EXHIBIT 1
$__________
% CONVERTIBLE SUBORDINATED NOTES DUE 2004
HEICO CORPORATION
UNDERWRITING AGREEMENT
New York, New York
, 1997
FORUM CAPITAL MARKETS L.P.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇. Connecticut 06870
Ladies and Gentlemen:
Heico Corporation, a Florida corporation (the "Company"),
confirms its agreement with Forum Capital Markets L.P. and __________________
(the "Underwriters," which term shall also include any underwriter substituted
as hereinafter provided in Section 11 hereof), with respect to the sale by the
Company and the purchase by the Underwriters, acting severally and not jointly,
of $__________ aggregate principal amount of the Company's _% Convertible
Subordinated Notes due 2004 (the "Notes") to be issued pursuant to the
provisions of an indenture (the "Indenture") between the Company and
_________________, as trustee (the "Trustee") in substantially the form filed as
an exhibit to the Registration Statement (as defined below). Such $__________
aggregate principal amount of Notes are hereafter referred to as the "Firm
Notes." Upon the request of the Underwriters, as provided in Section 2(b)
hereof, the Company shall also issue and sell to the Underwriters, acting
severally and not jointly, up to an additional $___________ aggregate principal
amount of Notes for the purpose of covering over-allotments, if any. Such
$__________ aggregate principal amount of Notes are hereinafter referred to as
the "Option Notes," and together with the Firm Notes are hereinafter referred to
as the "Notes." The shares of the Company's common stock, par value $.01 per
share (the "Common Stock"), issuable upon conversion of the Notes are
hereinafter referred to as the "Underlying Stock." The Notes and the Underlying
Stock are referred to herein as the "Securities." The Company hereby confirms
its agreement with the Underwriters with respect to the sale by the Company and
the purchase by the Underwriters of the Notes, as set forth herein.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the Underwriters as of the date
hereof, and as of the Closing Date (as defined in Section 2(c) hereof) and each
Option Closing Date (as defined in Section 2(b)
hereof), if any, as follows:
(a) 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 S-3, No.
_________, including the related preliminary prospectus dated _______,
1997 and any subsequent preliminary prospectus ("Preliminary
Prospectus"), for the registration of the Securities under the
Securities Act of 1933, as amended (the "Securities Act"), which
registration statement and amendment or amendments have been prepared
by the Company in conformity with the requirements of the Securities
Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the rules and regulations of the Commission under the
Securities Act (the "Regulations") and the rules and regulations under
the Trust Indenture Act. The Company has complied with the conditions
for the use of Form S-3. Except as the context may otherwise require,
said registration statement, as amended, on file with the Commission at
the time said 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 or, if no filing pursuant to Rule
424(b) is made, such form of prospectus included in the Registration
Statement, together with any documents thereafter incorporated by
reference therein, is hereinafter called the "Prospectus." If the
Company files an abbreviated registration statement to register
additional Securities and relies upon Rule 462(b) under the Securities
Act for such registration statement to become effective upon filing
with the Commission (the "Rule 462 Registration Statement"), then any
reference herein to the term "Registration Statement" shall be deemed
to refer to both the registration statement referred to above and the
Rule 462 Registration Statement. For purposes hereof, "Rules and
Regulations" means the rules and regulations adopted by the Commission
under the Securities Act, the Securities Exchange Act of 1934, as
amended (the "Exchange Act") or the Trust Indenture Act, as applicable.
(b) 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 or the qualification of the Trustee, and no
proceedings for a stop order suspending the effectiveness of the
Registration Statement, any of the Company's securities or the
qualification of the Trustee have been instituted or are pending or, to
the knowledge of the Company, threatened. Each of any Preliminary
Prospectus, the Registration Statement and the Prospectus at the time
of filing thereof with the Commission, conformed with the requirements
of the Securities Act, the Trust Indenture Act and the Rules and
Regulations in all material respects, none of any Preliminary
Prospectus, the Registration Statement or the
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 or 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 by or on behalf of the Underwriters expressly for use in
any such Preliminary Prospectus, Registration Statement or Prospectus.
When the Registration Statement or any amendment thereto was or is
declared effective, the Closing Date and each Option Closing Date, if
any, the Registration Statement and the Prospectus will conform to the
requirements of the Securities Act, the Trust Indenture Act and the
Rules and Regulations. At all times subsequent to the effective date of
the Registration Statement through the last to occur of the Closing
Date, the last Option Closing Date, if any, or the last date 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 conform to the requirements of the Securities Act, the
Trust Indenture Act and the Rules and Regulations. Neither the
Registration Statement nor the Prospectus, nor any amendment or
supplement thereto, as of such respective dates, with respect to the
Registration Statement, or during such respective periods, with respect
to the Prospectus, 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 not misleading; provided,
however, 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
Registration Statement or Prospectus. The Company acknowledges that the
only such written information is that contained under the caption
"Underwriting" in the Preliminary Prospectus, the Prospectus and the
Registration Statement and the stabilization legend set forth in the
forepart of the Preliminary Prospectus, the Prospectus and the
Registration Statement.
(c) The Company is subject to Section 13 or 15(d) of
the Exchange Act. The documents incorporated by reference into the
Registration Statement (the "Incorporated Documents"), when they were
filed with the Commission (or, if any amendment with respect to any
such document was filed, when such amendment was filed), complied, or
at the time they hereafter are filed with the Commission will comply,
in all material respects with the requirements of the Exchange Act and
the regulations thereunder and, when read together with the other
information in the Prospectus, at the time the Registration Statement
and any amendments thereto become or became effective, at the Closing
or any Option Closing did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading. Any Incorporated Documents filed subsequent to the date of
the Prospectus shall, when filed with the Commission, conform in all
respect to the requirements of the Exchange Act and the Rules and
Regulations, as applicable.
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(d) All the Company's subsidiaries (collectively, the
"Subsidiaries") are listed in an exhibit to the Company's Annual Report
on Form 10-K which is incorporated by reference into the Registration
Statement. The Company and each of the Subsidiaries has been duly
organized and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation. The Company
and each of the Subsidiaries 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 require such qualification or licensing, except where the
failure to be so qualified or licensed would not have a material
adverse effect on the condition, financial or otherwise, results of
operations, business or prospects of the Company and the Subsidiaries,
taken as a whole (a "Material Adverse Effect"). The Company does not
own or control, directly or indirectly, any corporation, partnership,
limited liability company, association or other entity other than the
Subsidiaries. None of the Subsidiaries owns more than 10 % of or
controls, directly or indirectly, any corporation, partnership, limited
liability company, association or other entity other than
________________________________. The Company owns, either directly or
through other Subsidiaries, all of the outstanding capital stock of
each Subsidiary free and clear of all liens, charges, claims,
encumbrances, pledges, security interests defects or other restrictions
or equities of any kind whatsoever; and all outstanding capital stock
of the Subsidiaries has been duly authorized and validly issued and is
fully paid and non-assessable and not issued in violation of any
preemptive rights or applicable securities laws. Each of the Company
and the Subsidiaries has all requisite power and authority (corporate
and other), and has obtained any and all necessary authorizations,
approvals, orders, licenses, certificates, franchises and permits
(collectively "Approvals") of and from all governmental or regulatory
officials and bodies, to own or lease its properties and conduct its
business as described in the Prospectus except for Approvals which if
not so obtained would not have a Material Adverse Effect; each of the
Company and the Subsidiaries is and has been doing business in
compliance with all such Approvals and all federal, foreign, state and
local laws, rules and regulations, except for such failures to comply
as would not have a Material Adverse Effect; and neither the Company
nor any of the Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Approval. The
jurisdictions of incorporation and qualification or licensing of the
Company and the Subsidiaries are identified on Annex A hereto.
(e) The Company has an authorized, issued and
outstanding capitalization as set forth in the Prospectus under the
caption "Capitalization," and will have the adjusted capitalization set
forth therein on the Closing Date and each Option Closing Date, if any,
based upon the assumptions set forth therein (except as a result of the
issuance of shares of Common Stock identified as reserved in the
footnotes to such table pursuant to the plans described therein or the
options described therein). Neither the Company nor any of the
Subsidiaries is a party to or bound by any instrument, agreement or
other arrangement, including, but not limited to, any voting trust
agreement, stockholders' agreement or other agreement or instrument,
affecting the securities or
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rights or obligations of securityholders of the Company or providing
for it to issue, sell, transfer or acquire any capital stock, rights,
warrants, options or other securities of the Company, except for this
Agreement and the Indenture and as set forth in the Registration
Statement. The Securities and all other securities issued or issuable
by the Company and the Subsidiaries conform, or, when issued and paid
for, will conform in all material respects to all statements with
respect thereto contained in the Prospectus. All issued and outstanding
securities of the Company and the Subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable;
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 securityholder of the Company or any of the
Subsidiaries or similar contractual rights granted by the Company or
any of the Subsidiaries. The Notes will be issued pursuant to the terms
and conditions of the Indenture, and the Indenture will conform in all
material respects to the description thereof contained in the
Registration Statement. At the Closing Date, the Indenture will conform
to the requirements of the Trust Indenture Act and the Rules and
Regulations applicable to an indenture which is qualified thereunder.
The Notes have been duly authorized and, when validly authenticated,
issued, delivered and paid for in the manner contemplated by the
Indenture, will be duly authorized, validly issued and outstanding
obligations of the Company entitled to the benefits of the Indenture.
