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SPECTRAN CORPORATION
COMMON STOCK
(PAR VALUE $.10 PER SHARE)
UNDERWRITING AGREEMENT
Boston, Massachusetts
January , 1997
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
As Representatives of the
Several Underwriters
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
SpecTran Corporation, a Delaware corporation (the "Company"), and the
stockholder of the Company named in Schedule B hereto (the "Selling
Stockholder") confirm their agreement with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇
▇▇▇▇▇▇▇") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), and each of
the other underwriters, if any, named in Schedule A hereto (collectively, the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 11), for whom ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇
are acting as representatives (in such capacity, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇ are herein called the "Representatives"), with respect to the sale by the
Company and the Selling Stockholder and the purchase by the Underwriters, acting
severally and not jointly, of an aggregate of 1,800,000 shares of the common
stock, $.10 par value per share, of the Company ("Common Stock"), of which
1,450,000 shares are to be sold by the Company and 350,000 shares are to be sold
by the Selling Stockholder (collectively, the "Firm Shares"), and with respect
to the grant by the Company to the Underwriters, acting severally and not
jointly, of the option described in Section 2(b) hereof to purchase from the
Company all or any part of 270,000 additional shares of Common Stock for the
purpose of covering over-allotments, if any. The Firm Shares and all or any part
of the shares of Common Stock subject to the option described in Section 2(b)
hereof (the "Option Shares") are hereinafter collectively referred to as the
"Shares."
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING STOCKHOLDER.
I. The Company represents and warrants to, and agrees with, each of the
Underwriters as of the date hereof, and as of the Closing Date, as defined in
Section 2(c) hereof, and the Option Closing Date, as defined in Section 2(b)
hereof, if any, as follows:
(a) A registration statement on Form S-3 (File No. ) with
respect to the Shares, including a prospectus subject to completion, has
been prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), and the applicable Rules
and Regulations (as defined below) of the Securities and Exchange
Commission (the "Commission") and has been filed with the Commission; such
amendments to such registration statement, and such amended prospectuses
subject to completion, as may have been required prior to the date hereof
have been similarly prepared and filed with the Commission; and the Company
will file such additional amendments to such registration statement, and
such amended prospectuses subject to completion, as may hereafter be
required. Copies of such registration statement and each such amendment,
each such related prospectus subject to completion (collectively, the
"Preliminary Prospectuses" and individually, a "Preliminary Prospectus"),
each document incorporated by reference therein and each exhibit thereto
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have been delivered to you. For purposes hereof, "Rules and Regulations"
means the rules and regulations adopted by the Commission under either the
Act or the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as applicable.
If the registration statement has been declared effective under the
Act by the Commission, the Company will prepare and promptly file with the
Commission, pursuant to subparagraph (1) or (4) of Rule 424(b) of the Rules
and Regulations under the Act or as part of a post-effective amendment to
the registration statement (including a final form of prospectus), the
information omitted from the registration statement pursuant to Rule
430A(a) of the Rules and Regulations under the Act. If the registration
statement has not been declared effective under the Act by the Commission,
the Company will prepare and promptly file a further amendment to the
registration statement, including a final form of prospectus. The term
"Registration Statement" as hereinafter used in this Agreement shall mean
such registration statement, including financial statements, schedules and
exhibits in the form in which it became or becomes, as the case may be,
effective (including, if the Company omitted information from the
registration statement pursuant to Rule 430A(a) of the Rules and
Regulations under the Act, the information deemed to be a part of the
registration statement at the time it became effective pursuant to Rule
430A(b) of the Rules and Regulations under the Act) and, in the event of
any amendment thereto after the effective date of such registration
statement, shall also mean (from and after the effectiveness of such
amendment) such registration statement as so amended, together with any
registration statement filed by the Company pursuant to Rule 462(b) under
the Act. The term "Prospectus" as used in this Agreement shall mean the
prospectus relating to the Shares as included in such registration
statement at the time it became or becomes, as the case may be, effective,
except that if any revised prospectus shall be provided to the Underwriters
by the Company for use in connection with the offering of the Shares that
differs from the Prospectus on file with the Commission at the time the
registration statement became or becomes, as the case may be, effective
(whether or not such revised prospectus is required to be filed with the
Commission pursuant to Rule 424(b)(3) of the Rules and Regulations under
the Act), the term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to the Underwriters for such use,
together with the term sheet or abbreviated term sheet filed with the
Commission pursuant to Rule 424(b)(7) under the Act. Any reference herein
to the Registration Statement, the Prospectus, any amendment or supplement
thereto or any Preliminary Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein, and any reference
herein to the terms "amend," "amendment" or "supplement" with respect to
the Registration Statement or Prospectus shall be deemed to refer to and
include the filing of any document with the Commission deemed to be
incorporated by reference therein.
(b) Neither the Commission nor any state regulatory authority has
issued any order preventing or suspending the use of any Preliminary
Prospectus, at the time of filing thereof, or instituted proceedings for
that purpose, and each such Preliminary Prospectus, at the time of filing
thereof, has conformed in all material respects to the requirements of the
Act and the Rules and Regulations and, at the time of filing thereof, has
not included any untrue statement of a material fact or omitted to state
any material fact necessary to make the statements therein not misleading
and at the time the Registration Statement became or becomes, as the case
may be, effective and at all times subsequent thereto up to and including
the Closing Date (as hereinafter defined) and any Option Closing Date (as
hereinafter defined), and during such longer period as the Prospectus may
be required to be delivered in connection with sales by an Underwriter or a
dealer, (i) the Registration Statement and Prospectus, and any amendments
or supplements thereto, contained and will contain all material information
required to be included therein by the Act and the Rules and Regulations
and conformed and will conform in all material respects to the requirements
of the Act and the Rules and Regulations, and (ii) neither the Registration
Statement nor the Prospectus, nor any amendment or supplement thereto
included or will include any untrue statement of a material fact or omitted
or will omit to state any material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances
under which they were made not misleading. The documents incorporated by
reference in the Registration Statement, the Prospectus, any amendment or
supplement thereto or any Preliminary Prospectus, when they became or
become effective under the Act or were or are filed with the Commission
under the Exchange Act, as the case may be,
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conformed or will conform in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the Rules and Regulations,
and as of the date any such document was or is filed with the Commission
under the Exchange Act such document did not, and on Closing Date and on
any Option Closing Date will not, omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading.
(c) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware. Each
of the subsidiaries of the Company (collectively, the "Wholly-Owned
Subsidiaries" and individually, a "Wholly-Owned Subsidiary") has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware. General Photonics LLC, the joint venture
between the Company and General Cable Industries, Inc. ("GCI") (the "Joint
Venture"), has been duly organized and is validly existing as a limited
liability company in good standing under the laws of the State of Delaware.
(The Wholly-Owned Subsidiaries and the Joint Venture are herein called
collectively, the "Subsidiaries" and individually, a "Subsidiary.") The
Company and each of the Subsidiaries are duly qualified and licensed and in
good standing as foreign corporations or as a foreign limited liability
company, as the case may be, in each jurisdiction in which their respective
ownership or leasing of any properties or the character of their respective
operations requires such qualification or licensing, except where the
failure to be so qualified would not have a material adverse effect on the
condition, financial or otherwise, or on the business affairs, position,
prospects, value, operation, properties, business or results of operation
of the Company and the Subsidiaries taken as a whole whether or not arising
in the ordinary course of business (a "Material Adverse Effect"). The
Company and each of the Subsidiaries have all requisite power and authority
(corporate and as a limited liability company, as appropriate), and have
obtained any and all necessary authorizations, approvals, orders, licenses,
certificates, franchises and permits of and from all governmental or
regulatory officials and bodies (including, without limitation, the United
States Environmental Protection Agency and those other officials and bodies
having jurisdiction over similar matters), to own or lease their respective
properties and conduct their respective businesses as described in the
Prospectus (collectively, "Government Approvals"), except where the failure
to so obtain any such Government Approval would not have a Material Adverse
Effect; the Company and each of the Subsidiaries are and have been doing
business in compliance with all such Government Approvals, except where the
failure to so comply 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
Government Approvals. All of the outstanding shares of capital stock of
each of the Wholly-Owned Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable and are owned by the Company free
and clear of all liens, encumbrances and security interests, except that
all of the outstanding shares of capital stock of the Wholly-Owned
Subsidiaries are pledged as security for the Company's aggregate principal
amount of $24 million Senior Secured Notes and $20 million revolving credit
facility from Fleet National Bank; 50 percent of the ownership interests in
the Joint Venture have been duly acquired and are owned by Applied Photonic
Devices, Inc., a Wholly-Owned Subsidiary ("APD"), free and clear of all
liens, encumbrances and security interests and the other 50 percent of the
ownership interests are owned by GCI; and no options, warrants or other
rights to purchase, agreements or other obligations to issue or other
rights to convert any obligations into, or exchange any securities for,
shares of capital stock of or ownership interests in any of the
Subsidiaries are outstanding, except for certain rights held by GCI to
acquire the ownership interests of APD in the Joint Venture in the event of
the bankruptcy of the Company or APD or a material breach by APD, the
Company or any of the Company's affiliates of any of the agreements related
to the formation and operations of the Joint Venture.
(d) On September 30, 1996, the Company had the duly authorized, issued
and outstanding capitalization set forth in the Prospectus under
"Capitalization" based upon the assumptions set forth therein and would
have had the pro forma as adjusted capitalization set forth therein based
upon the assumptions set forth therein, and the Company is not a party to
or bound by any instrument, agreement or other arrangement (except for
stock options and underlying shares of Common Stock under the Company's
Incentive Stock Option Plan and shares of Common Stock underlying warrants
held by the
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Selling Stockholder described in the Prospectus) providing for it to issue
any capital stock, rights, warrants, options or other securities, except
for this Agreement. The Shares and all other securities issued or issuable
by the Company conform in all material respects to all statements with
respect thereto contained in the Registration Statement and the Prospectus.
All issued and outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and non-assessable
and were not issued in violation of any preemptive rights or other rights
to subscribe for or purchase securities. The Shares have been duly
authorized and, when issued, paid for and delivered in accordance with the
terms hereof, will be validly issued, fully paid and non-assessable and are
not and will not be subject to any preemptive or other rights to subscribe
for or purchase securities; the holders thereof will not be subject to any
liability solely as such holders; and the certificates representing the
Shares will be in due and proper form as previously authorized by the
Company.
