Shares of Common Stock EYETEL IMAGING, INC. UNDERWRITING AGREEMENT
___________________
Shares of Common Stock
EYETEL
IMAGING, INC.
__________
__, 2007
STANFORD
GROUP COMPANY
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇,
▇▇
▇▇▇▇▇
As
Representative of the Underwriters
named
on Schedule
A
hereto
Ladies
and Gentlemen:
EyeTel
Imaging, Inc., a corporation organized and existing under the laws of Delaware
(the “Company”),
confirms its agreement, subject to the terms and conditions set forth herein,
with each of the underwriters listed on Schedule
A hereto
(collectively, the “Underwriters”),
for
whom Stanford Group Company is acting as representative (in such capacity,
the
“Representative”),
to
sell and issue to the Underwriters an aggregate of _______________ shares (the
“Firm
Shares”)
of its
common stock, $0.001 par value per share (the “Common
Stock”).
In
addition, the Company proposes to sell to the Underwriters, upon the terms
and
conditions set forth in Section 2 hereof, an aggregate additional amount of
__________ shares of Common Stock, representing up to 15% of the Firm Shares
(the “Additional
Shares”).
The
Firm Shares and any Additional Shares purchased by the Underwriters are referred
to herein as the “Shares.”
The
Shares are more fully described in the Registration Statement and Prospectus
referred to below.
In
addition, the Company shall, at the Closing (as defined herein) issue to the
Representative a warrant (the “Representative’s
Warrant”)
to
purchase up to an aggregate amount of ________ shares of Common Stock
(representing 8% of the number of Shares sold in the Offering, but excluding
the
Stockholder Shares (as defined in Section 5(a), on which no warrant coverage
will be granted). The Shares and the Representative’s Warrant are more fully
described in the Registration Statement and Prospectus referred to below. The
offering and sale of the Shares contemplated by this underwriting agreement
(this “Agreement”)
is
referred to herein as the “Offering.”
1. Representations
and Warranties of the Company.
The
Company represents, warrants and covenants to, and agrees with, each of the
Underwriters that, as of the date hereof:
Stanford
Group Company
__________
___, 2007
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(a) The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a
registration statement on Form SB-2 (Registration No. 333-142649), and
amendments thereto, and related preliminary prospectuses for the registration
under the Securities Act of 1933, as amended (the “Securities
Act”),
of
the Shares, which registration statement, as so amended (including
post-effective amendments, if any), has been declared effective by the
Commission and copies of which have heretofore been delivered to the
Underwriters. Promptly after execution and delivery of this Agreement, the
Company will prepare and file a prospectus in accordance with the provisions
of
Rule 430A (“Rule
430A”)
of the
rules and regulations of the Commission (the “Rules
and Regulations”)
and
paragraph (b) of Rule 424 (“Rule
424(b)”)
of the
Regulations. The information included in such prospectus that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective
pursuant to paragraph (b) of Rule 430A is referred to as “Rule
430A Information.”
Each
prospectus used before such registration statement became effective, and any
prospectus that omitted the Rule 430A Information that was used after such
effectiveness and prior to the execution and delivery of this Agreement, is
referred to herein as a “Preliminary
Prospectus.”
Such
registration statement, including the amendments thereto, the exhibits and
any
schedules thereto, at the time it became effective, and including the Rule
430A
Information, is herein called the “Registration
Statement.”
The
Preliminary Prospectus dated ________________, 2007, that was included in the
Registration Statement at the Time of Sale is referred to herein as the
“Sale
Preliminary Prospectus”,
except
that if any revised prospectus or prospectus supplement shall be provided to
the
Underwriters by the Company for use in connection with the Offering which
differs from the Sale Preliminary Prospectus (whether or not such revised
prospectus or prospectus supplement is required to be filed by the Company
pursuant to Rule 424(b)), the term “Prospectus” shall also refer to such revised
prospectus or prospectus supplement, as the case may be, from and after the
time
it is first provided to the Underwriters for such use. For purposes of this
Agreement and the Securities Act, “Time
of Sale”,
means
___________, New York City time, on the date of this Agreement.
The
final prospectus in the form first furnished to the Underwriters for use in
connection with the Offering is referred to herein as the “Prospectus.”
If
the
Company has filed or is required pursuant to the terms hereof to file a
registration statement pursuant to Rule 462(b) under the Securities Act
registering additional shares of Common Stock (a “Rule
462(b) Registration Statement”),
then,
unless otherwise specified, any reference herein to the term “Registration
Statement” shall be deemed to include such Rule 462(b) Registration Statement.
Other than a Rule 462(b) Registration Statement, which, if filed, becomes
effective upon filing, no other document with respect to the Registration
Statement has heretofore been filed with the Commission. All of the Shares
have
been registered under the Securities Act pursuant to the Registration Statement
or, if any Rule 462(b) Registration Statement is filed, will be duly registered
under the Securities Act with the filing of such Rule 462(b) Registration
Statement. Based on communications from the Commission, no stop order suspending
the effectiveness of either the Registration Statement or the Rule 462(b)
Registration Statement, if any, has been issued and, to the Company’s knowledge,
no proceeding for that purpose has been initiated or threatened by the
Commission. Any reference herein to the Registration Statement, any Preliminary
Prospectus, the Sale Preliminary Prospectus or the Prospectus shall be deemed
to
refer to and include the exhibits incorporated by reference therein pursuant
to
the Rules and Regulations on or before the effective date of the Registration
Statement, the date of such Preliminary Prospectus, the Sale Preliminary
Prospectus or the date of the Prospectus, as the case may be. Any reference
herein to the terms “amend”, “amendment” or “supplement” with respect to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall
be
deemed to
Stanford
Group Company
__________
___, 2007
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38
refer
to
and include: (i) the filing of any document under the Securities Exchange Act
of
1934, as amended, and together with the Rules and Regulations promulgated
thereunder (the “Exchange
Act”)
after
the effective date of the Registration Statement, the date of such Preliminary
Prospectus, the Sale Preliminary Prospectus or the date of the Prospectus,
as
the case may be, which is incorporated therein by reference, and (ii) any such
document so filed. All references in this Agreement to the Registration
Statement, the Rule 462(b) Registration Statement, a Preliminary Prospectus,
the
Sale Preliminary Prospectus and the Prospectus, or any amendments or supplements
to any of the foregoing shall be deemed to include any copy thereof filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
System (“▇▇▇▇▇”).
