Prior to each of the Closing Date and each Option Closing Date, if
any, (i) there shall have been no material adverse change nor development
involving a prospective change in the condition, financial or otherwise,
prospects, stockholders' equity or the business activities of the Company,
whether or not in the ordinary course of business, from the latest dates as of
which such condition is set forth in the Registration Statement and Prospectus;
(ii) there shall have been no transaction, not in the ordinary course of
business, entered into by the Company, from the latest date as of which the
financial condition of the Company is set forth in the Registration Statement
and Prospectus which is materially adverse to the Company; (iii) the Company
shall not be in default under any provision of any instrument relating to any
material outstanding indebtedness; (iv) the Company shall not have issued any
securities (other than the Securities); or securities issued upon exercise of
stock option or bank warrants); the Company shall not have declared or paid any
dividend or made any distribution in respect of its capital stock of any class;
and there shall not not have been any change in the capital stock of the
Company, or any material change in the debt (long or short term) or liabilities
or obligations of the Company (contingent or otherwise); (v) no material amount
of the assets of the Company shall have been pledged or mortgaged, except as set
forth in the Registration Statement and Prospectus; (vi) no action, suit or
proceeding, at law or in equity, shall have been pending or threatened (or
circumstances giving rise to same) against the Company, or affecting any of its
properties or business before or by any
- 28 -
court or federal, state or foreign commission, board or other administrative
agency wherein an unfavorable decision, ruling or finding may adversely affect
the business, operations, prospects or financial condition or income of the
Company, except as set forth in the Registration Statement and Prospectus; and
(vii) no stop order shall have been issued under the Act and no proceedings
therefor shall have been initiated, threatened or contemplated by the
Commission.
(h) At each of the Closing Date and each Option Closing Date, if any,
the Underwriters shall have received a certificate of the Company signed by the
principal executive officer and by the chief financial or chief accounting
officer of the Company, dated the Closing Date or Option Closing Date, as the
case may be, to the effect that each of such persons has carefully examined the
Registration Statement, the Prospectus and this Agreement, and that:
(i) The representations and warranties of the Company in this Agreement
are true and correct, as if made on and as of the Closing Date or
the Option Closing Date, as the case may be, and the Company has
complied with all agreements and covenants and satisfied all
conditions contained in this Agreement on its part to be performed
or satisfied at or prior to such Closing Date or Option Closing
Date, as the case may be;
(ii) No stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued, and no proceedings
for that purpose have been instituted or are pending or, to the
best of each of such person's knowledge, after due inquiry are
contemplated or threatened under the Act;
(iii) The Registration Statement and the Prospectus and, if any, each
amendment and each supplement thereto, contain all statements and
information required to be included therein, and none of the
Registration Statement, the Prospectus nor any amendment or
supplement thereto includes any untrue statement of a material fact
or omits to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and
neither the Preliminary Prospectus or any supplement thereto
included any untrue statement of a material fact or omitted to
state any 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; and
(iv) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, (a) the Company
has not incurred up to and including the Closing Date or the Option
Closing Date, as the case may be, other than in the ordinary course
of its business, any material liabilities or obligations, direct or
contingent; (b) the Company has not paid or declared any dividends
or other distributions on its capital stock; (c) the Company has
not entered into any transactions not in the ordinary course of
business; (d) there has not been any change in the capital stock of
the Company or any material change in the debt (long or short-term)
of the Company; (e) the Company has not
- 29 -
sustained any material loss or damage to its property or assets,
whether or not insured; (f) there is no litigation which is pending
or threatened (or circumstances giving rise to same) against the
Company, or any affiliated party of any of the foregoing which is
required to be set forth in an amended or supplemented Prospectus
which has not been set forth; and (g) there has occurred no event
required to be set forth in an amended or supplemented Prospectus
which has not been set forth.
References to the Registration Statement and the Prospectus in this subsection
(h) are to such documents as amended and supplemented at the date of such
certificate.
(i) By the Closing Date, the Underwriters will have received clearance
from the NASD as to the amount of compensation allowable or payable to the
Underwriters, as described in the Registration Statement.