(e) The audited and unaudited consolidated financial statements of the
Company and the Wholly-Owned Subsidiaries, together with the notes and
schedules thereto, included or incorporated by reference in the
Registration Statement, each Preliminary Prospectus and the Prospectus
fairly present the financial position and the results of operations,
changes in cash flows and changes in stockholders' equity of the Company at
the respective dates and for the respective periods to which they apply;
and each of such audited consolidated financial statements has been
prepared in conformity with generally accepted accounting principles and
the Rules and Regulations, consistently applied throughout the periods
involved, all adjustments necessary for a fair presentation of results for
such periods have been made and such unaudited consolidated financial
statements have been prepared on a basis substantially consistent with that
of such audited consolidated financial statements. Except as described in
the Prospectus, there has been no change or development involving a
Material Adverse Effect since the date of the consolidated financial
statements included or incorporated by reference in any of the Preliminary
Prospectuses, the Prospectus and the Registration Statement, and the
outstanding debt, the property, both tangible and intangible, and the
business of the Company and each of the Subsidiaries conform in all
respects to the descriptions thereof contained in the Registration
Statement and the Prospectus. The summary and selected financial and
statistical consolidated data included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with the
unaudited and audited consolidated financial statements included or
incorporated by reference therein. The Company's internal accounting
controls are sufficient to cause the Company to comply with the Foreign
Corrupt Practices Act of 1977, as amended. Neither the Company nor any of
the Subsidiaries has any material contingent obligation which is not
disclosed in the Registration Statement.
(f) KPMG Peat Marwick LLP ("KPMG"), whose reports are filed with the
Commission as a part of the Registration Statement, are independent
certified public accountants as required by the Act and the Rules and
Regulations.
(g) (i) The Company and each of the Subsidiaries has paid all federal,
state, local and foreign taxes for which they are respectively liable and
which are due and payable, including, but not limited to, withholding taxes
and amounts payable under Chapters 21 through 24 of the Internal Revenue
Code of 1986, as amended, and (ii) none of the Company or any Subsidiary
has any 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 Shares, (ii) the purchase by the Underwriters of the Shares,
or (iii) the consummation by the Company and the Selling Stockholder of any
of their respective obligations under this Agreement.
(i) The Company and each of the Subsidiaries maintain insurance of the
types and in the amounts which the Company reasonably believes to be
adequate for their respective businesses, all of which insurance is in full
force and effect.
(j) There is no action, suit, proceeding, inquiry, investigation,
litigation or governmental proceeding, domestic or foreign, pending or, to
the Company's knowledge, threatened against (or currently existing or
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previously occurring facts or circumstances that provide a basis for the
same), or involving the properties or business of the Company or any of the
Subsidiaries that (i) questions the validity of the capital stock of the
Company or this Agreement or of any action taken or to be taken by the
Company pursuant to or in connection with this Agreement, (ii) is required
to be disclosed in the Registration Statement that is not so disclosed (and
such proceedings, if any, as are summarized in the Registration Statement
are accurately summarized in all material respects), (iii) would have a
Material Adverse Effect or (iv) relates to or affects the Company or
processes or products which the Company designed, developed, licenses,
uses, manufactures or markets which, if adversely determined, would have a
Material Adverse Effect.
(k) The Company has full legal right, power and authority to enter
into this Agreement and to consummate the transactions provided for herein;
and this Agreement has been duly authorized, executed and delivered by the
Company. This Agreement, assuming it has been duly authorized, executed and
delivered by the Underwriters, 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), and none of the Company's execution or delivery of this
Agreement, its performance hereunder, its consummation of the transactions
contemplated herein or the conduct of its business and that of each of the
Subsidiaries as described in the Registration Statement, the Prospectus and
any amendments or supplements thereto conflicts with or will conflict with
in any material respect or results or will result in any breach or
violation of any of the material terms or provisions of, or constitutes or
will constitute a default under, or result in the creation or imposition of
any lien, charge, claim, encumbrance, pledge, security interest, defect or
other restriction on equity of any kind whatsoever upon, any property or
assets (tangible or intangible) of the Company or any of the Subsidiaries,
pursuant to the terms of (i) the corporate charter, operating agreement 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 any other
agreement or instrument 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 (tangible or intangible) is or may be
subject 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, domestic or foreign, having jurisdiction over the Company
or any of the Subsidiaries or any of their respective activities or
properties.
(l) No consent, approval, authorization or order of, and no filing
with, any court, regulatory body, government agency or other body, domestic
or foreign, is required for the issuance of the Shares pursuant to the
Prospectus and the Registration Statement, or the performance of this
Agreement and the transactions contemplated hereby, except such as have
been or may be obtained under the Act or may be required under state
securities or Blue Sky laws in connection with the Underwriters' purchase
and distribution of the Shares.
(m) All executed agreements or copies of executed agreements filed or
incorporated by reference as exhibits to the Registration Statement to
which the Company or any of the Subsidiaries is a party or by which any of
them may be bound or to which any of their respective assets, properties or
businesses may be subject have been duly and validly authorized, executed
and delivered by the Company and such Subsidiaries, and, assuming due
authorization, execution and delivery by the other parties thereto,
constitute the legal, valid and binding agreements of the Company and such
Subsidiaries enforceable against the Company and such Subsidiaries in
accordance with their respective terms (except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws of general application relating to or affecting enforcement
of creditors' rights and the application of equitable principles in any
action, legal or equitable, and except as rights to indemnity or
contribution may be limited by applicable law). The descriptions in the
Registration Statement of contracts and other
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documents are accurate in all material respects and fairly present the
information required to be shown with respect thereto by Form S-3, and
there are no contracts or other documents that are required by the Act to
be described in the Registration Statement or filed or incorporated by
reference as exhibits to the Registration Statement that are not described
or filed or incorporated by reference as required, and the exhibits that
have been filed or incorporated by reference are complete and correct
copies of the documents of which they purport to be copies.
(n) Subsequent to the respective dates as of which information is set
forth in the Registration Statement and Prospectus, and except as may
otherwise be indicated or contemplated herein or therein, neither the
Company nor any of the Subsidiaries has (i) issued any securities or
incurred any liability or obligation, direct or contingent, for borrowed
money (except for (A) the issuance by the Company of shares of Common Stock
upon the exercise of previously granted stock options, and (B) borrowings
made pursuant to the Company's and the Subsidiaries' existing credit
agreements), (ii) entered into any transaction which would have a Material
Adverse Effect or (iii) declared or paid any dividend or made any other
distribution on or in respect of its capital stock.
(o) No material default exists in the due performance and observance
of any term, covenant or condition of any license, contract, indenture,
mortgage, installment sale agreement, lease, deed of trust, voting trust
agreement, stockholders agreement, note, loan or credit agreement or any
other agreement or instrument evidencing an obligation for borrowed money,
or any other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which the Company or any of the Subsidiaries
may be bound or to which any of the property or assets (tangible or
intangible) of the Company or any of the Subsidiaries is subject or
affected.
(p) The Company and each of the Subsidiaries have a generally
satisfactory employer-employee relationship with their respective employees
and are in compliance with all federal, state, local, and, where
applicable, foreign, laws and regulations respecting employment and
employment practices, terms and conditions of employment and wages and
hours, except where the failure to so comply would not have a Material
Adverse Effect. To the Company's knowledge, there are no pending
investigations involving the Company or any of the Subsidiaries by the
United States Department of Labor or any other governmental agency
responsible for the enforcement of such federal, state, local or foreign
laws and regulations. To the Company's knowledge, 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, and no such strike,
picketing, boycott, dispute, slowdown or stoppage has ever occurred. 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. There are no expired or existing collective bargaining
agreements of the Company or any of the Subsidiaries.
(q) Neither the Company nor any of the Subsidiaries has incurred any
material liability arising under or as a result of the application of the
provisions of the Act.
(r) Neither the Company nor any of the Subsidiaries maintains,
sponsors or contributes to any program or arrangement that is an "employee
pension benefit plan," an "employee welfare benefit plan," or a
"multiemployer plan" (collectively, the "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"). With respect
to any "defined benefit plan," as defined in Section 3(35) of ERISA, that
the Company or any of the Subsidiaries, now or at any time previously,
maintains or contributes to, all applicable federal laws and regulations
have been complied with, except for such instances of noncompliance which,
either singly or in the aggregate, would not have a Material Adverse
Effect. Neither the Company nor any of the Subsidiaries has ever completely
or partially withdrawn from a "multiemployer plan."
(s) The Company is in compliance with all applicable existing federal,
state, local and foreign laws and regulations relating to the protection of
human health or the environment or imposing liability or
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requiring standards of conduct concerning any Hazardous Materials
("Environmental Laws"), except for such instances of noncompliance which,
either singly or in the aggregate, 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 regulated under or within the meaning of any
other Environmental Law.
(t) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(u) The Company has filed a notice with Nasdaq of intent to issue and
has paid the required fee to have the Shares listed on the Nasdaq National
Market.
(v) The Company has not distributed and will not distribute (within
the meaning of Rule 140 of the Rules and Regulations under the Act) any
offering material in connection with the offering and sale of the Shares,
other than the Prospectus, any Preliminary Prospectus, the Registration
Statement and other materials permitted by the Act.
(w) No holders of any securities of the Company or of any options,
warrants or other convertible or exchangeable securities of the Company
exercisable for or convertible or exchangeable for securities of the
Company have the right to include any securities issued by the Company in
the Registration Statement or any registration statement to be filed by the
Company within 180 days of the date hereof or to require the Company to
file a registration statement under the Act during such 180-day period.
(x) The Company has not taken and will not take, directly or
indirectly (except for any action that may be taken by the Underwriters),
any action designed to or which has constituted or which might reasonably
be expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares or otherwise.
(y) Except to the extent disclosed in the Prospectus, (i) the Company
and each of the Subsidiaries own or possess, or have a license or other
right to use, the patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
technology, trademarks, service marks and trade names, together with all
applications for any of the foregoing, currently used or held for use by
them in connection with their respective businesses, (ii) neither the
Company nor any of the Subsidiaries has received any notice of infringement
of or conflict with asserted rights of others with respect to any of the
foregoing and (iii) except as set forth in the Registration Statement,
neither the Company nor any of the Subsidiaries is obligated or under any
liability whatsoever to make any material payments by way of royalties,
fees or otherwise to any owner or licensee of, or other claimant to, any
patent, patent right, license, invention, trademark, service ▇▇▇▇, trade
name, copyright, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), technology or other intangible asset, with respect to the use
thereof or in connection with the conduct of its business or otherwise.
(z) The Company and each of the Subsidiaries have good and marketable
title to, or valid and enforceable leasehold estates in, all items of real
and personal property stated in the Prospectus (including the financial
statements included or incorporated by reference therein) to be owned or
leased by them, free and clear of all liens, charges, claims, encumbrances,
pledges, security interests, defects or
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other restrictions on equity of any kind whatsoever, other than (i) those
referred to in the Prospectus (including such financial statements), (ii)
liens for taxes not yet due and payable and (iii) mechanics, materialmen,
warehouse and other statutory liens arising in the ordinary course of
business which, either individually or in the aggregate, do not have a
Material Adverse Effect.
(aa) Except as described in the Prospectus under "Underwriting" and on
the cover page thereof, there are no claims, payments, issuances,
arrangements or understandings for services in the nature of a finder's or
origination fee with respect to the sale of the Shares hereunder or any
other arrangements, agreements, understandings, payments or issuance with
respect to the Company or any of the Subsidiaries or any of their
respective officers, directors, employees or affiliates that may affect the
Underwriters' compensation, as determined by the National Association of
Securities Dealers, Inc. ("NASD").