The Underlying Stock issuable upon conversion of the Notes will, upon
such issuance, be duly authorized, validly issued, fully paid and
nonassessable, and the Company has duly authorized and reserved for
issuance upon conversion of the Notes, the Underlying Stock issuable
upon such conversion. The Securities are not and will not be subject to
any preemptive or other similar rights of any securityholder of the
Company or any of the Subsidiaries; 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. No holder of any securities
of the Company has any right to require registration of shares of
Common Stock or other securities of the Company because of the filing
of the Registration Statement or the consummation of the transactions
contemplated hereby. Upon the issuance and delivery pursuant to the
terms of this Agreement and the Indenture of the Notes to be sold by
the Company hereunder and thereunder, the Underwriters will acquire
good and marketable title thereto free and clear of any lien, charge,
claim, encumbrance, pledge, security interest, defect or other
restriction or equity of any kind whatsoever
(f) The consolidated financial statements of the
Company and the Subsidiaries together with the related notes thereto
set forth in or incorporated by reference in the Registration
Statement, each Preliminary Prospectus and the Prospectus fairly
present the financial position, changes in stockholders' equity, cash
flow and results of operations of the Company and the Subsidiaries at
the respective dates and for the respective periods to which they
apply, and such historical financial statements have been prepared in
conformity with generally accepted accounting principles and the Rules
and Regulations, consistently applied throughout the periods involved;
there has been no
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material adverse change or development involving a material prospective
change in the condition, financial or otherwise, or in the earnings,
business, prospects or results of operations of the Company and the
Subsidiaries taken as a whole, 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 businesses of
each of the Company and the Subsidiaries 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 and Operating Data,"
"Selected Financial Data," "Capitalization" and "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" fairly presents, in all respects, on the basis stated in
the Prospectus, the information set forth therein and has been derived
from or compiled on a basis consistent with that of the audited
financial statements included in the Prospectus.
(g) Each of the Company and the Subsidiaries has
filed all material tax returns required to be filed by it in any
jurisdiction, other than those filings being contested in good faith,
and has paid all federal, state, local and foreign taxes shown to be
due on such returns or claimed to be due from such entities, other than
those (i) currently payable without penalty or interest or (ii) being
contested in good faith; and the Company has established adequate
reserves in its financial statements (in accordance with generally
accepted accounting principles) for such taxes which are not due and
payable and for any material tax deficiency or claims outstanding,
proposed or assessed against it.
(h) 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 Notes from the Company or (iii) the consummation by
the Company of any of its obligations under this Agreement or the
Indenture.
(i) Each of the Company and the Subsidiaries
maintains liability, casualty and other insurance (subject to customary
deductions and retentions) with responsible insurance companies against
such risks generally insured against by companies engaged in similar
businesses as the Company and the Subsidiaries. To the Company's
knowledge, neither the Company nor any of the Subsidiaries (A) has
failed to give notice or present any material insurance claim with
respect to any matter, including, but not limited to, the Company's or
any of the Subsidiaries' businesses, property or professional staff,
under any insurance policy or surety bond in a due and timely manner,
(B) has any material disputes or claims against any underwriter of such
insurance policies or surety bonds or has failed to pay any premiums
due and payable thereunder or (C) has failed to comply with all
conditions contained in such insurance policy and surety bonds wherein
such failure would have a Material Adverse Effect. There are no facts
or circumstances known to the Company which would have the effect under
any such insurance policy or surety bond of relieving any insurer of
its obligation to satisfy in all material respects any
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valid claim of the Company or any of the Subsidiaries.
(j) There is no action, suit, proceeding,
arbitration, litigation or governmental proceeding pending or, to the
knowledge of the Company, threatened against (or circumstances that are
reasonably likely to give rise to the same), or involving the
properties or businesses of, the Company or any of the Subsidiaries
which (i) questions the validity of the capital stock of the Company or
any of the Subsidiaries or this Agreement or the Indenture or of any
action taken or to be taken by the Company or any of the Subsidiaries
pursuant to or in connection with this Agreement or the Indenture, or
(ii) could have a Material Adverse Effect which is not disclosed in the
Registration Statement or the Prospectus.
(k) The Company has full corporate right, power and
authority to authorize, issue, deliver and sell the Securities, to
enter into this Agreement and the Indenture and to consummate the
transactions provided for in such agreements. This Agreement has been
duly and properly authorized, executed and delivered by the Company.
This Agreement constitutes, and when the Company has duly executed and
delivered the Indenture, the Indenture (assuming the due execution and
delivery thereof by the Trustee) will constitute, a legal, valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at
law or in equity) and except to the extent that rights to
indemnification and contribution may be limited by federal or state
securities laws on public policy relating thereto. None of the
Company's issue and sale of the Securities, the execution or delivery
of this Agreement or the Indenture, its performance hereunder and
thereunder, its consummation of the transactions contemplated herein
and therein or the conduct by it and the Subsidiaries of their
businesses as described in the Registration Statement or any amendments
or supplements thereto conflicts 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
results or will 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 of the Company or any of the Subsidiaries pursuant to the terms
of, (i) the certificate of incorporation or by-laws of the Company or
any of the Subsidiaries, (ii) 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 or any of the Subsidiaries is a party
or by which it is or may be bound or to which its properties or assets
is or may be subject, or any indebtedness, or (iii) any statute,
judgment, decree, order, rule or regulation applicable to the Company
or any of the Subsidiaries of any arbitrator, court, regulatory body or
administrative agency or other governmental agency or body, having
jurisdiction over the Company or any of the Subsidiaries or any of
their respective
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activities or properties except, in the case of clauses (ii) and (iii),
such conflict, breaches, defaults, creations, impositions and
violations that would not have a Material Adverse Effect.
(l) No consent, approval, authorization or order of,
and no filing with, any court, arbitrator, regulatory body, government
agency or other body, domestic or foreign, is required for the
execution, delivery or performance by the Company of this Agreement or
the Indenture or the transactions contemplated hereby or thereby,
except such as have been or may be obtained under the Securities Act or
the Exchange Act or may be required under state securities or Blue Sky
laws or the rules of the National Association of Securities Dealers,
Inc. (the "NASD") or with respect to the listing of the Notes on the
New York Stock Exchange in connection with the Underwriters' purchase
and distribution of the Notes.
(m) Subsequent to the respective dates as of which
information is set forth in the Prospectus and except as may otherwise
be indicated or contemplated herein or therein, unless the Company has
notified the Underwriters in writing otherwise, neither the Company nor
any of the Subsidiaries has (i) issued any securities or incurred any
material liability or obligation, direct or contingent, for borrowed
money not in the ordinary course of business, (ii) entered into any
material transaction other than in the ordinary course of business or
(iii) declared or paid any dividend, other than regular cash dividends,
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 from
the description thereof in the Registration Statement or any material
adverse change in or affecting the general affairs, management,
financial operations, stockholders' equity or results of operation of
the Company or any of the Subsidiaries.
(n) Neither the Company nor any of its Subsidiaries
(i) is in violation of its certificate of incorporation or by-laws, as
applicable, (ii) is in default in the performance of any obligation,
agreement or condition contained in any license, contract, indenture,
mortgage, installment sale agreement, lease, deed of trust, voting
trust agreement, stockholders' agreement, note, loan or credit
agreement, purchase order, agreement or instrument evidencing an
obligation for borrowed money or other material agreement or instrument
to which the Company or any of the Subsidiaries is a party or by which
the Company or any of the Subsidiaries may be bound or to which the
property or assets of the Company or any of the Subsidiaries is subject
or affected or (iii) is in violation in any respect of any law,
ordinance, governmental rule, regulation or court decree to which it or
its property or assets may be subject, except any violation or default
under the foregoing clause (ii) or (iii) as would not have a Material
Adverse Effect.
(o) The Company believes that each of the Company and
the Subsidiaries currently has a good employer/employee relationship
with its employees and each of the Company and the Subsidiaries is in
compliance with all federal, state, local and
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foreign laws and regulations respecting employment and employment
practices, terms and conditions of employment and wages and hours,
except for such failures to comply as would not have a Material Adverse
Effect. There are no pending investigations involving the Company or
any of the Subsidiaries by the U.S. Department of Labor or, to the
Company's knowledge, any such investigations by any other governmental
agency responsible for the enforcement of such federal, state, local or
foreign laws and regulations that would be material to the Company or
such Subsidiary. There is no unfair labor practice charge or complaint
against the Company or any of the Subsidiaries pending before the
National Labor Relations Board or any strike, picketing, boycott,
dispute, slowdown or stoppage pending or threatened against or
involving the Company or any of the Subsidiaries. No representation
question exists respecting the employees of the Company or any of the
Subsidiaries, and no collective bargaining agreement or modification
thereof is currently being negotiated by the Company or any of the
Subsidiaries. No grievance or arbitration proceeding is pending or
threatened under any expired or existing collective bargaining
agreements of the Company or any of the Subsidiaries. No material labor
dispute with the employees of the Company or any of the Subsidiaries
exists or, to the best of the Company's knowledge, is imminent.