The
Sale Preliminary Prospectus and the Prospectus delivered to the Underwriters
for
use in connection with the Offering were or will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to
▇▇▇▇▇, except to the extent permitted by Regulation S-T. If, subsequent to
the date of this Agreement, the Company or the Representative determine that,
at
the Time of Sale, the Sale Preliminary Prospectus included an untrue statement
of a material fact or omitted a statement of material fact necessary to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading and have agreed to provide an opportunity to purchasers
of
the Firm Shares to terminate their old purchase contracts and enter into new
purchase contracts, then the Sale Preliminary Prospectus will be deemed to
include any additional information made available by or on behalf of the Company
to purchasers at the time of entry into the first such new purchase
contract.
(b) At
the
time of the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement or the effectiveness of any post-effective amendment
to
the Registration Statement, when the Prospectus is first filed with the
Commission pursuant to Rule 424(b), when any supplement to or amendment of
the
Prospectus is filed with the Commission, when any document filed under the
Exchange Act was or is filed and at the Closing Date and the Additional Closing
Date (as hereinafter respectively defined), if any, the Registration Statement,
the Sale Preliminary Prospectus and the Prospectus and any amendments thereof
and supplements or exhibits thereto complied or will comply in all material
respects with the applicable provisions of the Securities Act, the Exchange
Act
and the Rules and Regulations, and did not and will not contain an untrue
statement of a material fact and did not and will not omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein: (i) in the case of the Registration Statement, not misleading, and
(ii)
in the case of the Sale Preliminary Prospectus or the Prospectus in light of
the
circumstances under which they were made, not misleading. When any Preliminary
Prospectus (including the Sale Preliminary Prospectus) was first filed with
the
Commission (whether filed as part of the registration statement for the
registration of the Shares or any amendment thereto or pursuant to Rule 424(a)
under the Securities Act), and when any amendment thereof or supplement thereto
was first filed with the Commission, such Preliminary Prospectus and any
amendments thereof and supplements thereto complied in all material respects
with the applicable provisions of the Securities Act, the Exchange Act and
the
Rules and Regulations and did not contain an untrue statement of a material
fact
and did not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. No representation and warranty
is
made in this subsection (b), however, with respect to any information contained
in or omitted from the Registration Statement or the Prospectus or any related
Preliminary Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representative
specifically for use therein. The parties acknowledge and agree that such
information provided by or on behalf of any Underwriter consists solely of:
(i)
the names of the Underwriters appearing in the “Underwriting” section of the
Prospectus, (ii) the contents of the fourth paragraph under the heading entitled
“Nature of Underwriting Commitment” in the “Underwriting” section of the
Prospectus, (iii) the contents of second paragraph under the heading entitled
“Lock-Ups” in the “Underwriting” section of the Prospectus, (iv) the contents of
final paragraph under the heading entitled “Stabilization” in the “Underwriting”
section of the Prospectus and (v) the paragraphs under the heading entitled
“Foreign Regulatory Restrictions on Purchase of Shares” in the “Underwriting”
section of the Prospectus
(the
“Underwriters’
Information”).
Stanford
Group Company
__________
___, 2007
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(c) The
Company has filed with the Commission a Form 8-A (File Number ___ - ________)
providing for the registration under the Exchange Act of the Common Stock.
The
registration of the Common Stock under the Exchange Act has been declared
effective by the Commission on the date hereof.
(d) There
are
no contracts or other documents (including, without limitation, any voting
agreement), which are required to be described in the Registration Statement,
the Sale Preliminary Prospectus and the Prospectus or filed as exhibits to
the
Registration Statement by the Securities Act, the Exchange Act or the Rules
and
Regulations and which have not been so described, filed or incorporated by
reference.
(e) PricewaterhouseCoopers
LLP (“PwC”),
whose
reports relating to the Company are included in the Registration Statement,
are
independent public accountants as required by the Securities Act, the Exchange
Act, the Rules and Regulations and the rules and regulations promulgated by
the
Public Company Accounting Oversight Board (the “PCAOB”).
PwC
is duly registered and in good standing with the PCAOB. PwC has not, during
the
periods covered by the financial statements included in the Registration
Statement, the Preliminary Prospectus and the Prospectus, provided to the
Company any non-audit services, as such term is used in Section 10A(g) of the
Exchange Act.
(f) The
Shares have been authorized for listing on the American Stock Exchange
(“AMEX”)
and,
to the Company’s knowledge, no proceedings have been instituted or threatened
which would effect, and no event or circumstance has occurred which is
reasonably likely to effect, the listing of the Shares on the AMEX.
(g) The
Company has no direct or indirect subsidiaries and owns no equity interest
in
any other foreign or domestic individual, corporation, trust, general or limited
partnership, joint venture, limited liability company or other entity (each,
a
“Person”).