(bb) Quotations and last sale data with respect to the Company's
Common Stock are reported on the National Association of Securities Dealers
Automated Quotation National Market System (the "NASDAQ-NMS") under the
symbol "SPTR" and the Company knows of no currently existing reason or set
of facts which is likely to result in the inability or refusal to quote the
Common Stock or the Shares.
(cc) The Company is not an "investment company" or an "affiliated
person" or "promoter" of, or "principal underwriter" for, an "investment
company", as such terms are defined in the Investment Company Act of 1940,
as amended (the "1940 Act"), or subject to regulation under the 1940 Act.
(dd) Any certificate signed by any officer of the Company and
delivered to the Underwriters or to the Underwriters' Counsel (as
hereinafter defined) shall be deemed a representation and warranty by the
Company to the Underwriters as to the matters covered thereby.
(ee) The Company has delivered to the Representatives written
agreements, in form and substance satisfactory to the Representatives, with
each of its directors and executive officers who own Common Stock (each
such person is named in Schedule C hereto), to the effect that, among other
things, such director or officer will not, for a period ending 90 days
after the date of the Prospectus, directly or indirectly, offer, sell,
assign, transfer, encumber, contract to sell, grant an option to purchase
or otherwise sell or dispose of shares of Common Stock or other capital
stock of the Company, any options, rights or warrants to purchase shares of
Common Stock or other capital stock of the Company or any securities
convertible into or exchangeable or exercisable for shares of Common Stock
or other capital stock of the Company now owned by such person or
subsequently acquired (or as to which such person now or hereafter has the
right to direct the disposition of) otherwise than hereunder or with the
prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; provided, however, that such
agreements may contain an exception providing that such officers and
directors during such period may, without such consent, convey shares of
Common Stock (i) by gift to immediate family members to the extent that the
total of the number of shares of Common Stock which are or have been the
subject of all such conveyances by all such officers and directors during
such period is less than or equal to 5,000 shares of Common Stock
(including in such calculation all shares of Common Stock which are the
subject of any transaction pending during such period) and (ii) by will or
intestacy to immediate family members provided in both cases that such
transferees enter into agreements for the benefit of the Underwriters
containing all of the restrictions set forth in this Section 1.I(ee) with
respect to such shares of Common Stock.
II. The Selling Stockholder represents and warrants to, and agrees with,
each of the Underwriters and the Company as of the date hereof and as of the
Closing Date, as defined in Section 2(c) hereof, that:
(a) The Selling Stockholder as of the Closing Date will have valid
marketable title to such of the Shares as are to be sold by the Selling
Stockholder, free and clear of any pledge, lien, security interest,
encumbrance, claim or equitable interest other than pursuant to this
Agreement; the Selling Stockholder has full right, power and authority to
sell, assign, transfer and deliver the Shares to be sold by the Selling
Stockholder hereunder; and upon delivery of such Shares and payment of the
purchase price as herein contemplated, each of the Underwriters will obtain
valid marketable title to the Shares purchased by it from the Selling
Stockholder, free and clear of any pledge, lien, security interest,
encumbrance, claim or equitable interest.
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(b) The Selling Stockholder has duly authorized, executed and
delivered, in the form heretofore furnished to the Representatives, a Power
of Attorney (the "Power of Attorney") appointing ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as attorneys-in-fact (collectively, the "Attorneys" and
individually, an "Attorney") and a Custody Agreement (the "Custody
Agreement") with Hackmyer & Nordlicht named therein, as custodian (the
"Custodian"); each of the Power of Attorney and the Custody Agreement
constitutes a valid and binding agreement of the Selling Stockholder,
enforceable in accordance with its terms, except as the enforcement thereof
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application relating to or affecting
enforcement of creditors' rights and the application of equitable
principles in any action, legal or equitable, and except as rights to
indemnity or contribution may be limited by applicable law; and each of
such Attorneys approved by the Selling Stockholder, acting alone, is
authorized to execute and deliver this Agreement and the certificate
referred to in Section 6(j) hereof on behalf of the Selling Stockholder, to
determine the purchase price to be paid by the several Underwriters to the
Selling Stockholder as provided in Section 2 hereof, to exercise the
Selling Stockholder Warrants (as defined in paragraph (e) of this Section
1.II), to authorize the delivery of the Shares as are to be sold by the
Selling Stockholder under this Agreement and to duly endorse (in blank or
otherwise) the certificate or certificates representing such Shares or a
stock power or powers with respect thereto, to accept payment therefor (net
of the aggregate exercise price for full exercise of the Selling
Stockholder Warrants) and otherwise to act on behalf of the Selling
Stockholder in connection with this Agreement and to pay all expenses in
connection therewith.
(c) All authorizations, approvals, consents and orders necessary for
the execution and delivery on behalf of the Selling Stockholder of the
Power of Attorney and the Custody Agreement, the execution and delivery on
behalf of the Selling Stockholder of this Agreement, the exercise of the
Selling Stockholder Warrants and the sale and delivery of the Shares as are
to be sold by the Selling Stockholder under this Agreement (other than, at
the time of the execution hereof (if the Registration Statement has not yet
been declared effective by the Commission), the issuance of the order of
the Commission declaring the Registration Statement effective and such
authorizations, approvals or consents as may be necessary under state or
other securities or Blue Sky laws) have been obtained and are in full force
and effect; and the Selling Stockholder has full right, power and authority
to enter into and perform its obligations under the Power of Attorney and
the Custody Agreement and this Agreement, to exercise the Selling
Stockholder Warrants and to sell, assign, transfer and deliver the Shares
to be sold by the Selling Stockholder under this Agreement.
(d) Other than the Selling Stockholder Warrants and the Shares to be
sold by the Selling Stockholder under this Agreement, the Selling
Stockholder does not beneficially own any shares of Common Stock or other
capital stock of the Company, any options, rights or warrants to purchase
shares of Common Stock or other capital stock of the Company or any
securities convertible into or exchangeable or exercisable for shares of
Common Stock or other capital stock of the Company, nor does the Selling
Stockholder have any right or arrangement to acquire any capital stock,
options, rights, warrants or other securities of the Company.
(e) A warrant certificate (the "Warrant Certificate") in the name of
the Selling Stockholder representing warrants to purchase 350,000 shares of
Common Stock of the Company at a purchase price of $2.00 per share (the
"Selling Stockholder Warrants"), together with a form of subscription duly
executed in blank and a stock power(s) duly endorsed in blank by the
Selling Stockholder with respect to the 350,000 Shares to be acquired upon
exercise of the Selling Stockholder Warrants, have been, and as of the
Closing Date certificates in negotiable form for all Shares to be sold by
the Selling Stockholder under this Agreement will have been, placed in
custody with the Custodian for the purpose of effecting delivery of such
Shares hereunder.
(f) This Agreement has been duly executed and delivered by or on
behalf of the Selling Stockholder and is a valid and binding agreement of
the Selling Stockholder, enforceable in accordance with its terms, except
as the indemnification and contribution provisions hereunder may be limited
by applicable law and except as the enforcement hereof may be limited by
applicable bankruptcy, insolvency, reorganization,
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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 the performance of this
Agreement and the consummation of the transactions herein contemplated will
not result in a breach of or default under any bond, debenture, note or
other evidence of indebtedness, or any contract, indenture, mortgage, deed
of trust, loan agreement, lease or other agreement or instrument to which
the Selling Stockholder is a party or by which the Selling Stockholder or
any Shares as are to be sold by the Selling Stockholder hereunder may be
bound or result in any violation of any law, order, rule, regulation, writ,
injunction or decree of any court or governmental agency or body.
(g) The Selling Stockholder has not taken and will not take, directly
or indirectly, any action designed to, or which might reasonably be
expected to, cause or result in stabilization or manipulation of the price
of the Common Stock to facilitate the sale or resale of the Shares.
(h) The Selling Stockholder has not distributed and will not
distribute any prospectus or other offering material in connection with the
offering and sale of the Shares.
(i) All information furnished by or on behalf of the Selling
Stockholder relating to the Selling Stockholder and the Shares as are to be
sold by the Selling Stockholder that is contained in the representations
and warranties of the Selling Stockholder in the Selling Stockholder's
Power of Attorney or set forth in the Registration Statement and the
Prospectus is, and on the Closing Date will be, true, correct and complete,
and does not, and on the Closing Date will not, contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(j) The Selling Stockholder will review the Prospectus and will comply
with all agreements and satisfy all conditions on its part to be complied
with or satisfied pursuant to this Agreement on or prior to the Closing
Date, including full exercise of the Selling Stockholder Warrants to
acquire 350,000 Shares, and will advise one of its Attorneys prior to the
Closing Date if any statement to be made on behalf of the Selling
Stockholder in the certificate contemplated by Section 6(j) would be
inaccurate if made of the Closing Date.
(k) The Selling Stockholder does not have any preemptive right,
co-sale right or right of first refusal or other similar right to purchase
any of the Shares that are to be sold by the Company to the Underwriters
pursuant to this Agreement.
2. PURCHASE, SALE AND DELIVERY OF THE SHARES.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, and subject to the terms and conditions herein
set forth, the Company agrees to sell 1,450,000 Firm Shares to the several
Underwriters, the Selling Stockholder agrees to sell to the several
Underwriters the number of Firm Shares set forth on Schedule B opposite the
name of the Selling Stockholder, and each Underwriter, severally and not
jointly, agrees to purchase that number of Firm Shares set forth in
Schedule A opposite its name plus any additional number of Firm Shares that
such Underwriter may become obligated to purchase pursuant to the
provisions of Section 11 hereof.
The Warrant Certificate in the name of the Selling Stockholder
representing the Selling Stockholder Warrants to purchase 350,000 shares of
Common Stock of the Company at a purchase price of $2.00 per share,
together with a form of subscription duly executed in blank and a stock
power(s) duly endorsed in blank by the Selling Stockholder with respect to
the 350,000 Shares to be acquired upon exercise of the Selling Stockholder
Warrants, have been, and as of the Closing Date certificates in negotiable
form for the total number of Shares to be sold hereunder by the Selling
Stockholder will have been, placed in custody with the Custodian pursuant
to the Custody Agreement executed by the Selling Stockholder for delivery
of all Shares to be sold hereunder by the Selling Stockholder. The Selling
Stockholder specifically agrees that the Selling Stockholder Warrants
represented by the Warrant Certificate and the Shares represented by the
certificates held and to be held in custody for the Selling Stockholder
under the Custody Agreement are subject to the interests of the
Underwriters hereunder, that the arrangements
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made by the Selling Stockholder for such custody and the full exercise of
the Selling Stockholder Warrants are to that extent irrevocable, and that
the obligations of the Selling Stockholder hereunder shall not be
terminable by any act or deed of such Selling Stockholder (or by any other
person, firm or corporation including the Company, the Custodian or the
Underwriters) or by operation of law (including without limitation, the
bankruptcy, insolvency, dissolution, liquidation or termination of the
Selling Stockholder) or by the occurrence of any other event or events,
except as set forth in the Custody Agreement. If any such event should
occur prior to the delivery to the Underwriters of the Shares hereunder,
the Selling Stockholder Warrants shall be exercised in full and
certificates for the Shares shall be delivered by the Custodian in
accordance with the terms and conditions of this Agreement as if such event
has not occurred, regardless of whether or not the Custodian shall have
received notice of such event. The Custodian is authorized to receive and
acknowledge receipt of the proceeds of sale of the Shares to be held by it
upon full exercise of the Selling Stockholder Warrants (net of the
aggregate exercise price for the full exercise of the Selling Stockholder
Warrants) against delivery of such Shares.