(p) No "employee pension benefit plan," "employee
welfare benefit plan" or "multi-employer plan" (ERISA Plans) 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"), maintained or sponsored by the Company or any of the
Subsidiaries (or any trust created thereunder) has engaged in a
"prohibited transaction" within the meaning of Section 406 of ERISA or
Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code"), which could subject the Company or any of the Subsidiaries to
any tax penalty or civil penalty on prohibited transactions which has
not been adequately corrected and which might reasonably be expected to
have a Material Adverse Effect. No "accumulated funding deficiency" (as
defined in Section 302 of ERISA) or any of the events set forth in
Section 4043(b) of ERISA (other than events with respect to which the
30-day notice under Section 4043 of ERISA has been waived) has occurred
with respect to any employee benefit plan which might reasonably be
expected to have a Material Adverse Effect. Each ERISA Plan is in
compliance with all reporting, disclosure and other requirements of the
Code and ERISA as they relate to such ERISA Plan, except for
noncompliance which could be reasonably expected to have a Material
Adverse Effect. 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. Neither the
Company nor any of the Subsidiaries has ever completely or partially
withdrawn from a "multi-employer plan" as so defined.
(q) Neither the Company or any of the Subsidiaries,
nor any of its affiliates has taken or will take, directly or
indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result in, under the
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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.
(r) Each of the Company and the Subsidiaries owns or
has the right to use, free and clear of all liens, claims, charges,
encumbrances, pledges, security interests and other adverse interests
of any kind whatsoever, all patents, trademarks, service marks, trade
names, copyrights, technology, and all licenses and rights with respect
to the foregoing, used in the conduct of its business as now conducted
or proposed to be conducted without, to the knowledge of the Company,
infringing upon or otherwise acting adversely to the right or claimed
right of any person, corporation or other entity. The Company is not
aware of any infringement of or conflict with asserted rights of others
with respect to any of the foregoing which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
have a Material Adverse Effect.
(s) Each of the Company and the Subsidiaries has good
and marketable title to, or valid and enforceable leasehold estates in,
all items of real and personal property which are material to its
business, in each case, except as disclosed in the Prospectus, free and
clear of all liens, charges, claims, encumbrances, pledges, security
interests, defects and other restrictions that would have a Material
Adverse Effect.
(t) To the Company's knowledge, Deloitte & Touche LLP
is an independent certified public accountant of the Company as
required by the Securities Act and the Rules and Regulations.
(u) The Common Stock is listed on the American Stock
Exchange.
(v) Neither the Company or any of the Subsidiaries
nor any of their respective officers, directors, stockholders,
employees or agents nor any other person acting on behalf of the
Company or any of the Subsidiaries has, directly or indirectly, since
_________ 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 any official or employee of any governmental agency
(domestic or foreign), or any instrumentality of any government
(domestic or foreign), or any political party or candidate for office
(domestic or foreign), or any other person who was, is or may be in a
position to help or hinder the businesses of the Company or any of the
Subsidiaries (or assist the Company or any of the Subsidiaries in
connection with any actual or proposed transaction) which would be
reasonably likely to subject the Company or any of the Subsidiaries, or
any of such others to any material damage or penalty in any civil,
criminal or governmental litigation or proceeding (domestic or
foreign). The Company believes that each of the Company's and the
Subsidiaries' internal accounting controls are sufficient to cause the
Company and the Subsidiaries to comply in all material respects with
the Foreign Corrupt Practices Securities Act of 1977, as amended.
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(w) The minute books of the Company and each of the
Subsidiaries have been made available to the Underwriters, contain a
complete summary of all meetings and actions of the directors and
stockholders of each of the Company and the Subsidiaries since the time
of their respective incorporation and reflect all transactions referred
to in such minutes accurately in all respects.
(x) Neither the Company nor any of the Subsidiaries
has been notified or is otherwise aware that it is potentially liable,
or is considered potentially liable, under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, or any similar law ("Environmental Laws"), except as would not
have a Material Adverse Effect. To the Company's knowledge, the Company
and the Subsidiaries are in compliance with all applicable existing
Environmental Laws, except for such instances of non-compliance which
would not have a Material Adverse Effect. The term "Hazardous Material"
means (i) any "hazardous substance" as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, (ii) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act, as amended, (iii) any petroleum or
petroleum product, (iv) any polychlorinated biphenyl and (v) any
pollutant or contaminant or hazardous, dangerous or toxic chemical,
material, waste or substance regulation under or within the meaning of
any other Environmental Law. To the Company's knowledge, no disposal,
release or discharge of "Hazardous Material" has occurred on, in, at or
about any of the facilities or properties of the Company or any of the
Subsidiaries, except for those instances which are in compliance with
Environmental Laws or in the aggregate would not have a Material
Adverse Effect. Except as described in the Prospectus, to the Company's
knowledge: (i) there has been no storage, disposal, generation,
transportation, handling or treatment of Hazardous Material by the
Company or any of the Subsidiaries (or to the knowledge of the Company,
any of its predecessors in interest) at, upon or from any of the
property now or previously owned or leased by the Company or any of the
Subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require
remedial action which has not been taken, under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit, except
for such violations and failures to take remedial action which would
not result in, singularly or in the aggregate, a Material Adverse
Effect; (ii) there has been no material spill, discharge, leak,
emission, injection, escape, dumping or release of any kind onto such
property or into the environment surrounding such property by the
Company or any of the Subsidiaries of any Hazardous Materials, except
for such spills, discharges, leaks, emissions, injections, escapes,
dumping or releases which are in compliance with Environmental Laws or
would not result in, singularly or in the aggregate, a Material Adverse
Effect.
(y) The Company is not an "investment company," a
company controlled by an "investment company" or an "affiliated person"
of, or "promoter" or "principal underwriter" for, an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended and the rules or regulations thereunder.
- 11 -
(z) None of the proceeds of the sale of the Notes
will be used, directly or indirectly, for the purpose of purchasing or
carrying any margin security, for the purpose of reducing or retiring
any indebtedness which was originally incurred to purchase or carry any
margin security or for any other purpose which might cause any of the
Notes to be considered a "purpose credit" within the meanings of
Regulation G, T, U or X of the Board of Governors of the Federal
Reserve Board.
(aa) The Company and the Subsidiaries have complied
and will comply with all the provisions of Florida H.B. 1771, codified
as Section 517.075 of the Florida Statutes, and all regulations
promulgated thereunder relating to issuers doing business with Cuba.
(bb) Except as set forth in this Agreement, there are
no claims, payouts, 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 Notes hereunder or any
other arrangement, agreement, understanding, payment or issuance with
respect to the Company, any of the Subsidiaries or any of their
respective officers, directors or affiliates that would constitute
underwriters' compensation as determined by the NASD. For these
purposes, underwriters' compensation means total expenses payable by
the Company to or on behalf of the Underwriters which normally would be
paid by the Underwriters, fees and expenses of Underwriters' Counsel
(as defined herein), finders fees, financial consulting and advisory
fees or other items of value accruing to the Underwriters and related
persons, which items of value include, but are not necessarily limited
to, stock, options, warrants and convertible and other debt securities
if the same are deemed to have been received in connection with or in
relation to the offering contemplated by this Agreement and when given
by or acquired from the Company or related parties of the Company or
persons in control of or under common control with the Company or
related parties of the Company.
(cc) The Indenture has been duly qualified under the
Trust Indenture Act, and all fees required to be paid with respect to
the execution of the Indenture and the issuance of the Notes have been
paid or will be paid when due.
2. PURCHASE BY THE UNDERWRITERS: DELIVERY AND PAYMENT.
(a) On the basis of the representations, warranties
and agreements contained herein, and subject to the terms and
conditions set forth herein, the Company agrees to issue and sell to
the Underwriters, and the Underwriters agree, severally and not
jointly, to purchase from the Company, the aggregate principal amount
of Firm Notes set forth opposite the name of such Underwriter in
Schedule I attached hereto at a purchase price equal to _% of the
principal amount thereof, plus any additional amount of Firm Notes
which each underwriter may become obligated to purchase pursuant to
Section 11 hereof.
- 12 -
(b) In addition, on the basis of the representations,
warranties and agreements contained herein, and subject to the terms
and conditions set forth herein, the Company hereby grants an option to
the Underwriters to purchase, severally and not jointly, any or all of
the Option Notes at a price equal to _% of the principal amount thereof
plus accrued interest from the Closing Date to the applicable Option
Closing Date. Such option will expire at 5:00 p.m. New York time 30
days after the date hereof, 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 Notes upon notice by the Underwriters to the Company setting
forth the aggregate principal amount of Option Notes as to which the
Underwriters are then exercising the option and the time and date of
delivery and payment therefor. Any such time and date of delivery and
payment (an "Option Closing Date") shall be determined by the
Underwriters, but shall not be later than five full business days after
the exercise of such option unless otherwise agreed by the Company and
the Underwriters.