(j) At the time this Agreement is executed, the Underwriters shall have
received a letter, dated such date, addressed to the Underwriters in form and
substance satisfactory (including the non-material nature of the changes or
decreases, if any, referred to in clause (iii) below) in all respects to the
Underwriters and Underwriters' Counsel, from E&Y;
(i) confirming that they are independent certified public accountants
with respect to the Company within the meaning of the Act and the
applicable Rules and Regulations;
(ii) stating that it is their opinion that the financial statements and
supporting schedules of the Company included in the Registration
Statement comply as to form in all material
- 30 -
respects with the applicable accounting requirements of the Act and
the Rules and Regulations thereunder and that the Underwriters may
rely upon the opinion of E&Y with respect to such financial
statements and supporting schedules included in the Registration
Statement;
(iii) stating that, on the basis of a limited review which included a
reading of the latest available unaudited interim financial
statements of the Company, a reading of the latest available
minutes of the stockholders and board of directors and the various
committees of the boards of directors of the Company, consultations
with officers and other employees of the Company responsible for
financial and accounting matters and other specified procedures and
inquiries, nothing has come to their attention which would lead
them to believe that (A) the pro forma financial information
contained in the Registration Statement and Prospectus does not
comply as to form in all material respects with the applicable
accounting requirements of the Act and the Rules and Regulations or
is not fairly presented in conformity with generally accepted
accounting principles applied on a basis consistent with that of
the audited financial statements of the Company or the unaudited
pro forma financial information included in the Registration
Statement, (B) the unaudited financial statements and supporting
schedules of the Company included in the Registration Statement do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the Rules and Regulations or
are not fairly presented in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements of the Company
included in the Registration Statement, or (C) at a specified date
not more than five (5) days prior to the effective date of the
Registration Statement, there has been any change in the capital
stock of the Company, any change in the long-term debt of the
Company, or any decrease in the stockholders' equity of the Company
or any decrease in the net current assets or net assets of the
Company as compared with amounts shown in the _____, 1999 balance
sheets included in the Registration Statement, other than as set
forth in or contemplated by the Registration Statement, or, if
there was any change or decrease, setting forth the amount of such
change or decrease, and (D) during the period from ______, 1999 to
a specified date not more than five (5) days prior to the effective
date of the Registration Statement, there was any decrease in net
revenues or net earnings of the Company or increase in net earnings
per common share of the Company, in each case as compared with the
corresponding period beginning _____, 1998 other than as set forth
in or contemplated by the Registration Statement, or, if there was
any such decrease, setting forth the amount of such decrease;
(iv) setting forth, at a date not later than five (5) days prior to the
date of the Registration Statement, the amount of liabilities of
the Company (including a break-down of commercial paper and notes
payable to banks);
(v) stating that they have compared specific dollar amounts, numbers of
shares, percentages of revenues and earnings, statements and other
financial information pertaining to the Company set forth in the
Prospectus in each case to the extent that such amounts, numbers,
percentages, statements and information may be derived from the
general accounting records, including work sheets, of the Company
and excluding any questions requiring an interpretation by legal
counsel, with the results obtained from the application of
specified readings, inquiries and other appropriate procedures
(which procedures do not constitute an examination in accordance
with generally accepted auditing standards) set forth in the letter
and found them to be in agreement; and
(vi) statements as to such other matters incident to the transaction
contemplated hereby as the Underwriters may request.
(k) At the Closing Date and each Option Closing Date, if any, the
Underwriters shall have received from E&Y a letter, dated as of the Closing Date
or the Option Closing Date, as the case may be, to the effect that they reaffirm
the statements made in the letter furnished pursuant to subsection (j) of this
Section hereof except that the specified date referred to shall be a date not
more than five days prior to the Closing Date or the Option Closing Date, as the
case may be, and, if the Company has elected to rely on Rule 430A of the Rules
and Regulations, to the further effect that they have carried out procedures as
specified in clause (v) of subsection (j) of
- 31 -
this Section with respect to certain amounts, percentages and financial
information as specified by the Underwriters and deemed to be a part of the
Registration Statement pursuant to Rule 430A(b) and have found such amounts,
percentages and financial information to be in agreement with the records
specified in such clause (v).