(b) In addition, on the basis of the representations, warranties,
covenants and agreements herein contained and upon not less than two
business days' notice from the Representatives of the Underwriters, for a
period of thirty days from the effective date of this Agreement, the
Company grants to the Underwriters an option to purchase up to 270,000
Option Shares. Such option is granted solely for the purpose of covering
over-allotments in the sale of Firm Shares and is exercisable as provided
in Section 4 hereof. Option Shares shall be purchased severally for the
account of the Underwriters in proportion to the number of Firm Shares set
forth opposite the name of such Underwriters in Schedule A hereto. (The
time and date of delivery of any of the Option Shares is herein called the
"Option Closing Date.") The respective purchase obligations of each
Underwriter with respect to the Option Shares may be adjusted by the
Representatives so that no Underwriter shall be obligated to purchase
Option Shares other than in 100 share increments. The price of both the
Firm Shares and any Option Shares shall be $ per share.
(c) Payment of the purchase price for, and delivery of certificates
for, the Firm Shares and the Option Shares shall be made on each of the
Closing Date and the Option Closing Date, respectively, at the
Representatives' election by certified or bank cashier's check(s) in New
York Clearing House funds, payable to the order of the Company and (on the
Closing Date) the Custodian, as applicable, at the offices of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, or at such other place
as shall be agreed upon by the Representatives, the Company and (with
respect to the Closing Date) the Selling Stockholder or, if mutually agreed
to by the Company and the Representatives, by wire transfer, upon delivery
of certificates (in form and substance satisfactory to the Representatives)
representing such securities to the Representatives. Delivery and payment
for the Firm Shares shall be made at 10:00 a.m. (Eastern Time) on the third
business day following the public offering, or at such other time and date
as shall be agreed upon by the Representatives and the Company. (The time
and date of payment for and delivery of the Firm Shares is herein called
the "Closing Date.") In the event that any or all of the Option Shares are
purchased by the Underwriters, the date and time at which certificates for
Option Shares are to be delivered shall be determined by the
Representatives and the Company but shall not be earlier than three nor
later than ten full business days after the exercise of such option, nor in
any event prior to the Closing Date. Certificates for the Firm Shares and
the Option Shares, if any, shall be in definitive, fully registered form,
shall bear no restrictive legends and shall be in such denominations and
registered in such names as the Representatives may request in writing at
least two (2) business days prior to the Closing Date or the Option Closing
Date, as the case may be. The certificates for the Firm Shares and the
Option Shares, if any, shall be made available to the Representatives at
such office or such other place as the Representatives may designate for
inspection and packaging not later than 9:30 a.m. (Eastern Time) on the
last business day prior to the Closing Date or the Option Closing Date, as
the case may be.
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3. PUBLIC OFFERING OF THE SHARES.
As soon after the Registration Statement becomes effective as the
Representatives deem advisable, the Underwriters shall make a public offering of
the Shares at the price and upon the other terms set forth in the Prospectus.
4. COVENANTS OF THE COMPANY AND THE SELLING STOCKHOLDER.
I. The Company agrees with each of the Underwriters as follows:
(a) The Company will use its best efforts to cause the Registration
Statement and any amendment thereof, if not effective at the time and date
that this Agreement is executed and delivered by the parties hereto, to
become effective as promptly as possible; it will notify the
Representatives, promptly after it shall receive notice thereof, of the
time when the Registration Statement or any subsequent amendment to the
Registration Statement has become effective or any supplement to the
Prospectus has been filed; if the Company omitted information from the
Registration Statement at the time it was originally declared effective in
reliance upon Rule 430A(a), the Company will provide evidence satisfactory
to the Representatives that the Prospectus contains such information and
has been filed, within the time period prescribed, with the Commission
pursuant to subparagraph (1) or (4) of Rule 424(b) of the Rules and
Regulations under the Act or as part of a post-effective amendment to such
Registration Statement as originally declared effective which is declared
effective by the Commission; if for any reason the filing of the final form
of Prospectus is required under Rule 424(b)(3) of the Rules and Regulations
under the Act, it will provide evidence satisfactory to the Representatives
that the Prospectus contains such information and has been filed with the
Commission within the time period prescribed; it will notify the
Representatives promptly of any request by the Commission for the amending
or supplementing of the Registration Statement or the Prospectus or for
additional information; promptly upon the Representatives' request, it will
prepare and file with the Commission any amendments or supplements to the
Registration Statement or Prospectus which, in the opinion of counsel for
the several Underwriters ("Underwriters' Counsel"), may be necessary or
advisable so as to comply with all applicable laws and regulations
(including, without limitation, Section 11 under the Act and Rule 10b-5
under the Exchange Act) in connection with the distribution of the Shares
by the Underwriters; it will promptly prepare and file with the Commission,
and promptly notify the Representatives of the filing of, any amendments or
supplements to the Registration Statement or Prospectus which may be
necessary to correct any statements or omissions, if, at any time when a
prospectus relating to the Shares is required to be delivered under the
Act, any event shall have occurred as a result of which the Prospectus or
any other prospectus relating to the Shares as then in effect would include
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; in case any Underwriter is
required so as to comply with all applicable laws and regulations
(including, without limitation, Section 11 under the Act and Rule 10b-5
under the Exchange Act) to deliver a prospectus nine months or more after
the effective date of the Registration Statement in connection with the
sale of the Shares, it will prepare promptly upon request, but at the
expense of such Underwriter, such amendment or amendments to the
Registration Statement and such prospectus or prospectuses as may be
necessary to permit compliance with the requirements of Section 10(a)(3) of
the Act; and it will file no amendment or supplement to the Registration
Statement or Prospectus (other than any document required to be filed under
the Exchange Act that upon filing is deemed incorporated therein by
reference) which shall not previously have been submitted to the
Representatives a reasonable time prior to the proposed filing thereof or
to which you shall reasonably object in writing or which is not in
compliance with the Act and the Rules and Regulations under the Act. The
Company will furnish to the Representatives at or prior to the filing
thereof a copy of any document that upon filing is deemed to be
incorporated by reference in the Registration Statement or Prospectus.
(b) The Company will advise the Representatives, promptly after it
shall receive notice or obtain knowledge thereof, of the issuance of any
stop order by the Commission suspending the effectiveness of the
Registration Statement or of the initiation or threat of any proceeding for
that purpose; and it will
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promptly use its best efforts to prevent the issuance of any stop order or
to obtain its withdrawal at the earliest possible moment if such stop order
should be issued.
(c) The Company will use its best efforts to qualify the Shares for
offering and sale under the securities laws of such jurisdictions as the
Representatives may designate and to continue such qualifications in effect
for so long as may be required for purposes of the distribution of the
Shares, except that the Company shall not be required in connection
therewith or as a condition thereof to qualify as a foreign corporation or
to execute a general consent to service of process in any jurisdiction. In
each jurisdiction in which the Shares shall have been qualified as above
provided, the Company will make and file such statements and reports in
each year as are or may be reasonably required by the laws of such
jurisdiction.
(d) The Company will furnish to each of the Underwriters, as soon as
available, copies of the Registration Statement (three of which, to be
delivered to the Representatives, will be manually signed and which will
include all exhibits), each Preliminary Prospectus, the Prospectus and any
amendment or supplements to such documents, including any prospectus
prepared to permit compliance with Section 10(a)(3) of the Act, all in such
quantities as you may from time to time reasonably request.
(e) The Company will make generally available to its stockholders as
soon as practicable, but in any event not later than the 45th day following
the end of the fiscal quarter first occurring after the first anniversary
of the effective date of the Registration Statement, an earning statement
(which will be in reasonable detail but need not be audited) complying with
the provisions of Section 11(a) of the Act and covering a twelve-month
period beginning after the effective date of the Registration Statement.
(f) During a period of five years after the date hereof, the Company
will furnish to its stockholders, to the extent required by applicable laws
or the Rules and Regulations, as soon as practicable after the end of each
respective period, annual reports (including financial statements audited
by independent certified public accountants) and unaudited quarterly
reports of operations for each of the first three quarters of the fiscal
year, and will furnish to you and each of the Underwriters, upon written
request (i) concurrently with furnishing to its stockholders, statements of
operations of the Company for each of the first three quarters in the form
furnished to the Company's stockholders; (ii) concurrently with furnishing
to its stockholders, a balance sheet of the Company as of the end of such
fiscal year, together with statements of operations, cash flows and
stockholders' equity of the Company for such fiscal year, accompanied by a
copy of the certificate or report thereon of independent certified public
accountants; (iii) as soon as they are available, copies of all reports
(financial or other) mailed to stockholders; (iv) as soon as they are
available, copies of all reports and financial statements furnished to or
filled with the Commission, any securities exchange or the NASD; (v) every
material press release and every material news item or article in respect
of the Company or its affairs which was released or prepared by the Company
or any of the Subsidiaries; and (vi) any additional information of a public
nature concerning the Company or any of the Subsidiaries, or their
respective businesses which you may reasonably request. During such five
year period the foregoing financial statements shall be on a consolidated
basis to the extent that the accounts of the Company and the Subsidiaries
are consolidated, and shall be accompanied by similar financial statements
for any Subsidiary which is not so consolidated.
(g) The Company will apply the net proceeds from the sale of the
Shares being sold by it in the manner set forth under the caption "Use of
Proceeds" in the Prospectus.
(h) The Company will maintain a transfer agent and, if necessary under
the jurisdiction of incorporation of the Company, a registrar (which may be
the same entity as the transfer agent) for its Common Stock.
(i) The Company will use its best efforts to cause the transfer agent
for the Common Stock to register the transfer of the Shares upon their
presentation in proper form for transfer by the Selling Stockholder and to
have certificates representing the Shares available to you as required
hereunder; provided, that the Company shall not be required to take any
action unless the Registration Statement is then effective under the Act.
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(j) If the transactions contemplated hereby are not consummated by
reason of any failure, refusal or inability on the part of the Company or
the Selling Stockholder to perform any agreement on its part to be
performed hereunder or to fulfill any condition of the Underwriters'
obligations hereunder, or if the Company shall terminate this Agreement
under Section 10(a), the Company will reimburse the several Underwriters
for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of Underwriters' Counsel) incurred by the Underwriters in
investigating, preparing to market and marketing the Shares.