(c) Delivery of, and payment for, the Firm Notes
shall be made at 10:00 a.m., New York City time, on ___________, 1997,
or at such other date or time as shall be agreed by the Underwriters
and the Company (such date and time being referred to herein as the
"Closing Date"). Delivery of, and payment for, the Firm Notes and the
Option Notes shall be made at the offices of Paul, Hastings, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP ("Underwriters' Counsel"), New York, New York, or any such
other place as shall be agreed by the Underwriters and the Company. On
the Closing Date, the Company shall deliver or cause to be delivered to
the Underwriters certificates for the Firm Notes against payment to or
upon the order of the Company of the purchase price by certified or
official bank check, or if the Underwriters so elect, by wire or
book-entry transfer, in each case in immediately available funds. On
each Option Closing Date, the Company shall deliver or cause to be
delivered to the Underwriters certificates for the Option Notes
purchased thereat against payment to or upon the order of the Company
of the purchase price by certified or official bank check, or if the
Underwriters so elect, by wire or book-entry transfer, in each case of
New York Clearing House (next day) funds. Upon delivery, the Notes
shall be in such denominations and registered in such names as the
Underwriters shall have requested in writing not less than one full
business day prior to the Closing Date. The Company shall make the
certificates for the Notes available for inspection by the Underwriters
in New York, New York, not later than one full business day prior to
the Closing Date.
3. PUBLIC OFFERING OF THE NOTES. As soon after the
Registration Statement becomes effective as the Underwriters deem advisable, the
Underwriters shall make a public offering of the Notes (other than to residents
of any jurisdiction in which the qualification of the Notes is required and has
not become effective) at the price and upon the other terms set forth in the
Prospectus. The Underwriters may from time to time increase or decrease the
public offering price after the distribution of the Notes has been completed to
such extent as the Underwriters in their sole discretion deem advisable. The
Underwriters may enter into one or more agreements as
- 13 -
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 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 Securities Act or Exchange
Act during any time that a prospectus relating to the Securities is
required to be delivered under the Securities Act of which the
Underwriters and Underwriters' Counsel shall not previously have been
advised and furnished with a copy, or to which the Underwriters or
Underwriters' Counsel shall have reasonably objected, or which is not
in compliance with the Securities Act, the Exchange Act, the Trust
Indenture Act or the Rules and Regulations.
(b) As soon as the Company is advised or obtains
knowledge thereof, the Company will advise the Underwriters and if
requested confirm in writing, (i) when the Registration Statement, as
amended, becomes effective and, if the provisions of Rule 430A
promulgated under the Securities 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 the qualification of the
Trustee 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 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 or suspension at the earliest
possible time.
(c) The Company shall file the Prospectus 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)) on or
before the date it is required to be filed under the Securities Act and
the Rules and Regulations.
- 14 -
(d) The Company will give the Underwriters 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 Underwriters' Counsel shall
reasonably object.
(e) The Company will furnish to the Underwriters and
Underwriters' Counsel, without charge, three photocopies of the
manually executed Registration Statement (including exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Securities Act, as many copies of each
Preliminary Prospectus and Prospectus and any supplement thereto as the
Underwriters may reasonably request.
(f) 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 to complete the
distribution contemplated hereby, 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, subject itself to taxation or file a
general 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 for so long as may be necessary to complete the
distribution contemplated hereby.
(g) During the time when a prospectus is required to
be delivered under the Securities Act, the Company shall comply with
all requirements imposed upon it by the Securities 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 Notes 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 is
required to be delivered under the Securities 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
- 15 -
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Securities 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 Securities Act, each such amendment or supplement to be reasonably
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.
(h) 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
securityholders, 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 ll(a) of the Securities Act and Rule 158(a) of
the Rules and Regulations, which statement need not be audited unless
required by the Securities Act, covering a period of at least 12
consecutive months after the effective date of the Registration
Statement.
(i) If the Company engages in business with the
Government of Cuba or with any person or affiliate located in Cuba, and
the Company further agrees that if it commences engaging in business
with the government of Cuba or with any person or affiliate located in
Cuba after the date the Registration Statement becomes or has become
effective with the Commission or with the Florida Department of Banking
and Finance (the "Department"), whichever date is later, or if the
information reported in the Prospectus, if any, concerning the
Company's business with Cuba or with any person or affiliate located in
Cuba changes in any material way, the Company will provide the
Department notice of such business or change, as appropriate, in a form
acceptable to the Department.
(j) For so long as the Company is a reporting company
under either Section 13 or 15(d) of the Exchange Act, the Company will
furnish to its securityholders, as soon as practicable, annual reports
(including financial statements audited by independent public
accountants) and will deliver to the Underwriters during the period
ending at the earlier of the fifth anniversary of the date hereof or
the date no Notes remain outstanding:
i) concurrently with furnishing such annual
reports to its securityholders, 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 report
- 16 -
thereon of independent certified public accountants;
ii) copies of the Quarterly Report on Form 10-Q
or Form 10-QSB;
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 filed with the Commission,
any state securities commission, the NASD, the NASDAQ Stock
Market (NASDAQ), the American Stock Exchange or any other
securities exchange;
v) every press release which was released by or
on behalf of the Company or any of the Subsidiaries; and
vi) any additional information of a public nature
concerning the Company or any of the Subsidiaries (and any
future subsidiaries) or their respective businesses which the
Underwriters may reasonably request.
The foregoing financial statements will be on a consolidated basis to the extent
that the accounts of the Company and its Subsidiaries are consolidated, and will
be accompanied by similar financial statements for any Subsidiary which is not
so consolidated.
(k) For a period of four years after the Closing
Date, 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 Securities Act) from
time to time under the Securities 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 Securities Act, the Exchange Act and the Rules and Regulations.
(l) 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 full
business days prior thereto, a copy of the latest available unaudited
interim consolidated financial statements of the Company and the
Subsidiaries (which in no event shall be as of a date more than 30 days
prior to the date of the Registration Statement) which have been read
by the Company's independent public accountants as stated in their
letters to be furnished pursuant to Section 7(j) hereof.
(m) The Company shall use its best efforts to
maintain the American Stock Exchange listing of the Common Stock.
(n) Until the completion of the distribution of the
Notes, neither the
- 17 -
Company nor any of the Subsidiaries shall, without the prior written
consent of the Underwriters and Underwriters' Counsel (which consent
shall not be unreasonably withheld), issue, directly or indirectly, any
press release or other communication or hold any press conference with
respect to the Company, any of the Subsidiaries, their respective
activities or the offering contemplated hereby, other than trade
releases issued in the ordinary course of the Company's business
consistent with past practices with respect to the Company's
operations.
(o) The Company will comply with all provisions of
all undertakings contained in the Registration Statement.
(p) For a period ending on the earlier of (i) four
years from the date hereof and (ii) the issuance of all of the
Underlying Stock, the Company will not take any action or actions which
may cause the exemption from registration provided by Section 3(a)(9)
of the Securities Act (or any successor provision) to be unavailable
for the conversion into Common Stock.
(q) For a period of four years after the effective
date of the Registration Statement, the Company shall use reasonable
efforts to provide to the Underwriters, at the Underwriters' request
and at the Company's sole expense, with a Blue Sky "Trading Survey" for
secondary sales of the Company's securities prepared by counsel to the
Company; provided, however that the Underwriters shall not make any
such request unless the Common Stock or the Notes are not listed on
NASDAQ, the NASDAQ Stock Market or a national securities exchange at
the time of such request.
(r) to use the proceeds from the sale of the Notes in
the manner described in the Prospectus under the caption "Use of
Proceeds."
(s) to use its reasonable efforts to do and perform
all things required to be done and performed under this Agreement by it
that are within its control prior to or after the Closing Date and to
use reasonable efforts to satisfy all conditions precedent on its part
to the delivery of the Notes.
(t) to not, so long as the Notes are outstanding, be
or become, or be or become owned by, an open-end investment company,
unit investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company
Act, and will not be or become, or be or become owned by, a closed-end
investment company required to be registered, but not registered
thereunder.
(u) in connection with the offering, until the
Underwriters shall have notified the Company of the completion of the
resale of the Notes, to not, and to use its reasonable best efforts to
not permit any affiliated purchasers (as defined in Rule 10b-6 under
the Exchange Act), either alone or with one or more other persons to,
bid for or purchase, for any account in which it or any of its
affiliated purchasers has a beneficial
- 18 -
interest, any Notes, or attempt to induce any person to purchase any
Notes; and to not, and to use its reasonable best efforts to not permit
any of its affiliated purchasers to, make bids or purchases for the
purpose of creating actual, or apparent, active trading in or of
raising the price of the Notes.
(v) to not take any action prior to the execution and
delivery of the Indenture which, if taken after such execution and
delivery, would have violated any of the covenants contained in the
Indenture.
5. PAYMENT OF EXPENSES.
(a) The Company will pay all expenses incident to the
performance of the obligations of the Company under this Agreement and
the Indenture, 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 each
Preliminary Prospectus and the Prospectus and any amendments and
supplements thereto, in quantities as hereinabove stated, (iii) the
printing and filing of the Registration Statement and each amendment
thereto and any registration under the Securities Act; (iv) the
printing, engraving, issuance and delivery of the Notes, (v) the
qualification of the Notes and the Underlying Stock 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" and, the
"Supplemental Blue Sky Memorandum", and reasonable disbursements and
fees of counsel for the Underwriters in connection therewith, (vi)
costs and expenses of travel, food and lodging of Company personnel in
connection with the "road show," information meetings and
presentations, (vii) fees and expenses of the transfer agent and
registrar, (viii) fees and expenses of the Trustee, including the
Trustee's counsel, in connection with the Indenture and the Notes, (ix)
fees incurred in connection with the rating, if any, of the Notes, (x)
any transfer tax, stamp duty or similar tax payable by the Underwriters
in connection with the purchase by the Underwriters of the Notes, (xi)
the fees payable to the NASD incurred in connection with its review of
the Underwriting terms of the offering of the Securities, (xii) the
fees payable to the American Stock Exchange incurred in connection with
the listing of the Underlying Stock for trading on the American Stock
Exchange, (xiii) all costs of placing tombstone advertisements in The
New York Times, The Wall Street Journal and the Investment Dealers
Digest not to exceed an aggregate of $___________ and (xiv) all other
costs and expenses incident to the performance of its obligations
hereunder which are not specifically otherwise provided for in this
Section.