(h) Subsequent
to the respective dates as of which information is presented in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus, and except as
disclosed in the Registration Statement, the Sale Preliminary Prospectus and
the
Prospectus: (i) the Company has not declared, paid or made any dividends or
other distributions of any kind on or in respect of its capital stock, and
(ii)
there has been no material adverse change (or any development which has a high
probability of involving a material adverse change in the future), whether
or
not arising from transactions in the ordinary course of business, in or
affecting: (A) the business, condition (financial or otherwise), results of
operations, stockholders’ equity, properties or prospects (as such prospects are
described in the Registration Statement, the Sale Preliminary Prospectus and
the
Prospectus) of the Company; (B) the long-term debt or capital stock of the
Company; or (C) the Offering or consummation of any of the other transactions
contemplated by this Agreement, the Registration Statement or the Prospectus
(a
“Material
Adverse Change”).
Since
the date of the latest balance sheet presented in the Registration Statement,
the Sale Preliminary Prospectus and the Prospectus, the Company has not incurred
or undertaken any liabilities or obligations, whether direct or indirect,
liquidated or contingent, matured or unmatured, or entered into any
transactions, including any acquisition or disposition of any business or asset,
which are material to the Company, except for liabilities, obligations and
transactions which are disclosed in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus.
Stanford
Group Company
__________
___, 2007
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(i) As
of the
dates indicated in the Sale Preliminary Prospectus and the Prospectus, the
authorized, issued and outstanding shares of capital stock of the Company were
as set forth therein in the column headed “Actual” under the section thereof
captioned “Capitalization” and, after giving effect to the Offering and the
other transactions contemplated by this Agreement and the Registration
Statement, will be as set forth in the column headed “As Adjusted” in such
section. All of the issued and outstanding shares of capital stock of the
Company are fully paid and non-assessable (and those shares of Common Stock
issuable upon conversion of the Company’s notes and warrants as described in the
Registration Statement and the Prospectus, upon conversion thereof as described
in the Registration Statement, will be fully paid and non-assessable) and have
been duly and validly authorized and issued, in compliance with all applicable
state and federal securities laws, rules and regulations and not in violation
of
or subject to any preemptive or similar right that does or will entitle any
Person (as defined below), upon the issuance or sale of any security, to acquire
any Relevant Security from the Company. As used herein, the term “Relevant
Security”
means
any Common Stock or other security of the Company that is convertible into,
or
exercisable or exchangeable for Common Stock or equity securities, or that
holds
the right to acquire any Common Stock or equity securities of the Company or
any
other such Relevant Security, except for such rights as may have been fully
satisfied or waived prior to the effectiveness of the Registration Statement.
(j) The
Shares have been duly and validly authorized and, when issued,
delivered
and
paid
for in
accordance with this Agreement
and as
described in the Sale Preliminary Prospectus and the Prospectus on each of
the
Closing Date and the Additional Closing Date, as applicable, will
be
duly and validly issued, fully paid and non-assessable, will have been issued
in
compliance with all applicable state, federal and foreign securities laws,
rules
and regulations and will not have been issued in violation of or subject to
any
preemptive or similar right that does or will entitle any Person to acquire
any
Relevant Security from the Company upon issuance or sale of Shares in the
Offering. The shares of Common Stock representing the Shares conform in all
material respects to the descriptions thereof contained in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus. Except as
disclosed in the Registration Statement, the Sale Preliminary Prospectus and
the
Prospectus, the Company has no outstanding warrants, options to purchase, or
any
preemptive rights or other rights to subscribe for or to purchase, or any
contracts or commitments to issue or sell, any Relevant Security.
Stanford
Group Company
__________
___, 2007
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(k) The
Company has been duly incorporated, and validly exists as a corporation in
good
standing under the laws of the State of Delaware. The Company has all requisite
power and authority to carry on its business as it is currently being conducted
and as described in the Sale Preliminary Prospectus and the Prospectus, and
to
own, lease and operate its properties. The Company is duly qualified to do
business and is in good standing as a foreign corporation in each jurisdiction
in which the character or location of its properties (owned, leased or licensed)
or the nature or conduct of its business makes such qualification necessary,
except, in each case, for those failures to be so qualified or in good standing
which (individually and in the aggregate) could not reasonably be expected
to
have a material adverse effect on: (i) the business, condition (financial or
otherwise), results of operations, stockholders’ equity, properties or prospects
(as such prospects are described in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus) of the Company; (ii) the long-term
debt or capital stock of the Company; or (iii) the Offering or consummation
of
any of the other transactions contemplated by this Agreement, the Registration
Statement or the Prospectus (any such effect being a “Material
Adverse Effect”).
(l) The
Company is not: (i) in violation of its certificate of incorporation, by-laws
or
other organizational documents (including stockholders’, voting or similar
agreements), (ii) in default under, and no event has occurred which, with notice
or lapse of time or both, would constitute a default under or result in the
creation or imposition of any lien, charge, mortgage, pledge, security interest,
claim, equity, trust or other encumbrance, preferential arrangement, defect
or
restriction of any kind whatsoever (“Lien”)
upon
any of its property or assets pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it is a party
or
by which it is bound or to which any of its property or assets is subject or
(iii) is in violation in any respect of any law, rule, regulation, ordinance,
directive, judgment, decree or order of any judicial, regulatory or other legal
or governmental agency or body, foreign or domestic, except, in the case of
clauses (ii) and (iii) above, for any default, Lien or violation disclosed
in
the Registration Statement, the Sale Preliminary Prospectus and the Prospectus
and any default, Lien or violation that do not or would not have a Material
Adverse Effect.