(k) If at any time during the 90-day period after the Registration
Statement becomes effective, any publication or event relating to or
affecting the Company shall occur as a result of which in your opinion the
market price of the Common Stock has been or is likely to be materially
affected (regardless of whether such publication or event necessitates a
supplement to or amendment of the Prospectus), the Company will, after
written notice from the Representatives advising the Company to the effect
set forth above, forthwith prepare, consult with the Representatives
concerning the substance of, and disseminate a press release or other
public statement, reasonably satisfactory to the Representatives,
responding to or commenting on such publication or event.
(l) For a period ending 180 days from the date of the Prospectus, the
Company will not, without your prior written consent, issue, sell, offer or
agree to sell, or otherwise dispose of, directly or indirectly, any Common
Stock, any options, rights or warrants with respect to any shares of Common
Stock or any securities convertible into, exercisable for or exchangeable
for Common Stock other than the sale of the Shares and the Option Shares to
be sold by the Company hereunder, the Company's issuance of shares of
Common Stock pursuant to the exercise of currently outstanding stock
options and warrants and the grant of options currently authorized under
the Company's 1991 Incentive Stock Option Plan.
II. The Selling Stockholder agrees with each of the Underwriters and the
Company that in order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal Responsibility
Act of 1982 and the Interest and Dividend Tax Compliance Act of 1983 with
respect to the transactions herein contemplated, the Selling Stockholder shall
deliver to you prior to or on the Closing Date a properly completed and executed
United States Treasury Department Form W-9 or Form W-8 (or other applicable form
or statement specified by Treasury Department regulations in lieu thereof).
5. PAYMENT OF EXPENSES.
(a) The Company agrees to pay on each of the Closing Date and the
Option Closing Date (to the extent not paid on the Closing Date) all
expenses and fees (other than fees of Underwriters' Counsel, except as
provided in (iii), (v) and (vii) below) incident to the performance of the
obligations of the Company and the Selling Stockholder under this Agreement
(provided that as between the Company and the Selling Stockholder their
relative obligations to pay shall be in such a manner as the Company and
the Selling Stockholder have agreed or shall agree), 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, filing (including the filing fees of
the Commission), mailing (including postage with respect thereto) and
delivery of the Registration Statement, the Preliminary Prospectuses and
the Prospectus and any amendments and supplements thereto, including the
cost of all copies thereof supplied to the Underwriters in quantities as
hereinabove stated, (iii) all costs and expenses incurred in connection
with the printing, mailing and delivery of this Agreement, the Selected
Dealer Agreements, the Agreement Among Underwriters, Underwriters'
Questionnaires, Underwriters' Powers of Attorney, the Selling Stockholder's
Power of Attorney and Custody Agreement and related documents, including
the cost of all copies thereof supplied to the Underwriters in quantities
as hereinabove stated, (iv) the printing, engraving, issuance and delivery
of the Shares, including any transfer or other taxes payable thereon, (v)
the qualification of the Shares under state or foreign securities or Blue
Sky laws, including the costs or printing and mailing a Blue Sky Memorandum
and any supplements or amendments thereto and disbursements and fees of
Peabody & ▇▇▇▇▇, Underwriters' Counsel, in connection therewith, (vi) fees
and expenses of the Company's transfer agent, (vii) fees and expenses
incurred in connection with the review by the NASD of certain of the
matters set forth in this
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Agreement, and (viii) the fees and expenses incurred in connection with the
listing of the Shares on the NASDAQ-NMS and any other exchange.
(b) If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 6, Section 10(b) or Section 12,
unless the basis upon which the Representatives terminate this Agreement
results from the default or omission of any Underwriter, the Company shall
reimburse and indemnify the Underwriters for all of their reasonable
out-of-pocket expenses (provided that as between the Company and the
Selling Stockholder their relative obligations to pay shall be in such a
manner as the Company and the Selling Stockholder have agreed or shall
agree), including the fees and disbursements of Peabody & ▇▇▇▇▇,
Underwriters' Counsel, and the Blue Sky fees and expenses identified in
Section 5(a)(v) 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 and the
Selling Stockholder herein as of the date hereof and as of the Closing Date and
(with respect to the Company) the Option Closing Date, if any, as if they had
been made on and as of the Closing Date or the Option Closing Date, as the case
may be; the accuracy on and as of the Closing Date or Option Closing Date, if
any, of the statements of officers of the Company made pursuant to the
provisions hereof; and the performance by the Company and the Selling
Stockholder on and as of the Closing Date and (with respect to the Company) the
Option Closing Date, if any, of its respective covenants and obligations
hereunder and to the following further conditions:
(a) The Registration Statement shall have become effective not later
than 5:00 p.m.., Eastern Time, on the date of this Agreement or such later
date and time as shall be consented to in writing by the Representatives,
and, at the Closing Date and the Option Closing Date, if any, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
shall be pending or contemplated by the Commission and any request on the
part of the Commission for additional information shall have been complied
with to the satisfaction of Underwriters' Counsel. If the Company has
elected to rely upon Rule 430A of the Rules and Regulations under the Act,
the price of the Shares and any other 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 under the Act within the prescribed time period,
and, prior to the Closing Date, the Company shall have provided evidence
satisfactory to the Representatives of such timely filing, or a
post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the requirements
of Rule 430A of the Rules and Regulations under the Act.
(b) The Representatives shall not have advised the Company that the
Registration Statement, or any amendment thereto, contains an untrue
statement of fact that, in the Representatives' opinion or in the opinion
of Underwriters' Counsel, is material, or omits to state a fact that, in
the Representatives' opinion or in the opinion of Underwriters' Counsel, 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 that, in the
Representatives' opinion or in the opinion of Underwriters' Counsel, is
material, or omits to state a fact that, in the Representatives' opinion or
in the opinion of Underwriters' Counsel, 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.
(c) On the Closing Date and the Option Closing Date, if any, the
Representatives shall have received the opinion of Peabody & ▇▇▇▇▇,
Underwriters' Counsel, dated the Closing Date and the Option Closing Date,
if any, addressed to the Representatives, to the effect that:
(i) the capital stock of the Company, including, without
limitation, the Common Stock, conforms in all material respects to the
description thereof contained in the Prospectus;
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(ii) the Registration Statement is effective under the Act, and if
applicable, the filing of all pricing and other information has been
timely made in the appropriate form under Rule 430A of the Rules and
Regulations, and, to such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued, and no
proceedings for that purpose have been instituted or threatened by the
Commission. Such counsel shall state that such counsel has participated
in conferences with officers and other representatives of the Company,
counsel for the Company, representatives of the independent certified
public accountants for the Company and the Representatives, at which
conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed, and, although such
counsel is not passing upon and does not assume any responsibility for,
nor has such counsel independently verified, the accuracy, completeness
or fairness of the statements contained in the Registration Statement
and Prospectus (except as to matters referred to in subparagraph (i)
above of this Section 6(c)), no facts have come to the attention of such
counsel (relying as to materiality to a large extent upon the opinions
of officers and other representatives of the Company) that lead them to
believe that either the Registration Statement or any amendment thereto,
at the time such Registration Statement or amendment became effective or
any Preliminary Prospectus (other than information omitted pursuant to
Rule 430A) or the Prospectus or any amendment or supplement thereto as
of the date of such opinion contained or contains any untrue statement
of a material fact or omitted or omits to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading (it being understood that such counsel need express no view
with respect to the financial statements and schedules and other
financial and statistical data included in any Preliminary Prospectus,
the Registration Statement (including any exhibit thereto) or the
Prospectus or any amendment or supplement thereto);
(iii) each of the Preliminary Prospectuses, the Registration
Statement and the Prospectus and any amendments or supplements thereto
(other than the financial statements and schedules and other financial
and statistical data included therein, as to which no opinion need be
rendered) comply as to form in all material respects with the
requirements of the Act and the Rules and Regulations; and
(iv) this Agreement has been duly authorized, executed and
delivered by the Company.
The opinion of Underwriters' Counsel to be dated the Option Closing
Date, if any, may confirm as of the Option Closing Date the statements made
by such counsel in their opinion delivered on the Closing Date.