(b) If this Agreement is terminated for any reason
other than as a result of a breach of this Agreement by the
Underwriters, the Company shall reimburse and indemnify the
Underwriters for then reasonable actual accountable out-of-pocket
- 19 -
expenses, including the reasonable fees and expenses of Underwriters'
Counsel. In addition, the Company shall remain liable for all Blue Sky
counsel fees and expenses and Blue Sky filing fees as described above.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters hereunder shall be subject to the continuing
accuracy 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, as
if they had been made on and as of the Closing Date or each Option Closing Date,
as the case may be; 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 (including the
Statement of Eligibility and Qualification of the Trustee on Form T-l
(the "Form T-1), shall have become effective not later than 5:30 p.m.
New York time on the date hereof or at such later time and date as may
have been approved by the Underwriters and no stop order suspending the
effectiveness of the Registration Statement (including the Form T-l)
shall have been issued and no proceedings for that purpose shall have
been instituted or shall be pending or, to the knowledge of the Company
or the Underwriters, threatened 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 Securities and any price-related
information previously omitted from the effective Registration
Statement pursuant to such Rule 430A shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) of the Rules and
Regulations within the prescribed time period, and prior to the 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) The Underwriters shall not have advised the
Company that the Registration Statement, or any supplement or amendment
thereto, contains an untrue statement of fact which, in the
Underwriters' reasonable opinion, is material or omits to state a fact
which, in the Underwriters' reasonable opinion, is material and is
required to be stated therein or is necessary to make the statements
therein not misleading, or that the Prospectus or any supplement
thereto, contains an untrue statement of fact which, in the
Underwriters' reasonable opinion, is material or omits to state a fact
which, in the Underwriters' reasonable opinion is material and is
required to be stated therein or is necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. No order suspending the sale of the Securities in any
jurisdiction shall have been issued on either the Closing Date or the
relevant Option Closing Date, if any, and no proceedings for that
purpose shall have been instituted or shall, to the knowledge of the
Underwriters, be threatened.
- 20 -
(c) On or prior to the Closing Date and each Option
Closing Date, if any, the Underwriters shall have received from
Underwriters' Counsel such options or opinions with respect to the
organization of the Company, the validity of the Notes, the Underlying
Stock, the Registration Statement and other related matters as the
Underwriters may request and Underwriters' Counsel shall have received
such papers and information as they request to enable it to pass upon
such matters.
(d) On the Closing Date, the Underwriters shall have
received the opinion of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇▇▇, P.A., counsel to the Company, dated the Closing Date,
addressed to the Underwriters and in form and substance satisfactory to
the Underwriters and Underwriters' Counsel to the effect that:
i) the Company and each of the Subsidiaries (A)
has been duly organized and is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation, (B) is duly qualified and
licensed and in good standing as a foreign corporation in each
jurisdiction identified in Annex A attached hereto wherein it
owns or leases material properties or conducts material
business and (C) has all requisite corporate power and
authority to own or lease its properties and conduct its
business as, to the knowledge of such counsel, it is now
conducted;
ii) the Company has a duly authorized, issued and
outstanding capitalization as set forth in the Prospectus
under the caption "Capitalization," subject to such
adjustments therein as are expressly contemplated by the
Prospectus; the Company owns, directly or through one or more
of the Subsidiaries, the percentage of the outstanding capital
stock of each Subsidiary as described in Annex A attached
hereto, in each case free and clear of any liens, charges,
claims, encumbrances, pledges, security interests, defects or
other encumbrances;
iii) except as disclosed in the Registration
Statement, to such counsel's knowledge neither the Company nor
any of the Subsidiaries is 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 of the Company or any of the Subsidiaries, except
for this Agreement and the Indenture and as described in the
Registration Statement; the Securities and all other
securities issued or issuable by each of the Company or any of
the Subsidiaries conform, or when issued and paid for, will
conform in all material respects to all statements with
respect thereto contained in the Registration Statement and
the Prospectus; all issued and outstanding equity securities
(including capital stock and options and rights with respect
thereto) of the Company or any of the Subsidiaries have been
duly authorized and validly issued and are fully paid and
non-assessable; the holders thereof are not subject to
personal liability by reason of being such
- 21 -
holders; to such counsel's knowledge, none of such securities
were issued in violation of the preemptive rights of any
securityholder of the Company or any of the Subsidiaries or
similar contractual rights granted by the Company or any of
the Subsidiaries or applicable securities laws; the Notes have
been duly authorized and, when validly authenticated, issued,
delivered and paid for in the manner contemplated by the
Indenture and this Agreement, will be duly authorized, validly
issued and outstanding obligations of the Company entitled to
the benefits of the Indenture (except as such benefits may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application relating to or
effecting creditors' rights and the application of equitable
principles in any action, legal or equitable); the Notes and
the Indenture conform in all material respects to the
description thereof set forth in the Registration Statement
and the Prospectus; the shares of Common Stock issuable upon
conversion of the Notes will, upon such issuance in accordance
with the Indenture, be duly authorized, validly issued, fully
paid and non-assessable; the Company has duly authorized and
reserved for issuance upon conversion of the Notes the shares
of Common Stock issuable upon such conversion; the Securities
to be sold by the Company hereunder and under the Indenture
are not and will not be subject to any preemptive or other
similar rights of any securityholder of the Company or any of
the Subsidiaries; 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; the
certificates representing the Securities are in due and proper
form; and upon the issuance and delivery pursuant to this
Agreement and the Indenture of the Notes to be sold by the
Company hereunder, and when the Underwriters take delivery of
the certificates representing the Notes, and assuming the
Underwriters are acquiring the Notes in good faith without
notice of any adverse claim (within the meaning of the Uniform
Commercial Code) the Underwriters will acquire good and
marketable title thereto free and clear of any pledge, lien,
charge, claim, encumbrance, security interest or other
encumbrance;
iv) the Registration Statement (including the
Form T-l) is effective under the Securities Act; a Prospectus
containing the information permitted to be omitted under Rule
430A has been filed in accordance with Rule 424(b); and to
such counsel's knowledge after due inquiry, no stop order
suspending the effectiveness of the Registration Statement or
the qualification of the Trustee is in effect and no
proceedings for that purpose have been instituted or are
threatened by the Commission (in rendering the opinion
required by this paragraph (iv), such counsel may rely solely
on the oral advice of the staff of the Commission to the
extent written confirmation from the Commission has not been
received);
v) the Registration Statement and the
Prospectus, and any
- 22 -
amendments or supplements thereto (other than the financial
statements and notes thereto and other financial, statistical
and accounting data included therein or omitted therefrom and
the Form T-1, as to which no opinion need be rendered) comply
as to form in all material respects with the requirements of
the Securities Act, the Trust Indenture Act and the Rules and
Regulations; and each of the Incorporated Documents (except
for the financial statements and the notes thereto and the
schedules and other financial and statistical data included
therein, as to which such counsel need not express any
opinion) complies as to form in all material respects with the
Exchange Act and the rules and regulations of the Commission
thereunder;
vi) the Indenture has been qualified under the
Trust Indenture Act;
vii) the descriptions in the Registration
Statement and the Prospectus of agreements and documents to
which the Company or any of the Subsidiaries is a party or by
which any of them or their respective properties are bound,
including any agreement or document incorporated by reference
into the Registration Statement and the Prospectus or of any
statutes, are accurate in all material respects and fairly
present the subject matter thereof; to such counsel's
knowledge there is no action, arbitration, suit or other
proceeding against the Company or any of the Subsidiaries, or
involving the properties or business of the Company or any of
the Subsidiaries, which (x) questions the validity of the
capital stock of the Company or any of the Subsidiaries or of
this Agreement, the Indenture or of any action taken or to be
taken by the Company or any of the Subsidiaries pursuant to or
in connection with any of the foregoing or (y) except as
disclosed in the Prospectus, could have a Material Adverse
Effect;
viii) the Company has full legal right, corporate
power and authority to execute, deliver and perform each of
this Agreement and the Indenture and to consummate the
transactions provided for herein and therein; and the
execution, delivery and performance of each of this Agreement
and the Indenture has been duly authorized, each of this
Agreement and the Indenture has been duly executed and
delivered by the Company, and, assuming due authorization,
execution and delivery by each other party thereto,
constitutes a legal, valid and binding agreement of the
Company enforceable against the Company 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);
ix) the execution or delivery by the Company of
this Agreement
- 23 -
and the Indenture, its performance hereunder or thereunder,
its consummation of the transactions contemplated herein or
therein, each in accordance with its terms, do not and will
not conflict with or result in any breach or violation of,
constitutes a default under or result in the creation or
imposition of any lien, charge, claim, encumbrance, pledge,
security interest or other encumbrance upon any property or
assets of the Company or any of the Subsidiaries pursuant to
the terms of (A) the articles of incorporation or by-laws of
the Company or any of the Subsidiaries, (B) any license,
contract, indenture, mortgage, deed of trust, voting trust
agreement, stockholders' agreement, note, loan or credit
agreement or other agreement or instrument known to such
counsel to which the Company or any of the Subsidiaries is a
party or by which any of them is or may be bound or to which