(m) The
Company has full corporate power and authority to execute and deliver this
Agreement, the Representative’s Warrant and all other agreements, documents,
certificates and instruments required to be delivered pursuant to this Agreement
(collectively, the “Transaction
Documents”)
and to
perform its obligations hereunder and thereunder and to consummate each of
the
transactions contemplated by each of the Transaction Documents. The Company
has
duly and validly authorized each of the Transaction Documents and each of the
transactions contemplated by the Transaction Documents. This Agreement has
been,
and the Representative’s Warrant and each other Transaction Document delivered
by the Company or its representatives at the Closing will be, duly and validly
executed and delivered by the Company or its representatives, and this Agreement
and the Representative’s Warrant constitutes or will constitute the legal, valid
and binding obligation of the Company and is enforceable against the Company
in
accordance with its terms, except as enforceability may be limited by: (i)
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally, (ii) subject to general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law) and (iii) federal and state securities laws and public
policy regarding rights to indemnification and contribution.
Stanford
Group Company
__________
___, 2007
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(n) The
execution, delivery, and performance of the Transaction Documents and the
consummation of the transactions contemplated thereby do not and will not:
(i)
conflict with, require consent under or result in a breach of any of the terms
and provisions of, or constitute a default (or an event which with notice or
lapse of time, or both, would constitute a default) under, or result in the
creation or imposition of any Lien upon any property or assets of the Company
pursuant to any indenture, mortgage, deed of trust, loan agreement or other
agreement, instrument, franchise, license or permit to which the Company is
a
party or by which the Company or its properties, operations or assets may be
bound or (ii) violate or conflict with any provision of the certificate of
incorporation, by-laws or other organizational documents of the Company, or
(iii) violate or conflict with any law, rule, regulation, ordinance, directive,
judgment, decree or order of any judicial, regulatory or other legal or
governmental agency or body, domestic or foreign, except, in the case of each
of
clauses (i) and (iii), for any default, violation or event that do not or would
not, individually or in the aggregate, have a Material Adverse
Effect.
(o) The
Company has all material consents, approvals, authorizations, orders,
registrations, qualifications, licenses, filings and permits of, with and from
all judicial, regulatory and other legal or governmental agencies and bodies
and
all third parties, foreign and domestic (collectively, the “Consents”),
to
own, lease and operate its properties and conduct its business as it is now
being conducted and as disclosed in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus, and each such Consent is valid and
in
full force and effect.
The
Company has not received notice of any investigation or proceedings which
results in or, if decided adversely to the Company, could reasonably be expected
to have a Material Adverse Effect (including, in this context, a revocation
of,
or the imposition of a material restriction on, any Consent). No
Consent contains a materially burdensome restriction not adequately disclosed
in
the Registration Statement, the Sale Preliminary Prospectus and the
Prospectus.
(p) The
Company is in compliance with all applicable laws, rules, regulations,
ordinances, directives, judgments, decrees and orders, foreign and domestic,
including those relating to transactions with its “affiliates” (as such term is
defined in Rule 144 under the Securities Act, “Affiliates”),
the
non-compliance with which does not or would not have a Material Adverse
Effect.
(q) The
Representative’s Warrant will conform in all material respects to the
description thereof in the Registration Statement and in the Prospectus and,
when sold to and paid for by the Representative in accordance with the
Representative’s Warrant, will have been duly authorized and validly issued and
will constitute valid and binding obligations of the Company entitled to the
benefits of the Representative’s Warrant. The shares of Common Stock issuable
upon exercise of the Representative’s Warrant (the “Representative’s
Warrant Shares”)
have
been duly authorized and reserved for issuance upon exercise of the
Representative’s Warrant by all necessary corporate action on the part of the
Company and, when issued and delivered and paid for upon such exercise in
accordance with the terms of the Representative’s Warrant, will be validly
issued, fully paid, nonassessable and free of preemptive rights and will conform
all material respects to the description thereof in the Sale Preliminary
Prospectus.
Stanford
Group Company
__________
___, 2007
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(r) No
Consent is required for the execution, delivery and performance of this
Agreement and the Representative’s Warrant or consummation of each of the
transactions contemplated by this Agreement and the Representative’s Warrant,
including the issuance, sale and delivery of the Shares and the Representative’s
Warrant Shares to be issued, sold and delivered hereunder and thereunder,
except: (i) the registration under the Securities Act of the Shares and the
Representative’s Warrant Shares and the approval for listing of the Shares and
the Representative’s Warrant Shares on AMEX, each of which has become effective,
(ii) such Consents as may be required under state securities or blue sky laws,
any foreign securities laws, the Financial Industry Regulatory Authority, Inc.,
formerly known as the National Association of Securities Dealers, Inc.
(“FINRA”)
or any
similar self regulatory organization in connection with the purchase and
distribution of the Shares by the Underwriters and (iii) such other Consents
as
are required, each of which has been obtained and is in full force and effect.
(s) Except
as
disclosed in the Registration Statement, the Sale Preliminary Prospectus and
the
Prospectus, there is no judicial, regulatory, arbitral or other legal or
governmental proceeding or other litigation or arbitration, domestic or foreign,
pending to which the Company is a party or of which any property, operations
or
assets of the Company is the subject which, either individually or in the
aggregate, is having or could reasonably be expected to have a Material Adverse
Effect. To the Company’s knowledge, no such proceeding, litigation or
arbitration is threatened or contemplated.