(d) On the Closing Date and the Option Closing Date, if any, the
Underwriters shall have received the favorable opinion of Hackmyer &
Nordlicht, counsel to the Company, dated the Closing Date and the Option
Closing Date, if any, addressed to the Underwriters and in form and
substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Company and each of the Subsidiaries (A) are duly organized
and validly existing as corporations or, with respect to the Joint
Venture, as a limited liability company, in good standing under the laws
of the State of Delaware, and (B) are duly qualified and licensed and in
good standing as foreign corporations or as a foreign limited liability
company, as the case may be, in each jurisdiction in which their
respective ownership or leasing of any properties or the character of
their respective operations require such qualification or licensing,
except where the failure to be so qualified, considering all such cases
in the aggregate, does not involve a material risk to the businesses,
properties, financial position or results of operations of the Company
and the Subsidiaries taken as a whole; all of the outstanding shares of
capital stock of each of the Wholly-Owned Subsidiaries have been duly
authorized and validly issued and are fully-paid and non-assessable,
and, according to the stock ledger of each Wholly-Owned Subsidiary, all
of the outstanding shares of capital stock of the Wholly-Owned
Subsidiaries are owned of record by the Company; and 50 percent of the
ownership interests in the Joint Venture are owned by the Company and
the other 50 percent of such ownership interests are owned by General
Cable Industries, Inc. To such counsel's
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knowledge, relying solely on the stock ledger, stock transfer ledger and
minute books of the Wholly-Owned Subsidiaries and the Joint Venture and
certificates of the Company's officers, and without making any other
investigation, independent or otherwise, the outstanding shares of
capital stock of the Wholly-Owned Subsidiaries owned by the Company and
the 50 percent ownership interests in the Joint Venture owned by APD are
owned free and clear of all liens, encumbrances and security interests,
except that all of the outstanding shares of capital stock of the
Wholly-Owned Subsidiaries are pledged as security for the Company's
aggregate principal amount of $24 million Senior Secured Notes and $20
million revolving credit facility from Fleet National Bank, and no
options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations into, or
exchange any securities for, any shares of capital stock of or ownership
interests in any of the Subsidiaries are outstanding, except for certain
rights held by GCI to acquire the interests of APD in the Joint Venture
in certain circumstances;
(ii) the Company and each of the Subsidiaries have the corporate or
other power to own, lease and operate their respective properties and to
conduct their respective businesses as described in the Prospectus;
(iii) the authorized and outstanding capital stock of the Company
as of September 30, 1996, is as set forth in the Prospectus under the
heading "Capitalization," subject to the assumptions set forth therein,
and, except as provided for in this Agreement and as described in the
Prospectus, to such counsel's knowledge the Company is not a party to or
bound by any instrument, agreement or other arrangement providing
(except for stock options and underlying shares of Common Stock under
the Company's 1991 Incentive Stock Option Plan and shares of Common
Stock underlying the warrants held by the Selling Stockholder described
in the Prospectus) for it to issue any capital stock, rights, warrants,
options or other securities. All shares of Common Stock of the Company
issued and outstanding on the date hereof prior to the issuance of the
Shares have been duly authorized and validly issued and are fully paid
and non-assessable; and to such counsel's knowledge, none of such shares
were issued in violation of any preemptive right, co-sale right, right
of first refusal or other similar right; and the capital stock of the
Company, including, without limitation, the Common Stock, conforms in
all material respects to the description thereof contained in the
Prospectus. To such counsel's knowledge, the Firm Shares and the Option
Shares are not and will not be subject to any preemptive rights or other
rights to subscribe for or purchase securities. The Firm Shares and the
Option Shares have been duly authorized and, when issued, paid for and
delivered in accordance with the terms hereof, will be validly issued,
fully paid and non-assessable; and the certificates representing the
Shares are in due and proper form. To such counsel's knowledge, no
holders of any securities of the Company or of any options, warrants or
other convertible or exchangeable securities of the Company exercisable
for or convertible or exchangeable for securities of the Company have
the right to include any securities issued by the Company in the
Registration Statement or any registration statement to be filed by the
Company within 180 days of the date hereof or to require the Company to
file a registration statement under the Act during such 180-day period;
(iv) the Registration Statement is effective under the Act, and, if
applicable, the filing of all pricing and other information has been
timely made in the appropriate form under Rule 430A of the Rules and
Regulations under the Act, and, to the best of such counsel's knowledge,
no stop order suspending the effectiveness of the Registration Statement
has been issued, and no proceedings for that purpose have been
instituted or to such counsel's knowledge, threatened by the Commission;
(v) each of the Preliminary Prospectuses, the Registration
Statement and the Prospectus and any amendment or supplement thereto
(other than the financial statements and schedules, related notes and
other financial and statistical data included therein, as to which no
opinion need be rendered) comply as to form in all material respects
with the requirements of the Act and the Rules and Regulations under the
Act; and the documents incorporated by reference in the Registration
Statement and the Prospectus and any amendments or supplements thereto,
when they became effective under the Act or were filed with the
Commission under the Exchange Act, as the case may
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be, complied as to form in all material respects with the requirements
of the Act or the Exchange Act, as applicable, and the Rules and
Regulations. Such counsel shall state that such counsel has participated
in conferences with officers and other representatives of the Company
and representatives of the independent certified public accountants for
the Company, at which conferences the contents of the Registration
Statement and the Prospectus and related matters were discussed, and,
although such counsel is not passing upon and does not assume any
responsibility for, nor has such counsel independently verified, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus (except as to matters referred to
in subparagraph (xii) (insofar as they relate to statements in the
Prospectus under the heading "DESCRIPTION OF SECURITIES") and in the
third clause of the second sentence of subparagraph (iii) of this
Section 6(d)), no facts have come to the attention of such counsel that
lead them to believe that either the Registration Statement or any
amendment thereto, at the time such Registration Statement or amendment
became effective or any Preliminary Prospectus (other than information
omitted pursuant to Rule 430A) or the Prospectus or any amendment or
supplement thereto as of the date of such opinion contained or contains
any untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; further, no facts have come to the
attention of such counsel to cause it to believe that any document
incorporated by reference in the Registration Statement, the Prospectus,
any amendment or supplement thereto or any Preliminary Prospectus, as of
the date of the filing thereof with the Commission, contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading and no facts have come to the attention of such
counsel that cause it to believe that on the Closing Date or the Option
Closing Date, as the case may be, such incorporated documents taken as a
whole contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading (it being understood that such counsel
need express no view with respect to the financial statements and
schedules, related notes, and other financial and statistical data
included or incorporated by reference in any Preliminary Prospectus, the
Registration Statement (including any exhibit thereto) or the Prospectus
or any amendment or supplement thereto). In addition, such counsel shall
state that they know of no contracts, leases or other documents of a
character required to be described in the Registration Statement or
Prospectus or to be filed or incorporated by reference as exhibits to
the Registration Statement which are not described or filed or
incorporated by reference as required;
(vi) (A) to such counsel's knowledge, there is not pending or
threatened against the Company or any of the Subsidiaries, or involving
any of their respective properties or businesses, any action, suit,
proceeding, inquiry, investigation, litigation or governmental
proceeding, domestic or foreign, that (x) is required to be disclosed in
the Registration Statement and is not so disclosed (and such proceedings
as are summarized in the Registration Statement are accurately
summarized in all respects), (y) questions the validity of the capital
stock of the Company or this Agreement or of any action taken or to be
taken by the Company pursuant to or in connection with this Agreement,
or (z) except as may be disclosed in the Registration Statement, may
have a Material Adverse Effect; and (B) no statute or regulation or
legal or governmental proceeding required to be described in the
Prospectus is not described as required;
(vii) such counsel is not aware of any claim of infringement on the
part of any third party of the patents or patent applications of the
Company or any of the Subsidiaries, patents licensed to the Company or
any of the Subsidiaries or trademarks, trade secrets, know-how or other
proprietary rights of the Company or any of the Subsidiaries;
(viii) the Company has full legal right, power and authority to
enter into this Agreement and to consummate the transactions provided
for herein; and this Agreement has been duly authorized, executed and
delivered by the Company. None of the Company's execution or delivery of
this Agreement, its performance hereunder or its consummation of the
transactions contemplated herein conflicts with or will conflict with or
results or will result in any breach or violation of any of the
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material terms or provisions of, or constitutes or will constitute a
default under, or result in the creation or imposition of any lien,
charge, claim, encumbrance, pledge, security interest, defect or other
restriction on equity of any kind whatsoever upon, any property or
assets (tangible or intangible) of the Company or any of the
Subsidiaries pursuant to the terms of (A) the corporate charter,
operating agreement or by-laws or other governing instrument of the
Company or any of the Subsidiaries, (B) any voting trust agreement or
any stockholders agreement, or any indenture, mortgage, deed of trust,
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 (tangible or intangible) is or
may be subject, or (C) any statute, rule or regulation or, to 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, the
violation of which would have a Material Adverse Effect;
(ix) no consent, approval, authorization or order, and no filing
with, any federal or state court, regulatory body, government agency
or other body (other than such as have been effected under the Act and
such as may be required under Blue Sky or state securities laws or the
rules of the NASD in connection with the purchase and distribution of
the Shares by the Underwriters, as to which no opinion need be
rendered) is required in connection with the issuance of the Shares
pursuant to the Prospectus and the Registration Statement, the
performance of this Agreement and the transactions contemplated
hereby;
(x) neither the Company nor any of the Subsidiaries is in
violation of any term or provision of its corporate charter, operating
agreement, or by-laws or other governing instrument;
(xi) the statements in the Prospectus under the captions
"BUSINESS-Proprietary Rights" and "DESCRIPTION OF SECURITIES" have
been reviewed by such counsel, and insofar as they refer to statements
of law, descriptions of statutes, contracts, licenses, rules or
regulations or legal conclusions, are correct in all material
respects;
(xii) the Company is not an "investment company" or an
"affiliated person" or "promoter" of, or "principal underwriter" for,
an "investment company," as defined in the 1940 Act or subject to
regulation under such Act; and
(xiii) to such counsel's knowledge, no person, corporation,
trust, partnership, association or other entity has the right to
include and/or register any securities of the Company in the
Registration Statement or to require the Company to file any
registration statement.
In rendering such opinions, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates and written
statements of responsible officers of the Company and the Subsidiaries 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 and may rely on opinions of ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇, patent counsel of the Company, for matters relating to
intellectual property provided that such opinion shall be delivered to
Underwriters' Counsel.
For purposes of any of the opinions to be rendered by such counsel
pursuant to this subsection (d) of Section 6, the term "to such counsel's
knowledge" shall mean, to the extent that such opinion relates to a factual
issue or to a mixed questions of law and fact, that after examination of
documents in such counsel's files and considering the actual knowledge of
the individual attorneys in such counsel's firm who have given substantive
attention to matters on behalf of the Company or his or her role as
counsel, such counsel finds no reason to believe that any of such opinions
is factually incorrect, and that no further investigation, independent or
otherwise, has been undertaken by such counsel.
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The opinion of Hackmyer & Nordlicht, counsel to the Company, to be
dated the Option Closing Date, if any, may confirm as of the Option Closing
Date the statements made by such counsel in their opinion delivered on the
Closing Date.
(e) On the Closing Date, the Underwriters shall have received the
favorable opinion of , counsel to the Selling Stockholder,
dated the Closing Date, addressed to the Underwriters and in form and
substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the Power of Attorney and the Custody Agreement of the Selling
Stockholder have been duly authorized, executed and delivered on behalf
of the Selling Stockholder and are valid instruments legally sufficient
for the purposes intended;
(ii) the Selling Stockholder has full right, power and authority to
enter into and to perform its obligations under this Agreement and to
sell, transfer, assign and deliver the Shares to be sold by the Selling
Stockholder hereunder;
(iii) this Agreement has been duly authorized, executed and
delivered on behalf of the Selling Stockholder;
(iv) upon the delivery of and payment for the Shares as
contemplated in this Agreement, and upon registration of the Shares in
the names of the Underwriters, the Underwriters will have acquired good
and valid title to the Shares being sold by the Selling Stockholder free
of any pledge, lien, security interest, encumbrance, claim or equitable
interest, including any lien in favor of the Company or any restriction
on transfer imposed by the Company; and the owner of the Shares being
sold by the Selling Stockholder hereunder, if other than the Selling
Stockholder, is precluded from asserting against the Underwriters the
ineffectiveness of any unauthorized endorsement.
(f) On the Closing Date and the Option Closing Date, if any, the
Underwriters shall have received the favorable opinion of ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇, patent counsel to the Company, dated the Closing Date and the
Option Closing Date, if any, addressed to the Underwriters and in form and
substance satisfactory to Underwriters' Counsel, to the effect that:
(i) the License Agreement (the "Corning Agreement") dated as of
January 1, 1991 between Corning Incorporated ("Corning") and the Company
licenses the Company to make, use and sell optical fiber under U.S.
patents owned by Corning during the term of the Corning Agreement which
relate to optical fiber and which have filing dates prior to January 1,
1996.
(ii) the Patent License Agreement between Lucent Technologies, Inc.
("Lucent") (successor to American Telephone and Telegraph Company and
Western Electric Company, Incorporated (collectively, "AT&T")) and the
Company dated August 15, 1981 licenses the Company to make, use and sell
optical fiber and optical fiber cables under U.S. and foreign patents
issued at any time for inventions made prior to August 14, 1986 and
owned or controlled by AT&T or its subsidiaries.
(iii) the Company has been granted "have made" license rights such
that the Company may manufacture optical fiber for Corning and Lucent
using its current processes without accruing royalties to Corning or
Lucent and without regard to quantity limitations set forth in the
Corning Agreement.
(iv) based on assumptions set forth in the opinion, the Company's
manufacture, use and sale of single-mode optical fiber has not been
restricted by U.S. patents of Corning or subject to the Corning
Agreement since 1993 and the Company's manufacture, use and sale of
multimode optical fiber will not be restricted by U.S. patents of
Corning or be subject to the Corning Agreement after 1999. A certain
identified U.S. patent of Lucent relating to Company's single-mode and
multimode fiber expires in 1997.