(l) The Company shall have delivered to the Underwriters a letter from
E&Y addressed to the Company stating that they have not during the immediately
preceding two year period brought to the attention of the Company's management
any "weakness" as defined in Statement of Auditing Standards No. 60
"Communication of Internal Control Structure Related Matters Noted in an Audit,"
in any of the Company's internal controls.
(m) On each of the Closing Date and Option Closing Date, if any, there
shall be duly tendered to the Underwriters for the several Underwriters'
accounts the appropriate number of Securities.
(n) No order suspending the sale of the Securities in any jurisdiction
designated by the Underwriters pursuant to subsection (e) of Section 4 hereof
shall have been issued on either the Closing Date or the Option Closing Date, if
any, and no proceedings for that purpose shall have been instituted or shall be
contemplated.
(o) On or before the Closing Date, the Company shall have executed and
delivered to the Underwriters, (i) the Representative's Warrant Agreement
substantially in the form filed as Exhibit __ to the Registration Statement and
(ii) the Representative's Warrants in such denominations and to such designees
as shall have been provided to the Company.
(p) On or before the Closing Date, the Shares shall have been duly
approved for quotation on the Nasdaq, subject to official notice of issuance.
(q) On or before the Closing Date, there shall have been delivered to
the Underwriters all of the Lock-up Agreements, in form and substance
satisfactory to Representative's Counsel.
If any condition to the Underwriters' obligations hereunder to be fulfilled
prior to or at the Closing Date or the relevant Option Closing Date, as the case
may be, is not so fulfilled, the Underwriters may terminate this Agreement or,
if the Underwriters so elect, it may waive any such conditions which have not
been fulfilled or extend the time for their fulfillment.
7. Indemnification.
(a) The Company, agrees to indemnify and hold harmless each of the
Underwriters (for purposes of this Section 7 "Underwriters" shall include the
officers, directors, partners, employees, agents and counsel of the
Underwriters, including specifically each person who may be substituted for an
Underwriter as provided in Section 11 hereof), and each person, if any, who
controls the Underwriter ("controlling person") within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act, from and against any and all
losses, claims, damages, expenses or liabilities, joint or several (and actions,
proceedings, investigations, inquiries, and suits in respect thereof),
whatsoever (including but not limited to any and all costs and expenses
- 32 -
whatsoever reasonably incurred in investigating, preparing or defending against
such action, proceeding, investigation, inquiry or suit, commenced or
threatened, or any claim whatsoever), as such are incurred, to which the
Underwriter or such controlling person may become subject under the Act, the
Exchange Act or any other statute or at common law or otherwise or under the
laws of foreign countries, arising out of or based upon (A) any untrue statement
or alleged untrue statement of a material fact contained (i) in any Preliminary
Prospectus, the Registration Statement or the Prospectus (as from time to time
amended and supplemented); (ii) in any post-effective amendment or amendments or
any new registration statement and prospectus in which is included securities of
the Company issued or issuable upon exercise of the Securities; or (iii) in any
application or other document or written communication (in this Section 7
collectively called "application") executed by the Company or based upon written
information furnished by the Company filed, delivered or used in any
jurisdiction in order to qualify the Securities under the securities laws
thereof or filed with the Commission, any state securities commission or agency,
Nasdaq or any other securities exchange, (B) the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading (in the case of the Prospectus, in the
light of the circumstances under which they were made), or (C) any breach of any
representation, warranty, covenant or agreement of the Company contained herein
or in any certificate by or on behalf of the Company or any of its officers
delivered pursuant hereto unless, in the case of clause (A) or (B) above, such
statement or omission was made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Underwriters
expressly for use in any Preliminary Prospectus, the Registration Statement or
any Prospectus, or any amendment thereof or supplement thereto, or in any
application, as the case may be. [The foregoing indemnification shall not inure
to the benefit of any Underwriter from whom that person asserting any such
losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person at or prior to the confirmation of the sale of the Shares to such person
and if the Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such losses, claims, damages, expenses or liabilities.]
The indemnity agreement in this subsection (a) shall be in addition to any
liability which the Company may have at common law or otherwise.