(t) The
financial statements, including the notes thereto, included in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus present fairly
in
all material respects the financial position as of the dates indicated and
the
cash flows and results of operations for the periods specified of the Company.
Except as otherwise stated in the Registration Statement, the Sale Preliminary
Prospectus and the Prospectus, said financial statements have been prepared
in
conformity with United States generally accepted accounting principles applied
on a consistent basis throughout the periods involved. No other financial
statements or supporting schedules are required to be included or incorporated
by reference in the Registration Statement. The other financial information
included in the Registration Statement, the Sale Preliminary Prospectus and
the
Prospectus present fairly the information included therein and have been
prepared on a basis consistent with that of the financial statements that are
included in the Registration Statement, the Sale Preliminary Prospectus and
the
Prospectus and the books and records of the respective entities presented
therein.
Stanford
Group Company
__________
___, 2007
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(u) There
are no pro forma or as adjusted financial statements which are required to
be
included in
the Registration Statement, the
Sale
Preliminary Prospectus
and
the Prospectus in accordance with Regulation
S-X under the Securities Act which have not been included as so required. The
pro forma and/or as adjusted financial information included in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus has been properly
compiled and prepared in accordance with the applicable requirements of the
Securities Act and the Rules and Regulations and include all adjustments
necessary to present fairly, in accordance with generally accepted accounting
principles and in all material respects, the pro forma and as adjusted financial
position of the respective entity or entities presented therein at the
respective dates indicated and their cash flows and the results of operations
for the respective periods specified. The assumptions used in preparing the
pro
forma and as adjusted financial information included in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus provide a
reasonable basis for presenting the significant effects directly attributable
to
the transactions or events described therein. The related pro forma and pro
forma as adjusted adjustments give appropriate effect to those assumptions;
and
the pro forma and pro forma as adjusted financial information reflect the proper
application of those adjustments to the corresponding historical financial
statement amounts.
(v) The
statistical, industry-related and market-related data included in the
Registration Statement, the Sale Preliminary Prospectus and the Prospectus
are
based on or derived from sources which the Company reasonably and in good faith
believes are reliable and, in all material respects, accurate. Such data agree
with the sources from which they are derived.
(w) Except
as
disclosed in the Registration Statement, the Sale Preliminary Prospectus and
the
Prospectus, the Company maintains a system of internal accounting and other
controls sufficient to provide reasonable assurances that: (i) transactions
are
executed in accordance with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with United States 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 accounting for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(x) The
Company’s Board of Directors has validly appointed an audit committee whose
composition satisfies the requirements of the rules and regulations of the
AMEX
and the Company’s Board of Directors and/or audit committee has each adopted a
charter that satisfies the requirements of AMEX. Except as disclosed in the
Registration Statement, the Sale Preliminary Prospectus and the Prospectus,
neither the Company’s Board of Directors nor the audit committee thereof has
been informed, nor is any director of the Company aware, of: (i) any significant
deficiencies and material weaknesses in the design or operation of internal
control over financial reporting which are reasonably likely to adversely affect
the Company’s ability to record, process, summarize and report financial
information; or (ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in the Company’s
internal control over financial reporting.
Stanford
Group Company
__________
___, 2007
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(y) The
Company is in material compliance with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act
of 2002, as amended (“Sarb-Ox”),
applicable to the Company, and the rules and regulations promulgated thereunder
and related or similar rules and regulations promulgated by AMEX or any other
governmental or self regulatory entity or agency, except for violations which,
singly or in the aggregate, would not have a Material Adverse Effect. Without
limiting the generality of the foregoing, as of the effective date of the
Registration Statement: (i) the Company’s Board of Directors satisfies all
“independence” requirements (as that term is defined under applicable laws,
rules and regulations), including, without limitation, all members of the audit
committee of the Company’s Board of Directors, meet the qualifications of
independence as set forth under applicable laws, rules and regulations and
(ii)
immediately following the Closing, the audit committee of the Company’s Board of
Directors will have at least one member who is an “audit committee financial
expert” (as that term is defined under applicable laws, rules and
regulations).
(z) Except
as
disclosed in the Registration Statement, the Sale Preliminary Prospectus and
the
Prospectus: (i) no director, officer or key employee of the Company holds any
direct equity, debt or other pecuniary interest in any Person with whom the
Company does business or is in privity of contract with, other than, in each
case, indirectly through the ownership by such individuals of shares of Common
Stock and (ii) no other relationship, direct or indirect, exists between or
among any of the Company or, to the Company’s knowledge, any Affiliate of the
Company, on the one hand, and any director, officer, key employee, stockholder,
customer or supplier of the Company or to the Company’s knowledge, any Affiliate
of the Company, on the other hand, which is required by the Securities Act,
the
Exchange Act or the Rules and Regulations to be described in the Registration
Statement, the Sale Preliminary Prospectus or the Prospectus which is not so
described as required. Except as disclosed in the Registration Statement, the
Sale Preliminary Prospectus and the Prospectus, there are no outstanding loans,
advances (except normal advances for business expenses in the ordinary course
of
business) or guarantees of indebtedness by the Company to or for the benefit
of
any of the officers or directors of the Company or any of their respective
family members, except as disclosed in the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus. The Company has not, in violation
of
Sarb-Ox, directly or indirectly, including through any Affiliate of the Company
(other than as permitted under the Sarb-Ox for depositary institutions),
extended or maintained credit, arranged for the extension of credit, or renewed
an extension of credit, in the form of a personal loan to or for any director
or
executive officer of the Company.