(v) to the extent not disclosed in the Prospectus, the Company is
listed in the records of the U.S. Patent Office and Trademark Office as
the holder of record of the patents and patent applications set forth in
a schedule to such opinion, and such counsel knows of no unrecorded
claims
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of third parties to any ownership interest or lien with respect to any
of such patents or patent applications;
(vi) the statements in the Prospectus under the caption
"BUSINESS-Proprietary Rights" (the "Intellectual Property Portion"), to
the best of such counsel's knowledge, insofar as such statements
constitute a summary of the Company's patents and patent applications,
the expiration of certain patents owned by Corning and Lucent, licenses
granted to the Company to make, use and sell optical fiber, "have made"
license rights granted to the Company by Corning and Lucent and sales to
the United States government, are in all material respects accurate
summaries and fairly summarize such matters in all material respects,
insofar as they refer to legal matters, documents and proceedings
relating to such matters;
(vii) such counsel is not aware that any of the Company's patents
is invalid or that any patent issued in respect of any of the Company's
patent applications would be invalid;
(viii) such counsel is not aware that any valid patent, including
any patent relating to the manufacture of optical fiber or optical fiber
cable, is infringed by the activities of the Company described in the
Prospectus;
(ix) such counsel is not aware of any material defects or form in
the preparation or filing of patent applications on behalf of the
Company. Such patent applications have been diligently pursued by the
Company;
(x) such counsel is not aware of any pending or threatened action,
suit, proceeding or claim by others that the Company is infringing or
otherwise violating any patents, trademarks, trade secrets, know-how or
other proprietary rights;
(xi) except as specifically disclosed in the Prospectus, such
counsel is not aware of any pending or threatened action, suit,
proceeding, or claim by others challenging the validity or scope of the
patent applications or the patents held by or licensed to the Company;
(xii) according to such counsel's records, the Company is listed or
is in the process of being listed in the records of the appropriate
foreign office as the sole holder of record of the foreign patents and
foreign patent applications set forth in a schedule of such opinion.
Such counsel knows of no claims of third parties to any ownership
interest or lien with respect to any of such patents or patent
applications.
Such counsel shall also state that since at least 1982 it has
represented the Company in the prosecution of all of its patents and that
such counsel has participated in conferences with employees of the Company
at which the Company's patents, patent applications and the contents of the
Intellectual Property Portion of the Registration Statement 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 (except as to matters referred to
in subparagraph (vi) of this Section 6(f)), on the basis of such
conferences and such representation of the Company, nothing has come to the
attention of such counsel which leads them to believe that the Intellectual
Property Portion of the Registration Statement or any amendment thereto, at
the time such Registration Statement or amendment became effective, and
such portion of the Prospectus or any amendment or supplement thereto, on
the date such Prospectus or amendment or supplement thereto was filed
pursuant to Rule 424(b), and such portion of the Registration Statement and
the Prospectus, or any amendment or supplement thereto, as of the date of
such opinion contained or contains any untrue statement of a material fact
or omitted or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
For purposes of any of the opinions to be rendered by such counsel
pursuant to this subsection (f) of Section 6, the term "to the best of such
counsel's knowledge" shall mean, to the extent that such opinion relates to
a factual issue or to a mixed questions of law and fact, that after
examination of documents in such counsel's files and considering the actual
knowledge of the individual attorneys in such counsel's
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firm who have given substantive attention to matters on behalf of the
Company, such counsel finds no reason to believe that any of such opinions
is factually incorrect.
The favorable opinion of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, patent counsel to the
Company, to be dated the Option Closing Date, if any, may confirm as of the
Option Closing Date the statements made in their opinion delivered on the
Closing Date.
(g) On or prior to each of the Closing Date and the Option Closing
Date, if any, Underwriters' Counsel shall have been furnished such
customary documents, certificates and opinions as they may reasonably
require for the purpose of enabling them to review or pass upon the matters
referred to in subsection (c) of this Section 6, or in order to evidence
the accuracy, completeness or satisfaction of any of the representations,
warranties or conditions of the Company, the Selling Stockholder or herein
contained.
(h) Prior to each of the Closing Date and the Option Closing Date, if
any, (i) from the respective dates as of which information is set forth in
the Registration Statement and Prospectus, there shall have been no
developments that, individually or in the aggregate, have had a Material
Adverse Effect; (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, that, individually or in the aggregate, has had a Material
Adverse Effect; (iii) neither the Company nor any of the Subsidiaries shall
be in default under any provision of any instrument relating to any of
their respective 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 Registration Statement and Prospectus
(including the exhibits to the Registration Statement); (v) no action, suit
or proceeding, at law or in equity, shall have been pending or, to the
knowledge of the Company, threatened 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 would have a Material Adverse Effect; and (vi) no stop order shall
have been issued under the Act and no proceedings therefor shall have been
initiated, or, to the Company's knowledge, threatened or contemplated by
the Commission.
(i) At each of the Closing Date and the Option Closing Date, if any,
the Underwriters shall have received a certificate of the Company signed by
the principal executive officer and by the chief financial officer of the
Company, dated the Closing Date or Option Closing Date, as the case may be,
to the effect that each of such persons has carefully examined the
Registration Statement, the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct, as if made on and as of the Closing Date
or the Option Closing Date, as the case may be, and the Company has
complied with all agreements and covenants and satisfied all conditions
contained in this Agreement on its part to be performed or satisfied at
or prior to such Closing Date or Option Closing Date, as the case may
be;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of such officer, are
threatened under the Act;
(iii) none of the Registration Statement, the Prospectus nor any
amendment or supplement thereto includes any untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and
neither the Preliminary Prospectus or any supplement thereto included
any untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and
(iv) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, neither the
Company nor any of the Subsidiaries have incurred up to
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and including the Closing Date or the Option Closing Date, as the case
may be, other than in the ordinary course of their respective
businesses, any material liabilities or obligations, direct or
contingent; the Company has not paid or declared any dividends or other
distributions on its capital stock; neither the Company nor any of the
Subsidiaries has entered into any transactions not in the ordinary
course of business; and there has not been any material change in the
capital stock or long-term debt or any material increase in the
short-term borrowings of the Company or any of the Subsidiaries; neither
the Company nor any of the Subsidiaries has sustained any material loss
or damage to its property or assets, whether or not insured; there is no
litigation that is pending or, to the knowledge of such officers,
threatened against the Company or any of the Subsidiaries that is
required to be set forth in an amended or supplemented Prospectus that
has not been set forth; and there has occurred no event required to be
set forth in an amended or supplemented Prospectus that has not been set
forth.
References to the Registration Statement and the Prospectus in this
subsection (i) are to such documents as amended and supplemented at the
date of such certificate.
(j) At the Closing Date, the Underwriters shall have received a
certificate of the Selling Stockholder dated the Closing Date to the effect
that the representations and warranties of the Selling Stockholder in this
Agreement are true and correct, as if made on and as of the Closing Date,
and the Selling Stockholder has complied with all agreements and covenants
and satisfied all conditions contained in this Agreement on its part to be
performed or satisfied at or prior to the Closing Date.
(k) On the date of this Agreement, the Representatives shall have
received a letter in form and substance satisfactory to the Underwriters
and the Underwriters' Counsel addressed to the Underwriters and dated the
date of this Agreement from KPMG and signed by such firm with respect to
such matters as shall have been specified to such firm by the
Representatives prior to the date hereof. At the Closing Date and the
Option Closing Date, if any, the Underwriters shall have received from KPMG
a letter, dated as of the Closing Date or the Option Closing Date, as the
case may be, reaffirming the statements made in the letter furnished by
KPMG to the Underwriters concurrently with the execution of this Agreement,
each such reaffirming letter to be in form and substance satisfactory to
the Underwriters and the Underwriters' Counsel.
(l) On each of the Closing Date and the Option Closing Date, if any,
there shall have been duly tendered to the Representatives for the several
Underwriters' accounts the appropriate number of Shares.
(m) No order suspending the sale of the Shares in any jurisdiction
designated by the Representatives pursuant to subsection (c) of Section 4
hereof shall have been issued on either the Closing Date or the Option
Closing Date, if any, and no proceedings for that purpose shall have been
instituted or to the knowledge of the Representatives or the Company shall
be contemplated.
(n) The Underwriters shall have received the written agreements of the
officers and directors referred to in Section 1.I(ee) hereof.
(o) The Shares delivered on the Closing Date or the Option Closing
Date shall have been duly listed, subject to notice of official issuance,
on the Nasdaq National Market.
If any condition to the Underwriters' obligations thereunder 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 Representatives may
terminate this Agreement or, if the Representatives so elect, they may
waive any such conditions that have not been fulfilled or extend the time
for their fulfillment.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
specifically including but not limited to losses, claims, damages or
liabilities related to negligence on the part of any Underwriter, insofar
as such losses, claims, damages or liabilities (or actions
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in respect thereof) arise out of or are based upon any breach of any
representation, warranty, agreement or covenant of the Company herein
contained or any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were
made, not misleading; and agrees to reimburse each Underwriter for any
legal or other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, such
Preliminary Prospectus or the Prospectus, or any such amendment or
supplement, in reliance upon and in strict conformity with written
information furnished with respect to any Underwriter by such Underwriter
expressly for use in the Registration Statement, any Preliminary Prospectus
or the Prospectus or any amendment or supplement thereto, provided that
such written information or omissions only pertain to disclosures in the
Registration Statement, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto directly relating to the transactions
effected by the Underwriters in connection with this offering, and provided
further that the foregoing indemnity with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter) if such untrue
statement or omission or alleged untrue statement or omission made in any
Preliminary Prospectus is eliminated or remedied in the Prospectus and a
copy of the Prospectus has not been furnished to the person asserting any
such loss, claim, damage or liability at or prior to the written
confirmation of the sale of such Shares to such person.
The indemnity agreement in this Section 7(a) shall extend upon the
same terms and conditions to, and shall inure to the benefit of each
person, if any, who controls any Underwriter within the meaning of the Act.
This indemnity agreement shall be in addition to any liabilities which the
Company or the Selling Stockholder may otherwise have.
(b) The Selling Stockholder agrees to indemnify and hold harmless each
Underwriter to the same extent as the foregoing indemnity from the Company
to the Underwriters but only with respect to statements or omissions, if
any, made in the Registration Statement, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto made in reliance upon,
and in strict conformity with, written information furnished with respect
to the Selling Stockholder by the Selling Stockholder expressly for use in
the Registration Statement, any Preliminary Prospectus or the Prospectus or
any amendment or supplement thereto, provided that such written information
or omissions only pertain to disclosures in the Registration Statement, any
Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto directly relating to the transactions effected by the Selling
Stockholder in connection with this offering.
The indemnity agreement in this Section 7(b) shall extend upon the
same terms and conditions to, and shall inure to the benefit of each
person, if any, who controls any Underwriter within the meaning of the Act.