(b) Each of the Underwriters agrees severally, but not jointly, to
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the Registration Statement, and each other person, if
any, who controls the Company within the meaning of the Act, to the same extent
as the foregoing indemnity from the Company to the Underwriter but only with
respect to statements or omissions, if any, made in any Preliminary Prospectus,
the Registration Statement or Prospectus or any amendment thereof or supplement
thereto or in any application made in reliance upon, and in strict conformity
with, written information furnished to the Company with respect to any
Underwriter by such Underwriter expressly for use in such preliminary
Prospectus, the Registration Statement or Prospectus or any amendment thereof or
supplement thereto or in any such application, provided that such written
information or omissions only pertain to disclosures in the Preliminary
Prospectus, the Registration Statement
- 33 -
or Prospectus directly relating to the transactions effected by the Underwriters
in connection with this Offering. The Company acknowledges that the statements
with respect to the public offering of the Securities set forth under the
heading "Underwriting" and the stabilization legend in the Prospectus have been
furnished by the Underwriter expressly for use therein and constitute the only
information furnished in writing by or on behalf of the Underwriters for
inclusion in the Prospectus.
The indemnity agreement in this subsection (b) shall be in addition to any
liability which the Underwriters may have at common law or otherwise.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, suit or proceeding, such
indemnified party shall, if a claim in respect thereof is to be made against one
or more indemnifying parties under this Section 7, notify each party against
whom indemnification is to be sought in writing of the commencement thereof (but
the failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7 except to the extent that it
has been prejudiced in any material respect by such failure or from any
liability which it may have otherwise). In case any such action, investigation,
inquiry, suit or proceeding is brought against any indemnified party, and it
notifies an indemnifying party or parties of the commencement thereof, the
indemnifying party or parties will be entitled to participate therein, and to
the extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such case
but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by the indemnifying parties in connection with
the defense of such action at the expense of the indemnifying party, (ii) the
indemnifying parties shall not have employed counsel reasonably satisfactory to
such indemnified party to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to one or all of the indemnifying partie (in which case the
indemnifying parties shall not have the right to direct the defense of such
action, investigation, inquiry, suit or proceeding on behalf of the indemnified
party or parties), in any of which events such fees and expenses of one
additional counsel shall be borne by the indemnifying parties. In no event
shall the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action, investigation,
inquiry, suit or proceeding or separate but similar or related actions,
investigations, inquiries, suits or proceedings in the same jurisdiction arising
out of the same general allegations or circumstances. Anything in this Section
7 to the contrary notwithstanding, an indemnifying party shall not be liable for
any settlement of any claim or action effected without its written consent;
provided, however, that such consent was not unreasonably withheld. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle, compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, investigation, inquiry,
suit or proceeding in respect of which indemnification or contribution may
- 34 -
be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action), unless such settlement, compromise
or consent (i) includes an unconditional release of each indemnified party form
all liability arising out of such claim, action, suit or proceeding and (ii)
does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) In order to provide for just and equitable contribution in any case
in which (i) an indemnified party makes a claim for indemnification pursuant to
this Section 7, but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such
indemnification may not been forced in such case notwithstanding the fact that
the express provisions of this Section 7 provide for indemnification in such
case, or (ii) contribution under the Act may be required on the part of any
indemnified party, then each indemnifying party shall contribute to the amount
paid as a result of such losses, claims, damages, expenses or liabilities (or
actions, investigations, inquiries, suits or proceedings in respect thereof) (A)
in such proportion as is appropriate to reflect the relative benefits received
by each of the contributing parties, on the one hand, and the party to be
indemnified on the other hand, from the offering of the Securities or (B) if the
allocation provided by clause (A) 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 each of the
contributing parties, on the one hand, and the party to be indemnified on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages, expenses or liabilities, as well as any other relevant
equitable considerations. In any case where the Company is the contributing
party and the Underwriters are the indemnified party, 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 of the Securities (before deducting expenses) bear to the total
underwriting discounts received by the Underwriters hereunder, in each case as
set forth in the table on the Cover Page of theProspectus. Relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, or by the
Underwriters, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, expenses or liabilities (or actions, investigations, inquiries,
suits or proceedings in respect thereof) referred to above in this subdivision
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action, claim, investigation, inquiry, suit or proceeding. Notwithstanding the
provisions of this subdivision (d) the Underwriters shall not be required to
contribute any amount in excess of the underwriting discount applicable to the
Securities purchased by the Underwriters hereunder. 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. For purposes of this Section 7, each person, if
any, who controls the Company within the meaning of the Act, each officer of the
Company who has signed the Registration Statement, and each director of the
Company shall have the same rights to contribution as the Company, subject in
each case to this subparagraph (d). Any party entitled to
- 35 -
contribution will, promptly after receipt of notice of commencement of any
action, suit, inquiry, investigation or proceeding against such party in respect
to which a claim for contribution may be made against another party or parties
under this subparagraph (d), notify such party or parties from whom contribution
may be sought, but the omission so to notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
obligation it or they may have hereunder or otherwise than under this
subparagraph (d), or to the extent that such party or parties were not adversely
affected by such omission. The contribution agreement set forth abov shall be
in addition to any liabilities which any indemnifying party may have at common
law or otherwise.