(aa) Except
as
disclosed in the Registration Statement, the Sale Preliminary Prospectus and
the
Prospectus:
(i) There
are
no claims, payments, arrangements, agreements or understandings relating to
the
payment of a finder’s, consulting or origination fee by the Company with respect
to the sale of the Shares hereunder or any other arrangements, agreements or
understandings of the Company or, to the Company’s knowledge, the Company’s
officers, directors and employees that may affect the Underwriters’
compensation, as determined by FINRA.
Stanford
Group Company
__________
___, 2007
Page 11
of
38
(ii) No
officer, director, or beneficial owner of more than ten percent (10%) of any
class of the Company’s securities (whether debt or equity, registered or
unregistered, regardless of the time acquired or the source from which derived)
or any other Affiliate is a member or a person associated, or affiliated with
a
member of FINRA.
(iii) No
proceeds from the sale of the Shares (excluding underwriting compensation)
will
be paid to any FINRA member, or any persons associated or affiliated with a
member of the FINRA, except as specifically contemplated herein.
(iv) To
the
Company’s knowledge, no person to whom securities of the Company have been
privately issued within the 180-day period prior to the initial filing date
of
the Registration Statement has any relationship or affiliation or association
with any member of the FINRA.
(bb) (i) Except
as
would not have a Material Adverse Effect, the Company owns or possesses
sufficient rights to use trademarks, trade names, patents, patent rights,
copyrights, domain names, licenses, approvals, trade secrets, inventions,
technology, know-how and other similar intellectual property rights, including
applications for the same (collectively, “Intellectual
Property Rights”)
as are
necessary: (A) to conduct its business as now conducted and (B) in connection
with the commercialization of the medical technologies described in the
Registration Statement, the Sale Preliminary Prospectus and Prospectus as being
under development by the Company.
(ii) Except
as
disclosed in the Registration Statement, the Sale Preliminary Prospectus and
Prospectus: (A) there is no pending or, to the Company’s knowledge, threatened,
action, suit, proceeding, or claim by others challenging the Company’s rights in
or to any Intellectual Property Rights, and the Company is unaware of any facts
which would form a reasonable basis for any such claim; (B) there is no pending
or, to the Company’s knowledge, threatened, action, suit, proceeding, or claim
by others that the Company infringes, misappropriates, or otherwise violates
any
Intellectual Property Rights of others, and the Company is unaware of any facts
which would form a reasonable basis for any such claim; (C) there is no pending
or, to the Company’s knowledge, threatened, action, suit, proceeding, or claim
by others challenging the validity or scope of any such Intellectual Property
Rights owned by the Company and the Company is unaware of any facts which would
form a reasonable basis for any such claim; (D) the operation of Company’s
business as now conducted and in connection with the development and
commercialization of the medical technology described in the Registration
Statement, the Sale Preliminary Prospectus and Prospectus, as being under
development by the Company (either independently or in collaboration with third
parties), does not infringe any claim of any patent or published patent
application; (E) there is no prior art of which the Company is aware that may
render any patent owned or licensed by the Company invalid or any patent
application owned or licensed by the Company unpatentable which has not been
disclosed to the applicable government patent office; and (F) the patents,
trademarks, and copyrights granted, issued or licensed to the Company have
been
duly maintained and are in full force and in effect, and none of such patents,
trademarks and copyrights have been adjudged invalid or unenforceable in whole
or in part. The Company is not a party to or bound by any options, licenses
or
agreements with respect to the Intellectual Property Rights of any other person
or entity that are required to be described in the Registration Statement,
the
Sale Preliminary Prospectus and Prospectus and are not described therein in
all
material respects. Other than The ▇▇▇▇▇ ▇▇▇▇▇▇▇ University, to the Company’s
knowledge, no third party possesses rights to the Company’s Intellectual
Property Rights that, if exercised, could enable such party to develop products
competitive to those the Company intends to develop as described in the Sale
Preliminary Prospectus and the Prospectus.
Stanford
Group Company
__________
___, 2007
Page 12
of
38
(iii) Neither
the Company nor any individual acting on the Company’s behalf or who is an
assignee of Intellectual Property Rights to the Company has filed or caused
to
be filed with the U. S. Patent and Trademark Office (the “PTO”)
or any
foreign patent office any patent, trademark or copyright applications.
(iv) Other
than as disclosed in the Registration Statement, the Sale Preliminary Prospectus
and Prospectus, there are no rulemaking or similar proceedings before the U.S.
Food and Drug Administration (“FDA”)
or PTO
which affect or involve the Company or any of the processes or medical
technologies that the Company has developed, is developing or proposes to
develop or uses or proposes to use which has or would not have a Material
Adverse Effect.
(v) The
Company has obtained legally binding written agreements from all employees
and
third parties with whom the Company has shared confidential proprietary
information: (A) of the Company, or (B) received from others which the Company
is obligated to treat as confidential, which agreements require such employees
and third parties to keep such information confidential.
(cc) Neither
the Company nor any of the Company’s directors, officers or employees has
violated: (i) the Bank Secrecy Act, as amended, (ii) the Money Laundering
Control Act of 1986, as amended, (iii) the Foreign Corrupt Practices Act, or
(iv) the Uniting and Strengthening of America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001,
and/or the rules and regulations promulgated under any such law, or any
successor law, except
for such violations which, singly or in the aggregate, would not have a Material
Adverse Effect.
(dd) Neither
the Company nor any of its Affiliates has, prior to the date hereof, made any
offer or sale of any securities which are required to be “integrated” pursuant
to the Securities Act or the Rules and Regulations with the offer and sale
of
the Shares pursuant to the Registration Statement.