any of their respective properties or assets is or may be
subject, except for such conflicts, breaches, violations,
defaults and creations or impositions which in the aggregate
would not have a Material Adverse Effect, or (C) any statute,
rule or regulation (other than federal or state securities
laws) or, to the best of such counsel's knowledge, any
judgment, decree or order applicable to the Company or any of
the Subsidiaries of any arbitrator, court, regulatory body or
administrative agency or other governmental agency or body
having jurisdiction over the Company or any of the
Subsidiaries or any of their respective activities or
properties, except with respect to this clause (C) for such
conflicts, breaches, violations, defaults and creations or
impositions which in the aggregate would not have a Material
Adverse Effect;
x) to the knowledge of such counsel,
the Company and the Subsidiaries are not in violation of their
respective charters or by-laws; neither the Company nor any of
the Subsidiaries is in breach or, or in default with respect
to, any provisions of any license, contract, indenture,
mortgage, deed of trust, voting trust agreement, stockholders'
agreement, note, loan or credit agreement or other agreement
or instrument known to such counsel to which the Company or
any of the Subsidiaries is a party or by which any of them is
or may be bound or to which any of their respective properties
or assets is or may be subject, except for such breaches or
defaults as would not have a Material Adverse Effect, and to
the knowledge of such counsel, the Company and the
Subsidiaries are in material compliance with all laws, rules
and regulations and all judgments, decrees and orders of any
judicial or governmental authority to which the Company or any
of the Subsidiaries or by which any of them is or may be bound
or to which any of their respective properties or assets is or
may be subject, except for such noncompliance as would not
have a Material Adverse Effect;
xi) no consent, approval, authorization or order
of, and no filing with, any court, regulatory body, government
agency or other body (other than such as may have been made or
obtained and such as may be required under state securities or
Blue Sky laws or the rules of the NASD, as to which no opinion
- 24 -
need be rendered) is required in connection with the issuance
of the Securities as contemplated by the Prospectus, the
performance by the Company of this Agreement and the Indenture
and the transactions contemplated hereby and thereby;
xii) the information contained in the Prospectus
under the caption "Description of the Notes," "Business -
Legal Proceedings" and "Certain United States Federal Income
Tax Considerations," to the extent that it constitutes matters
of law, summaries of legal matters, documents or proceedings,
or legal conclusions, has been received by such counsel and is
correct in all material respects;
xiii) neither the consummation of the
transactions contemplated by this Agreement nor the sale,
issuance, execution or delivery of the Notes will violate
Regulation G, T, U or X of the Federal Reserve Board; and
xiv) the Company is not an "investment company,"
a company controlled by, or under common control with, an
"investment company," or a "promoter" or "principal
underwriter" for, an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended.
In rendering such opinion, such counsel may rely: (A) as to matters involving
the application of laws other than the laws of the United States and
jurisdictions in which they are admitted, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory to Underwriters'
Counsel) of other counsel acceptable to Underwriters' Counsel, familiar with the
applicable laws; and (B) 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 and the Subsidiaries, provided, that
copies of any such statements or certificates shall be delivered to
Underwriters' Counsel if requested. 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. At each Option Closing Date, if any, the Underwriters shall have
received the favorable opinion of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇▇▇, P.A., dated such Option Closing Date, addressed to the Underwriters and
in form and substance satisfactory to the Underwriters and Underwriters' Counsel
confirming as of such Option Closing Date the statements made by such counsel in
their opinion delivered on the Closing Date.
(e) ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇▇▇, P.A. shall state in the opinion letters contemplated by
Section 6(d) that such counsel has participated in conferences with
officers and other representatives of the Company and representatives
of the independent public accountants for the Company and the
Subsidiaries and the
- 25 -
Underwriters, at which conferences the contents of the Registration
Statement and related matters were discussed, and, although such
counsel is not passing upon, and does not assume any responsibility
for, the accuracy, completeness or fairness of the statements contained
in the Registration Statement, on the basis of the foregoing, no facts
have come to the attention of such counsel which has lead them to
believe that the Registration Statement as of its effective date
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except that such counsel need
express no opinion or belief with respect to the financial statements
and related notes and other financial, statistical or accounting data
included in the Registration Statement or excluded therefrom.
(f) On the Closing Date and each Option Closing Date,
if any, Underwriters' Counsel shall have been furnished such documents,
certificates and opinions as they may reasonably require and have
requested reasonably in advance for the purpose of enabling them to
review or pass upon the matters referred to in Section 6(c) hereof or
in order to evidence the accuracy, completeness or satisfaction of any
of the representations, warranties or conditions of the Company herein
contained.
(g) On and as of the Closing Date and each Option
Closing Date, if any: (i) there shall have been no material adverse
change and no development involving a prospective material adverse
change in the condition, financial or otherwise, prospects,
stockholders' equity or the business activities of the Company and the
Subsidiaries taken as a whole, 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 or any of the Subsidiaries, from the latest date as
of which the financial condition of the Company and the Subsidiaries is
set forth in the Registration Statement and Prospectus which is
materially adverse to the Company and the Subsidiaries taken as a
whole; (iii) neither the Company nor any of the Subsidiaries shall be
in default under any provision of any instrument relating to any
material outstanding indebtedness; (iv) no material amount of the
assets of the Company or any of the Subsidiaries shall have been
pledged or mortgaged, except as set forth in the Prospectus; (v) no
action, suit or proceeding, at law or in equity, shall have been
pending or, threatened (or circumstances which could reasonably be
expected to give rise to same shall have arisen) against the Company or
any of the Subsidiaries, or affecting any of their respective
properties or businesses, before or by any court or federal, state or
foreign commission, board or other administrative agency wherein an
unfavorable decision, ruling or finding may have a Material Adverse
Effect, except as set forth in the Prospectus; and (vi) no stop order
shall have been issued under the Securities Act and no proceedings
therefor shall have been initiated or threatened by the Commission or
any state regulatory authority.
(h) On the Closing Date and each Option Closing Date,
if any,
- 26 -
the Underwriters shall have received a certificate of the Company
signed by the chairman and by the chief financial or chief accounting
officer of the Company, in their capacities as such, dated the Closing
Date or such Option Closing Date, as the case may be, to the effect
that each of such persons has carefully examined the Registration
Statement, the Prospectus, this Agreement and the Indenture and that:
i) the representations and warranties of the
Company in this Agreement are true and correct in all material
respects, as if made on and as of the Closing Date or such
Option Closing Date, as the case may be, and the Company has
complied in all material respects with all agreements and
covenants and satisfied all conditions contained in this
Agreement and the Indenture on its part to be performed or
satisfied at or prior to the Closing Date or such Option
Closing Date, as the case may be;
ii) no stop order suspending the effectiveness of
the Registration Statement or any part thereof or the
qualification of the Trustee is in effect and no proceedings
for that purpose are pending or, to such officer's knowledge,
threatened;
iii) since the date of the most recent financial
statements included in the Prospectus, there has been no
material adverse change in the condition, financial or
otherwise business, prospects or results of operation of the
Company and the Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in the Prospectus;
iv) 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 or any
amendment or supplement thereto includes any untrue statement
of a material fact or omits to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading and none of the Prospectus
or 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
v) subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus: (a) neither the Company nor any of the
Subsidiaries has 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 continent, except as disclosed in
the Prospectus; (b) neither the Company nor any of the
Subsidiaries
- 27 -
has paid or declared any dividends or other distributions,
other than regular cash dividends, on its capital stock except
as disclosed in the Prospectus; (c) neither the Company nor
any of the Subsidiaries has entered into any material
transactions not in the ordinary course of business, except as
disclosed in the Prospectus; (d) there has not been any
material change in the capital stock of the Company from the
description thereof in the Registration Statement; (e) neither
the Company nor any of the Subsidiaries has sustained any
material loss or damage to its property or assets, whether or
not insured; and (f) there is no litigation which is pending
or to the best of the Company's knowledge threatened against
the Company, any of the Subsidiaries or any affiliated party
of any of the foregoing which would have a Material Adverse
Effect and which is required to be set forth in an amended or
supplemented Prospectus which has not been set forth.
(i) On or prior to the Closing Date and each Option
Closing Date, if any, the Underwriters shall have received a
certificate signed by the secretary of the Company, in his capacity as
such, dated the Closing Date or such Option Closing Date, as the case
may be, as to:
i) the absence of any contemplated proceeding for
the merger, consolidation, liquidation or dissolution of the
Company or any Subsidiary, as the case may be, or the sale of
all or substantially all of its assets;
ii) the due adoption and full force and effect of
the By-laws of the Company (with a copy of the By-laws
attached);
iii) resolutions adopted by the Board of
Directors of the Company and/or a committee thereof
authorizing the offering of the Notes and the consummation of
the transactions contemplated by this Agreement and the
Indenture (with copies of such resolutions attached); and
iv) the incumbency, authorization and signatures
of certain officers and directors of the Company, including
all those signing this Agreement, the Indenture and/or any
certificate delivered at such closing.