8. Representations and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Company submitted pursuant hereto,
shall be deemed to be representations, warranties and agreements at the Closing
Date and the Option Closing Date, as the case may be, and such representations,
warranties and agreements of the Company and the indemnity agreements contained
in Section 7 hereof, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Underwriter, the
Company, any controlling person of any Underwriter or the Company, and shall
survive termination of this Agreement or the issuance and delivery of the
Securities to the Underwriters.
9. Effective Date.
This Agreement shall become effective at 10:00 a.m., New York City time, on
the next full business day following the date hereof, or at such earlier time
after the Registration Statement becomes effective as the Underwriters, in their
sole discretion, shall release the Shares for sale to the public; provided,
however, that the provisions of Sections 5, 7 and 10 of this Agreement shall at
all times be effective. For purposes of this Section 9, the Shares to be
purchased hereunder shall be deemed to have been so released upon the earlier of
dispatch by the Underwriters of telegrams to securities dealers releasing such
shares for offering or the release by the Underwriters for publication of the
first newspaper advertisement which is subsequently published relating to the
Shares.
10. Termination.
Subject to subsection (b) of this Section 10, the Underwriters shall have
the right to terminate this Agreement, after the date hereof, (i) if any
domestic or international event or act or occurrence has materially disrupted,
or in the Underwriters' opinion will in the immediate future materially
adversely disrupt the financial markets; or (ii) any material adverse change in
the financial markets shall have occurred; or (iii) if trading generally shall
have been suspended or materially limited on or by, as the case may be, any of
the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Boston Stock Exchange, the Chicago
Board of Trade, the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange, Nasdaq, the Commission or any other government authority having
jurisdiction; or (iv) if trading of any of the securities of the Company shall
have been suspended, or any of the securities of the Company shall have been
deleted, on any exchange or in any over-
- 36 -
the-counter market; or (v) if the United States shall have become involved in a
war or major hostilities, or if there shall have been an escalation in an
existing war or major hostilities or a national emergency shall have been
declared in the United States; or (vi) if a banking moratorium has been declared
by a state or federal authority; or (vii) if a moratorium in foreign exchange
trading has been declared; or (viii) if the Company shall have sustained a loss
material or substantial to the Company by fire, flood, accident, hurricane,
earthquake, theft, sabotage or other calamity or malicious act which, whether or
not such loss shall have been insured, will, in the Underwriters' opinion, make
it inadvisable to proceed with the delivery of the Securities; or (viii) if
there shall have occurred any outbreak or escalation of hostilities or any
calamity or crisis or there shall have been such a material adverse change in
the conditions or prospects of the Company, or such material adverse change in
the general market, political or economic conditions, in the United States or
elsewhere as in the Underwriters' judgment would make it inadvisable to proceed
with the offering, sale and/or delivery of the Securities. (b) If this
Agreement is terminated by the Underwriters in accordance with the provisions of
Section 10(a), the Company shall promptly reimburse and indemnify the
Underwriters for all of their actual out-of-pocket expenses, including the fees
and disbursements Underwriters' Counsel (less amounts previously paid pursuant
to Section 5(c) above). Notwithstanding any contrary provision contained in
this Agreement, if this Agreement shall not be carried out within the time
specified herein, or any extension thereof granted to the Underwriters, by
reason of any failure on the part of the Company to perform any undertaking or
satisfy any condition of this Agreement by it to be performed or satisfied
(including, without limitation, pursuant to Section 6 or Section 12) then, the
Company shall promptly reimburse and indemnify the Underwriter for all of their
actual out-of-pocket expenses, including the fees and disbursements of counsel
for the Underwriter (less amounts previously paid pursuant to Section 5(c)
above). In addition, the Company shall remain liable for all Blue Sky counsel
fees and expenses and filing fees. Notwithstanding any contrary provision
contained in this Agreement, any election hereunder or any termination of this
Agreement (including, without limitation, pursuant to Sections 6, 10 and 12
hereof), and whether or not this Agreement is otherwise carried out, the
provisions of Section 5 and Section 7 shall not be in any way affected by such
election or termination or failure to carry out the terms of this Agreement or
any part hereof.