(ee) Except
as
disclosed in the Registration Statement, the Sale Preliminary Prospectus and
the
Prospectus, no holder of any Relevant Security has any rights to require
registration of any Relevant Security as part or on account of, or otherwise
in
connection with, the offer and sale of the Shares contemplated hereby, and
any
such rights so disclosed have either been fully complied with by the Company
or
effectively waived by the holders thereof, and any such waivers remain in full
force and effect.
Stanford
Group Company
__________
___, 2007
Page 13
of
38
(ff) The
Company is not and, at all times up to and including consummation of the
transactions contemplated by this Agreement, and after giving effect to
application of the net proceeds of the Offering, will not be, subject to
registration as an “investment company” under the Investment Company Act of
1940, as amended, and is not and will not be an entity “controlled” by an
“investment company” within the meaning of such act.
(gg) Except
as
disclosed in the Registration Statement, the Sale Preliminary Prospectus and
the
Prospectus, there are no contracts, agreements or understandings between the
Company and any Person that would give rise to a valid claim against the Company
or any Underwriter for a brokerage commission, finder’s fee or other like
payment in connection with the transactions contemplated by this Agreement
or
any arrangements, agreements, understandings, payments or issuance with respect
to the Company or any of its officers, directors, stockholders, partners,
employees or Affiliates that may affect the Underwriters’ compensation as
determined by the FINRA.
(hh) The
Company owns or leases all such properties as are necessary to the conduct
of
its business as presently operated and as proposed to be operated as described
in the Registration, the Sale Preliminary Prospectus and the Prospectus. The
Company has good and marketable title in fee simple to all real property and
good and marketable title to all personal property owned by it, in each case
free and clear of all Liens except such as are described in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus or such as do
not,
or are will not have, a Material Adverse Effect. Any real property and buildings
held under lease or sublease by the Company is held by under valid, subsisting
and enforceable leases with such exceptions as are not material to, and do
not
interfere with, the use made and proposed to be made of such property and
buildings by the Company. The Company has not received any notice of any claim
adverse to its ownership of any real or personal property or of any claim
against the continued possession of any real property, whether owned or held
under lease or sublease by the Company.
(ii) The
Company maintains insurance of the types and in the amounts which are
customary
for companies engaged in similar businesses,
including, but not limited to: (i) directors’ and officers’ insurance (including
insurance
covering the Company, its directors and officers for liabilities or losses
arising in connection with this Offering, including, without limitation,
liabilities or losses arising under the Securities Act, the Exchange Act, the
Rules and Regulations and applicable foreign securities laws), (ii)
insurance covering real and personal property owned or leased by the Company
against theft, damage, destruction, acts of vandalism and all other risks
customarily insured against, (iii) business interruption insurance and (iv)
product liability insurance. Effective as of the Closing Date, the
Company will maintain insurance (of which the Company is the beneficiary) with
at least $1,000,000 of coverage of the life of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ for a period
of
three (3) years from the Closing Date with an
insurer rated at least AA or better in the most recent addition of “Best’s Life
Reports”.
There
are no claims by the Company under any policy or instrument described in this
paragraph as to which any insurance company is denying liability or defending
under a reservation of rights clause. All
of the insurance policies described in this paragraph are in full force and
effect.
The
Company has not been refused any insurance coverage sought or applied for,
and
the Company has no reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect.
Stanford
Group Company
__________
___, 2007
Page 14
of
38
(jj) Except
as
would not have a Material Adverse Effect, the Company has accurately prepared
and timely filed all federal, state, foreign and other tax returns that are
required to be filed by it and has paid or made provision for the payment of
all
taxes, assessments, governmental or other similar charges, including without
limitation, all sales and use taxes and all taxes which the Company is obligated
to withhold from amounts owing to employees, creditors and third parties, with
respect to the periods covered by such tax returns (whether or not such amounts
are shown as due on any tax return). No deficiency assessment with respect
to a
proposed adjustment of the Company’s federal, state, local or foreign taxes is
presently in effect or is pending or, to the Company’s knowledge, threatened.
The accruals and reserves on the books and records of the Company in respect
of
tax liabilities for any taxable period not finally determined are adequate
in
all material respects to meet any assessments and related liabilities for any
such period and, since the date of the Company’s most recent audited financial
statements, the Company has not incurred any material liability for taxes other
than in the ordinary course of its business. There is no tax lien, whether
imposed by any federal, state, foreign or other taxing authority, outstanding
against the assets, properties or business of the Company.
(kk) No
labor
disturbance by the employees of the Company currently exists or, to the
knowledge of the Company, is reasonably likely to occur.
(ll) The
Company has at all times operated its business in material compliance with
all
Environmental Laws, and no material expenditures are or will be required in
order to comply therewith. The Company has not received any notice or
communication that relates to or alleges any actual or potential violation
or
failure to comply with any Environmental Laws that will result in a Material
Adverse Effect. As used herein, the term “Environmental
Laws”
means
all applicable laws and regulations, including any licensing, permits or
reporting requirements, and any action by a Federal state or local government
entity pertaining to the protection of the environment, protection of public
health, protection of worker health and safety, or the handling of hazardous
materials, including without limitation, the Clean Air Act, 42 U.S.C. § 7401, et
seq., the Comprehensive Environmental Response, Compensation and Liability
Act
of 1980, 42 U.S.C. § 9601, et seq., the Federal Water Pollution Control Act, 33
U.S.C. § 1321, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. §
1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 690-1, et
seq., and the Toxic Substances Control Act, 15 U.S.C. § 2601, et
seq.