This indemnity agreement shall be in addition to any liabilities which the
Company or the Selling Stockholder may otherwise have.
(c) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Company and the Selling Stockholder to the same
extent as the foregoing indemnity from the Company to the Underwriters but
only with respect to statements or omissions, if any, made in the
Registration Statement, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto made in reliance upon, and in strict
conformity with, written information furnished with respect to any
Underwriter by such Underwriter expressly for use in the Registration
Statement, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, provided that such written information or omissions
only pertain to disclosures in the Registration Statement, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto
directly relating to the transactions effected by the Underwriters in
connection with this offering.
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The indemnity agreement in this Section 7(c) shall extend upon the
same terms and conditions to, and shall inure to the benefit of, each
officer and director of the Company who has signed the Registration
Statement, the Selling Stockholder and each person, if any, who controls
the Company or the Selling Stockholder within the meaning of the Act. This
indemnity agreement shall be in addition to any liabilities which each
Underwriter may otherwise have. For purposes of this Section 7, the Company
and the Selling Stockholder acknowledge that the statements with respect to
the public offering of the Shares set forth under the heading
"UNDERWRITING" and the stabilization legend in the Prospectus and the last
paragraph on the outside front cover page of the Prospectus have been
furnished by the Underwriters expressly for use therein and constitute the
only information furnished in writing by or on behalf of the Underwriters
for inclusion in the Prospectus.
(d) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party under this Section 7 (except to the extent that the omissions of such
notice causes actual prejudice to the indemnifying party), or otherwise
than under this Section 7. In case any such action is brought against any
indemnified party, and it notified the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the indemnified
parties and the indemnifying party and counsel for the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel reasonably
satisfactory to the indemnifying party or parties to assume such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from
the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified
party under this Section 7 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel approved by the indemnifying
party, representing all the indemnified parties under Section 7(a), 7(b) or
7(c) hereof who are parties to such action), (ii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action, or (iii) the indemnifying party has authorized
the employment of counsel for the indemnified party at the expense of the
indemnifying party. In no event shall any indemnifying party be liable in
respect of any amounts paid in settlement of any action unless the
indemnifying party shall have approved the terms of such settlement;
provided however that such consent shall not be unreasonably withheld.
(e) In order to provide for just and equitable contribution in any
action in which a claim for indemnification is made 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 this Section 7 provides for indemnification in such case, all the
parties hereto shall contribute to the aggregate loses, claims, damages or
liabilities to which they may be subject (after contribution from others)
in such proportion so that, except as set forth in Section 7(f) hereof, the
Underwriters are responsible pro rata for the portion represented by the
percentage that the underwriting discount bears to the initial public
offering price, and the Company and the Selling Stockholder are responsible
for the remaining portion, provided, however, that (i) no Underwriter shall
be required to contribute any amount in excess of the underwriting discount
applicable to the Shares purchased by such Underwriter, and (ii)
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no person guilty of a fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to a contribution from any
person who is not guilty of such fraudulent misrepresentation. This
subsection (e) shall not be operative as to any Underwriter to the extent
that the Company or the Selling Stockholder has received indemnity payments
from such Underwriter under this Section 7 which are not required to be
returned pursuant to the order of any court of competent jurisdiction.
(f) The liability of the Selling Stockholder under the representations
and warranties contained in Section 1 hereof and under the indemnity
agreements contained in the provisions of this Section 7 shall be limited
in the aggregate to an amount equal to the initial public offering price of
the Shares sold by the Selling Stockholder to the Underwriters minus the
amount of the underwriting discount paid thereon to the Underwriters by the
Selling Stockholder. The Company and the Selling Stockholder may agree, as
between themselves and without limiting the rights of the Underwriters
under this Agreement, as to the respective amounts of such liability for
which they each shall be responsible.
(g) The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof including without limitation
the provisions of this Section 7, and are fully informed regarding such
provisions. They further acknowledge that the provisions of this Section 7
fairly allocate the risks in light of the ability of the parties to
investigate the Company and its business in order to assure that adequate
disclosure is made in the Registration Statement and Prospectus as required
by the Act and the Exchange Act. The parties are advised that federal or
state public policy, as interpreted by the courts in certain jurisdictions,
may be contrary to certain of the provisions of this Section 7, and the
parties hereto hereby expressly waive and relinquish any right or ability
to assert such public policy as a defense to a claim under this Section 7
and further agree not to attempt to assert any such defense.
8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement
or contained in certificates of officers of the Company submitted pursuant
hereto shall be deemed to be representations, warranties and agreements at the
Closing Date and the Option Closing Date, as the case may be, and such
representations, warranties and agreements, and the indemnity and contribution
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, the Selling Stockholder or any controlling person, and
shall survive termination of this Agreement or the issuance or sale and delivery
of the Shares to the Underwriters.
9. EFFECTIVE DATE.
This Agreement shall become effective at 9:30 a.m., Eastern Time, on the
date hereof, or at such earlier time after the Registration Statement becomes
effective as the Representatives, in their sole discretion, shall release the
Shares for the sale to the public, provided, however that the provisions of
Sections 5, 7 and 9 of this Agreement shall at all times be effective. For
purposes of this Section 9, the Shares to be purchased hereunder shall be deemed
to have been so released upon the earlier of dispatch by the Representatives of
telegrams to securities dealers releasing such Shares for offering or the
release by the Representatives for publication of the first newspaper
advertisement that is subsequently published relating to the Shares.
10. TERMINATION.
(a) Subject to subsection (d) of this Section 10, the Company may at
any time before this Agreement becomes effective in accordance with Section
9, terminate this Agreement.
(b) Subject to subsection (d) of this Section 10, the Representatives
shall have the right to terminate this Agreement, (i) if any calamitous
domestic or international event or act or occurrence has materially
disrupted, or in the Representatives' opinion will in the immediate future
materially disrupt, general securities markets in the United States; or
(ii) if trading on the New York Stock Exchange, the American Stock Exchange
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
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been required on the over-the-counter market by the NASD or by order of the
Commission or any other government authority having jurisdiction; or (iii)
if the United States shall have become involved in a war or major
hostilities; or (iv) if a banking moratorium has been declared by New York
State, the Commonwealth of Massachusetts or any federal authority; or (v)
if a moratorium in foreign exchange trading has been declared; or (vi) if
the Company shall have sustained a loss material or substantial to the
Company by fire, flood, accident, hurricane, earthquake, theft, sabotage or
other calamity or malicious act that, whether or not such loss shall have
been insured, will, in the Representatives' reasonable opinion, make it
inadvisable to proceed with the delivery of the Shares; or (vii) if there
shall have been a Material Adverse Effect.
(c) If any party hereto elects to prevent this Agreement from becoming
effective or to terminate this Agreement as provided in this Section 10,
such party shall notify, on the same day as such election is made, the
other parties hereto in accordance with the provisions of Section 13
hereof.
(d) Notwithstanding any contrary provision contained in this
Agreement, any election hereunder or any termination of this Agreement
(including, without limitation, pursuant to Sections 11 and 12 hereof), and
whether or not this Agreement is otherwise carried out, the provisions of
Sections 5, 7 and 9 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 Shares that it or
they are obligated to purchase on such date under this Agreement (the "Defaulted
Securities"), the Representatives shall use their best efforts within 24 hours
thereafter, to make arrangements 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 Representatives shall not have
completed such arrangements within such 24 hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
total number of Firm Shares to be purchased on such date, the
non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the total
number of Firm Shares and arrangements satisfactory to the Representatives
for the purchase of the Defaulted Securities are not made within 36 hours,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriters. The Company or the Selling Stockholder may
assist the Representatives in making such arrangements by procuring another
party satisfactory to the Representatives to purchase the Defaulted
Securities on the terms set forth herein.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default by such Underwriter under
this Agreement.
In the event of any such default that does not result in a termination of
this Agreement, the Representatives 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 OR THE SELLING STOCKHOLDER.
If the Company or the Selling Stockholder, as applicable, shall fail at the
Closing Date or the Option Closing Date, as applicable, to sell and deliver the
number of Shares that it is obligated to sell hereunder on such date, then this
Agreement shall terminate (or, if such default shall occur with respect to any
Option Shares to be purchased on the Option Closing Date, the Underwriters may
at the Representatives' option, by
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notice from the Representatives to the Company, terminate the Underwriters'
several obligations to purchase Shares from the Company on such date) without
any liability on the part of any non-defaulting party other than pursuant to
Section 5 and Section 7 hereof. No action taken pursuant to this Section shall
relieve the Company or the Selling Stockholder from liability, if any, in
respect of such default.
13. NOTICES.
All notices and communications hereunder may be mailed or transmitted by
any standard form of telecommunication and, except as herein otherwise
specifically provided, shall be in writing and shall be deemed to have been duly
given when delivered to a notice party hereto at the address specified herein or
at the address subsequently communicated in writing to the notice parties.
Notices to the Underwriters shall be directed to the Representatives c/o ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Incorporated, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention
▇▇▇▇ ▇. ▇▇▇▇, Senior Vice President, with a copy to Peabody & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. Notices to
the Company shall be directed to SpecTran Corporation, ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman, with a copy to
Hackmyer & Nordlicht, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq. Notices to the Selling Stockholder shall be
directed to ▇▇▇▇▇ & Company Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, Attention ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq. In each case a notice party may
change its address for notice hereunder by a written communication to the other
notice parties.
14. PARTIES.
This Agreement shall inure solely to the benefit of and shall be binding
upon, the Underwriters, the Selling Stockholder, 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 Shares from any Underwriter 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 COMMONWEALTH OF MASSACHUSETTS WITHOUT GIVING
EFFECT TO THE CHOICE OF LAW OR CONFLICT OF LAWS PRINCIPLES.
16. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, 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.
This Agreement and the Schedules hereto contain the entire agreement
between the parties hereto in connection with the subject matter hereof and
supersede all prior agreements, written or oral, with respect to such subject
matter.
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18. AMENDMENT.
This Agreement and the Schedules hereto may not be amended, modified or
altered without the written agreement of the Company, the Selling Stockholder
and the Representatives.
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,
SPECTRAN CORPORATION
By:.................................
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
TITLE: CHAIRMAN
SELLING STOCKHOLDER LISTED ON
SCHEDULE B HERETO
By:.................................
, ATTORNEY-IN-FACT
CONFIRMED AND ACCEPTED AS OF
THE DATE FIRST ABOVE WRITTEN
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ INCORPORATED
By:.................................
Title:..............................
For themselves and on behalf of and
as the
Representatives of the other
Underwriters
named in Schedule A hereto.
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SCHEDULE A
NUMBER OF
NAME FIRM SHARES
--------------------------------------------------------------------------------- -----------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Incorporated......................................................
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc..................................................
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SCHEDULE B
NUMBER OF
NAME FIRM SHARES
--------------------------------------------------------------------------------- -----------
▇▇▇▇▇ & Company Incorporated..................................................... 350,000
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SCHEDULE C
NAME
---------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇
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