(j) By no later than 5:00 p.m. New York City time on
the date hereof the Underwriters shall have received a letter, dated
such date, addressed to the Underwriters in form and substance
satisfactory in all respects (including the non-material nature of the
changes or decreases, if any, referred to in clause (iii) below) to the
Underwriters and Underwriters' Counsel, from Deloitte & Touche LLP:
i) confirming that they are independent certified
public accountants with respect to the Company within the
meaning of the Securities Act and the Exchange Act and the
applicable Rules and Regulations;
- 28 -
ii) stating that it is their opinion that the
consolidated financial statements and supporting schedules of
the Company included in the Registration Statement comply as
to form in all material respects with the applicable
accounting requirements of the Securities Act and the Exchange
Act and the applicable Rules and Regulations;
iii) stating that, on the basis of procedures
which included a reading of the latest available interim
consolidated financial statements of the Company (with an
indication of the date of the latest available unaudited
consolidated 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 board of
directors of each of the Company and the Subsidiaries,
consultations with officers and other employees of each of the
Company and the Subsidiaries responsible for financial and
accounting matters and other procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information, nothing has come to
their attention which would lead them to believe that:
(A) the unaudited consolidated financial
statements of the Company included in the
Registration Statement are not in conformity with
generally accepted accounting principles applied on a
basis substantially consistent with that of the
audited consolidated financial statements contained
in the Registration Statement;
(B) the unaudited consolidated financial
statements of the Company included in the
Registration Statement are not in conformity in form
in all material respects with applicable requirements
of the Securities Act and the applicable published
rules and regulations with respect to financial
statements included or incorporated in quarterly
reports on Form 10- Q under the Exchange Act;
(C) at the date of the latest available
balance sheet read by Deloitte & Touche LLP, and at a
subsequent date not more than five business days
prior to the date of delivery of such letter, there
has been any increase in consolidated short-term
indebtedness or long-term indebtedness of the Company
and the Subsidiaries, or any decrease in the
stockholders' equity or net current assets or net
assets of the Company, as compared with amounts shown
in the latest balance sheet 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; or
(D) the period from the date of the latest
income
- 29 -
statement included in the Registration Statement to
the date of the latest available income statement
read by Deloitte & Touche LLP, and at a subsequent
date not more than five business days prior to the
date of delivery of such letter, there was any
decrease in consolidated net revenues or net income,
or net income per common share of the Company, in
each case as compared with the corresponding period
of the previous year, 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) stating that they have compared specific
dollar amounts, numbers of shares, percentages of revenues and
earnings, statements and/or other financial information
pertaining to the Company and the Subsidiaries contained in
the Registration Statement (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 the Subsidiaries 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 set forth
in the letter and found them to be in agreement with such
results; and
v) 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 Deloitte & Touche LLP
a letter, dated as of the Closing Date or such Option Closing Date, as
the case may be, to the effect that they reaffirm that statements made
in the letter furnished pursuant to Section 6(j) hereof, except that
the specified date referred to shall be a date not more than five days
prior to the Closing Date or such 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 (iv) of Section 6(j) hereof 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 (iv).
(l) The Company shall have delivered to the
Underwriters a letter from Deloitte & Touche LLP addressed to the
Company stating that they have not with respect to or subsequent to the
Company's fiscal year ended ________, 1997 brought to the attention of
any of the Company's or the Subsidiaries management any 'weakness' as
defined in Statement of Auditing Standard No. 60 "Communication of
Internal Control Structure Related Matters Noted in an Audit" in any of
Company's or the Subsidiaries' internal controls.
- 30 -
(m) On each of the Closing Date and each Option
Closing Date, if any, there shall have been duly tendered to the
Underwriters the appropriate principal amount of Notes.
(n) Trading in the Common Stock shall not have been
suspended by the American Stock Exchange at any time after _________,
1997.
(o) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following: (i)
trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the over-the-counter market shall have been
suspended or limited, or minimum prices shall have been established on
either of such exchanges or such market by the Commission, by such
exchange or by any other regulatory body or governmental authority
having jurisdiction, or trading in securities of the Company on any
exchange or in the over-the-counter market shall have been suspended or
(ii) any moratorium on commercial banking activities shall have been
declared by Federal or New York State authorities or (iii) an outbreak
or escalation of hostilities or a declaration by the United States of a
national emergency or war or such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the Underwriters,
impracticable or inadvisable to proceed with the offering or the
delivery of the Notes on the terms and in the manner contemplated in
the Registration Statement.
(p) The Indenture shall have been duly executed and
delivered by the Company and the Trustee and the Notes shall have been
duly executed and delivered by the Company and duly authenticated by
the Trustee.
(q) On the Closing Date the Underwriters shall have
received the favorable opinion of [▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇], Esq., General
Counsel of the Company, dated the Closing Date, and addressed to the
Underwriters and in form and substance satisfactory to the Underwriters
and Underwriters' Counsel to the effect that:
i) the Company and each of the Subsidiaries has
full corporate power and authority, and all necessary
governmental authorizations, approvals, orders, licenses,
certificates, franchises and permits of and from all
governmental regulatory officials and bodies (except where the
failure to so have any such authorizations, approvals, orders,
licenses, certificates, franchises or permits, individually or
in the aggregate, would not have a Material Adverse Effect),
to own their respective properties and to conduct their
respective businesses as now being conducted as described in
the Prospectus;
ii) the Company owns of record, directly or
indirectly, all the outstanding shares of capital stock of
each of the Subsidiaries free and clear of any adverse claims
or restrictions whatsoever, except as disclosed in the
Prospectus;
- 31 -
iii) except as described in the Prospectus or in
the Incorporated Documents, such counsel does not know of any
outstanding option, warrant or other right calling for the
issuance of, and such counsel does not know of any commitment,
plan or arrangement to issue, any share of capital stock of
the Company or any security convertible into or exchangeable
or exercisable for capital stock of the Company; except as
described in the Prospectus, such counsel does not know of any
holder of any securities of the Company or any other person
who has the right, contractual or otherwise, to cause the
Company to sell or otherwise issue to them, or to permit them
to underwrite the sale of, any of the Notes or the right to
have any Common Stock or other securities of the Company
included in the registration statement or the right, as a
result of the filing of the registration statement, to require
registration under the Act of any shares of Common Stock or
other securities of the Company;
iv) the Company has full legal right, corporate
power and authority to execute, deliver and perform each of
this Agreement and the Indenture and to consummate the
transactions provided for herein and therein; and the
execution, delivery and performance of each of this Agreement
and the Indenture has been duly authorized, each of this
Agreement and the Indenture has been duly executed and
delivered by the Company, and, assuming due authorization,
execution and delivery by each other party thereto,
constitutes a legal, valid and binding agreement of the
Company enforceable against the Company 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);
v) to the knowledge of such counsel, neither the
Company nor any Subsidiary is in default in any material
respect in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or other
evidence of indebtedness or any material agreement, indenture,
lease or other instrument to which the Company or any
Subsidiary is a party or by which any of their respective
properties may be bound, which default or violation has or
would (with the passage of time, the giving of notice or both)
have a Material Adverse Effect, except as may be disclosed in
the Prospectus;
vi) the issuance, offer, sale and delivery of the
Notes by the Company, the execution, delivery and performance
of this Agreement and the Indenture by the Company, the
compliance by the Company with the provisions hereof and
thereof; and the consummation by the Company of the
transactions contemplated hereby and thereby do not and will
not result in any violation of any judgment, injunction, order
or decree known to such counsel after reasonable
- 32 -
inquiry, applicable to the Company or any of the Subsidiaries
or any of their respective properties; and
vii) no consent, approval, authorization or order
of, and no filing with, any court, regulatory body, government
agency or other body (other than such as may have been made or
obtained and such as may be required under state securities or
Blue Sky laws or the rules of the NASD, as to which no opinion
need be rendered) is required in connection with the issuance
of the Securities as contemplated by the Prospectus, the
performance by the Company of this Agreement and the Indenture
and the transactions contemplated hereby and thereby.
In rendering such opinion, such counsel may rely: (A) as to matters involving
the application of laws other than the laws of the United States and
jurisdictions in which they are admitted, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance satisfactory to Underwriters' Counsel) of
other counsel acceptable to Underwriters' Counsel, familiar with the applicable
laws; and (B) 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 and the Subsidiaries, provided, that copies of any
such statements or certificates shall be delivered to Underwriters' Counsel if
requested. The opinion of such counsel 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. At each Option Closing Date, if any,
the Underwriters shall have received the favorable opinion of such counsel,
dated such Option Closing Date, addressed to the Underwriters and in form and
substance satisfactory to the Underwriters and Underwriters' Counsel confirming
as of such Option Closing Date the statements made by such counsel in their
opinion delivered on the Closing Date.
(r) Such counsel shall state in the opinion letters
contemplated by Section 6(q) that such counsel has participated in
conferences with officers and other representatives of the Company and
representatives of the independent public accountants for the Company
and the Subsidiaries and the Underwriters, at which conferences the
contents of the Registration Statement and related matters were
discussed, and, although such counsel is not passing upon, and does not
assume any responsibility for, the accuracy, completeness or fairness
of the statements contained in the Registration Statement on the basis
of the foregoing, no facts have come to the attention of such counsel
which has lead them to believe that the Registration Statement as of
its date contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, except that such counsel
need express no opinion or belief with respect to the financial
statements and related notes and other financial, statistical or
accounting data included in the Registration Statement or
- 33 -
excluded therefrom.