11. Substitution of the Underwriters. If one or more of the
Underwriters shall fail otherwise than for a reason sufficient to justify the
termination of this Agreement (under the provisions of Section 6, Section 10 or
Section 12 hereof) to purchase the Securities which it or they are obligated to
purchase on such date under this Agreement (the "Defaulted Securities"), the
Underwriters shall have the right, within 24 hours thereafter, to make
arrangement for one or more of the non-defaulting Underwriters, or any other
Underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Underwriters shall not have completed such arrangements
within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
total number of Firm Shares to be purchased on such date, the non-defaulting
Underwriters shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
- 37 -
(b) if the number of Defaulted Securities exceeds 10% of the total
number of Firm Shares, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriters.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default by such Underwriter under
this Agreement.
In the event of any such default which does not result in a termination of
this Agreement, the Underwriters shall have the right to postpone the Closing
Date for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements.
12. Default by the Company. If the Company shall fail at the Closing
Date or at any Option Closing Date, as applicable, to sell and deliver the
number of Shares which it is obligated to sell hereunder on such date, then this
Agreement shall terminate (or, if such default shall occur with respect to any
Option Shares to be purchased on an Option Closing Date, the Underwriters may at
their option, by notice from the Underwriters to the Company, terminate the
Underwriters' obligation to purchase Option Shares from the Company on such
date) without any liability on the part of any non-defaulting party other than
pursuant to Section 5, Section 7 and Section 10 hereof. No action taken
pursuant to this Section shall relieve the Company from liability, if any, in
respect of such default.
13. Notices. All notices and communications hereunder, except as
herein otherwise specifically provided, shall be in writing and shall be deemed
to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Representative shall be directed to the
Representative at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇, Del Deo, Dolan, Griffinger & ▇▇▇▇▇▇▇▇▇, P.C.,
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Esq. Notices to the Company shall be directed to the Company at
Perficient, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: J.
▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
14. Parties. This Agreement shall inure solely to the benefit of and
shall be binding upon, the Underwriters, the Company and the controlling
persons, directors and officers referred to in Section 7 hereof, and their
respective successors, legal representatives and assigns, and no other person
shall have been construed to have any legal or equitable right, remedy or claim
under or in respect of or by virtue of this Agreement or any provisions herein
contained. No purchaser of Securities from the Underwriters shall be deemed to
be a successor by reason merely of such purchase.
15. Construction. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York without giving
effect to the choice of law or conflict of laws principles.
16. Counterparts. This Agreement may be executed in any number of
counterparts,
- 38 -
each of which shall be deemed to be an original, and all of which taken together
shall be deemed to be one and the same instrument.
17. Entire Agreement; Amendments. This Agreement and the
Representative's Warrant Agreement constitute the entire agreement of the
parties hereto and supersede all prior written or oral agreements,
understandings and negotiations with respect to the subject matter hereof. This
Agreement may not be amended except in a writing, signed by the Underwriters and
the Company.
If the foregoing correctly sets forth the understanding between the
Underwriters and the Company, please so indicate in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement among
us.
Very truly yours,
PERFICIENT, INC.
By:
-----------------------
Name:
Title:
Confirmed and accepted as of
the date first above written.
GILFORD SECURITIES INCORPORATED
By:
-----------------------------------
Name:
Title:
- 39 -
SCHEDULE A
Underwriter Number of Firm Shares
----------- ---------------------
Gilford Securities Incorporated
TOTAL 1,150,000
▇-▇▇
▇-▇▇
▇-▇▇