(s) On or prior to the date hereof, the Underwriters
shall have received clearance from the NASD as to the amount of
compensation allowable or payable to the Underwriters, as described in
the Registration Statement.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to the Underwriters.
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, they 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 and agents of each 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
an Underwriter ("controlling person") within the meaning of Section 15
of the Securities 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, suits and litigation in
respect thereof), whatsoever (including but not limited to any and all
reasonable expenses whatsoever incurred in investigating, preparing or
defending against any action, suit, proceeding or litigation, commenced
or threatened, or claim whatsoever), as the same are incurred, to which
any of the Underwriters or any such controlling person may become
subject (1) as a result of the failure of any representation or
warranty made by the Company under Section 1 to be true and correct
when made, or (2) under the Securities Act, the Exchange Act or any
other statute or at common law or otherwise insofar as such losses,
claims, damages, expenses or liabilities arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in (i) any Preliminary Prospectus, the Registration Statement
or the Prospectus (as from time to time amended and supplemented) (ii)
any post-effective amendment or amendments or any new registration
statement and prospectus in which are included securities of the
Company for use in the same offering or (iii) any blue sky application
or other document executed by the Company specifically for that purpose
or based upon written information furnished by the Company filed in any
state or other jurisdiction in order to qualify any or all of the
Securities under the securities laws thereof (any such application,
document or information being hereinafter called a "Blue Sky
Application"), or arise out of or are based upon the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make
- 34 -
the statements therein not misleading (in the case of the Prospectus,
in the light of the circumstances under which they were made),
provided, however, that the Company shall not be liable in any such
case to the extent, but only to the extent, that any such loss, claim,
damage, expense or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Underwriters
("Underwriters Information") specifically for inclusion therein and
provided, further, that with respect to any untrue statement or
omission or alleged untrue statement or omission made in any
Preliminary Prospectus or the Prospectus, the indemnification provided
for herein shall not apply to any loss, liability, claim, damage or
expense to the extent the same results from the sale of Notes to a
person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus, or in the case of
an untrue statement or omission or alleged untrue statement or omission
in the Prospectus, a copy of the amended Prospectus or supplement
thereto, if the Company has previously furnished sufficient copies
thereof, based upon the number of copies indicated by the Underwriters,
to the Underwriters a reasonable time in advance and the claim, damage
or expense of such person results from an untrue statement or alleged
untrue statement or omission or alleged omission of a material fact
contained in a Preliminary Prospectus or Prospectus that was corrected
in the Prospectus or amendment or supplement thereto. The indemnity
agreement in this Section 7(a) shall be in addition to any liability
which the Company may have at common law or otherwise.
(b) The Underwriters agree severally and not jointly
to indemnify and hold harmless the Company, each of its directors, each
of its officers who have signed the Registration Statement and each
other person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to the
Underwriters, but only with respect to statements or omissions made in
conformity with the Underwriters' Information in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any
amendment thereof or supplement thereto.
(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 to
notify an indemnifying party shall not relieve it from any liability
which it may have under Section 7 (a) or (b) unless and to the extent
that it has been prejudiced in a material respect by such failure or
from the forfeiture of substantial rights and defenses). In case any
such action, 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
- 35 -
defense thereof with counsel reasonably satisfactory to such
indemnified party, which may be the same counsel as counsel to the
indemnifying 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 take 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
parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of such
indemnified party or parties), in any of which events such fees and
expenses of one additional counsel reasonably satisfactory o the
indemnifying parties 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 or separate but similar or related actions 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.
(d) In order to provide for just and equitable
contribution in any case in which (i) an indemnified party makes 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
be enforced 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 Securities Act may be required, then
each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid as a result of such losses,
claims, damages, expenses or liabilities (or actions, suits,
proceedings or litigation 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. 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
- 36 -
Notes (before deducting expenses) bear to the total discounts received
by the Underwriters hereunder, in each case as set forth in the table
on the cover page of the Prospectus. 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, suits, proceedings or litigation in respect
thereof) referred to above in this Section 7(d) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating, preparing or
defending any such action, claim, suit, proceeding or litigation.
Notwithstanding the provisions of this Section 7(d), no Underwriter
shall be required to contribute any amount in excess of the
underwriting discount applicable to the Notes purchased by the
Underwriters hereunder. No person guilty of fraudulent
misrepresentation (within the meaning of Section 1 l(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person, if any, who controls the Company within
the meaning of the Securities Act, each officer of the Company who
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 Section 7(d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of
any action, suit, proceeding or litigation against such party in
respect to which a claim for contribution may be made against another
party or parties under this Section 7(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 Section 7(d), or to the extent
that such party or parties were not adversely affected by such
omission. The contribution agreement set forth above 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 each Option Closing Date, as the case may be, and the agreements of the
Company and the provisions with respect to the payment of expenses contained in
Sections 5 and 10 and the respective 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 of the
Subsidiaries or any controlling person, 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
- 37 -
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 discretion, shall release the Notes for the sale to the
public; provided, however, that the provisions of Sections 1, 5, 7 and 10 of
this Agreement shall at all times be effective. For purposes of this Section 9,
the Notes 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 the Notes for offering or the release by the Underwriters for
publication of the first newspaper advertisement which is subsequently published
relating to the Notes.
10. TERMINATION.
(a) Subject to Section 10(b), the Underwriters shall
have the right to terminate this Agreement and the obligations
hereunder at any time prior to the Closing Date (and with respect to
the Option Notes, the Option Closing Date), without liability on the
part of any Underwriter if, on or prior to such date, (i) trading on
the New York Stock Exchange, the American Stock Exchange, the NASDAQ
Stock Market or in the over-the-counter market shall have been
suspended, or minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have been
required in the over-the-counter market by the NASD or by order of the
Commission or any other government authority having jurisdiction; (ii)
the United States shall have become involved in a war or major
hostilities, or 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; (iii) a moratorium in foreign exchange trading
has been declared; (iv) the Company or any of the Subsidiaries shall
have sustained a loss material or substantial to the Company or any of
the Subsidiaries 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; (v) there shall have been such a material adverse change in
the conditions or prospects of the Company or any of the Subsidiaries
as in the Underwriters' judgment would make it inadvisable to proceed
with the offering, sale and/or delivery of the Securities; or (vi)
there shall have been such a 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.
The right of the Underwriters to terminate this Agreement will not be
waived or otherwise relinquished by their failure to give notice of
termination prior to the time that the event giving rise to the right
to terminate shall have ceased to exist, provided that notice is given
prior to the Closing Date (and, with respect to the Option Notes, the
Option Closing Date).
(b) If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 10(a) or
Section 12 or 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
- 38 -
any condition of this Agreement by it to be performed or satisfied
(including, without limitation, pursuant to Section 6, Section 10(a) or
Section 12), then the Company shall promptly reimburse and indemnify
the Underwriters for all of their reasonable out-of-pocket expenses,
including the fees and disbursements of Underwriters' Counsel. In
addition, the Company shall remain liable for all Blue Sky counsel fees
and expenses and Blue Sky 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, 11 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 48 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 48 hour period, then:
i) if the principal amount of Defaulted
Securities does not exceed 10% of the aggregate principal
amount of Firm Notes 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
ii) if the principal amount of Defaulted
Securities exceeds 10% of the aggregate principal amount of
Firm Notes, this Agreement shall terminate without liability
on the part of any nondefaulting Underwriters.
No action taken pursuant to this Section 11 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 any Option Closing Date, as applicable, to sell and
deliver the number of Securities which it is obligated to sell hereunder on such
date, then this Agreement shall terminate (or, if such default
- 39 -
shall occur with respect to any Option Securities 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 Notes from the Company on such date) without any liability on the part of
any non-defaulting party other than pursuant to Sections 5, 7 and 10 hereof. No
action taken pursuant to this Section 12 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 given in writing and shall
be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be directed to them at
Forum Capital Markets L.P., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Mr. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, with a copy to ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇,
Esq. Notices to the Company shall be directed to the Company at Heico
Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, Attention: General
Counsel, with a copy to ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇,
P.A., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ,
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 or be 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 Notes 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 choice of law or conflict of laws principles.
16. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, 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 constitutes
the entire agreement of the parties hereto and supersedes 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.
- 40 -
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,
HEICO CORPORATION
By: ______________________________
Name:
Title:
Confirmed and accepted as of
the date first above written.
FORUM CAPITAL MARKETS L.P.
________________________________
By: FORUM CAPITAL MARKETS L.P.
By: ____________________________
Name:
Title:
- 41 -
SCHEDULE I
NAME OF UNDERWRITER PRINCIPAL AMOUNT OF
------------------- NOTES TO BE
PURCHASED
-------------------
Forum Capital Markets L.P....................................... $_________
______________________-......................................... $_________
==========
Total........................................ $_________
==========
- 42 -
ANNEX A
---------------------- ------------------------------ ----------------------
Name State of Incorporation Jurisdictions in
which Qualified to
Conduct Business
Heico Corporation Florida
[Subsidiaries]
- 43 -