(mm) The
Company is not a party to, and does not maintain or administer, any “employee
benefit plan,” as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974 (“ERISA”)
which
is subject to any provision of Title IV of ERISA and covers any officer,
director, employee or former employee of the Company or any ERISA Affiliate
(as
defined hereafter). These plans are referred to collectively herein as the
“Employee
Plans.”
For
purposes of this paragraph, “ERISA
Affiliate”
of
any
person or entity means any other person or entity which, together with that
person or entity, could be treated as a single employer under Section 414(m)
of
the Internal Revenue Code of 1986, as amended (the “Code”),
or is
an “affiliate,” whether or not incorporated, as defined in Section 407(d)(7) of
ERISA, of the person or entity.
Stanford
Group Company
__________
___, 2007
Page 15
of
38
(nn) The
Registration Statement, the Sale Preliminary Prospectus and the Prospectus
identify each employment, severance or other similar arrangement or policy
and
each material plan or arrangement providing for insurance coverage (including
any self-insured arrangements), workers’ compensation, disability benefits,
severance benefits, supplemental unemployment benefits, vacation benefits,
retirement benefits or for deferred compensation, profit-sharing, bonuses,
stock
options, stock appreciation or other forms of incentive compensation, or
post-retirement insurance, compensation or benefits which: (i) is not an
Employee Plan, (ii) is entered into, maintained or contributed to, as the case
may be, by the Company or any of their respective ERISA Affiliates, (iii) covers
any employee or former employee of the Company or any of their respective ERISA
Affiliates and (iv) are required by the Rules and Regulations to be identified
in the Registration Statement, the Sale Preliminary Prospectus and the
Prospectus. The foregoing contracts, plans and arrangements are referred to
collectively in this Agreement as the “Benefit
Arrangements.”
The
Company has disclosed to the Representative in writing all Benefit Arrangements
affecting the Company or to which the Company is a party, and each such Benefit
Arrangement has been maintained in substantial compliance with its terms and
with requirements prescribed by any and all statutes, orders, rules and
regulations that are applicable to that Benefit Arrangement.
(oo) There
is
no liability in respect of post-retirement health and medical benefits for
retired employees of the Company or any of their respective ERISA Affiliates
other than medical benefits required to be continued under applicable law,
determined using assumptions that are reasonable in the aggregate, over the
fair
market value of any fund, reserve or other assets segregated for the purpose
of
satisfying such liability (including for such purposes any fund established
pursuant to Section 401(h) of the Code). With respect to any of the Company’s
Employee Plans which are “group health plans” under Section 4980B of the Code
and Section 607(1) of ERISA, there has been material compliance with all
requirements imposed there under such that the Company or their respective
ERISA
Affiliates have no (and will not incur any) loss, assessment, tax penalty,
or
other sanction with respect to any such plan.
(pp) Except
as
disclosed in the Registration Statement, the Sale Preliminary Prospectus and
the
Prospectus or as disclosed in writing to the Representative, the Company is
not
a party to or subject to any employment contract or arrangement providing for
annual future compensation, or the opportunity to earn annual future
compensation (whether through fixed salary, bonus, commission, options or
otherwise) of more than $60,000 to any officer, consultant, director or
employee.
Stanford
Group Company
__________
___, 2007
Page 16
of
38
(qq) The
execution of this Agreement, the Representative’s Warrant or any other
Transaction Document and consummation of the transactions contemplated hereby
and thereby does not constitute a triggering event under any employment
agreement or arrangement, whether or not legally enforceable, which (either
alone or upon the occurrence of any additional or subsequent event) will or
may
result in any material payment (of severance pay or otherwise), acceleration,
increase in vesting, or increase in benefits to any current or former officer,
employee or director of the Company.
(rr) No
“prohibited transaction” (as defined in either Section 406 of the ERISA or
Section 4975 of Code), “accumulated funding deficiency” (as defined in Section
302 of ERISA) or other event of the kind described in Section 4043(b) of ERISA
(other than events with respect to which the 30-day notice requirement under
Section 4043 of ERISA has been waived) has occurred with respect to any employee
benefit plan for which the Company would have any material liability; each
employee benefit plan of the Company is in compliance in all material respects
with applicable law, including (without limitation) ERISA and the Code; the
Company has not incurred and does not expect to incur liability under Title
IV
of ERISA with respect to the termination of, or withdrawal from any “pension
plan”; and each employee benefit plan of the Company that is intended to be
qualified under Section 401(a) of the Code is so qualified and nothing has
occurred, whether by action or by failure to act, which could cause the loss
of
such qualification.
(ss) Neither
the Company nor, to the Company’s knowledge, any of the Company’s officers,
directors, employees or agents has at any time during the last five (5) years:
(i) made any unlawful contribution to any candidate for foreign office, or
failed to disclose fully any contribution in violation of law, or (ii) made
any
payment to any federal or state governmental officer or official, or other
Person charged with similar public or quasi-public duties, other than payments
that are not prohibited by the laws of the United States of any jurisdiction
thereof.
(tt) The
Company has not offered, or caused the Underwriters to offer, the Firm Shares
to
any Person or entity with the intention of unlawfully influencing: (i) a
customer or supplier of the Company or its Affiliates to alter the customer’s or
supplier’s level or type of business with the Company or any of its Affiliates
or (ii) a journalist or publication to write or publish favorable information
about the Company, any Affiliate or their respective products or
services.
(uu) Except
as
described in the Registration, the Sale Preliminary Prospectus and the
Prospectus, and except as would not have a Material Adverse Effect, the Company:
(i) is and at all times has been in full compliance with all federal, state
and
local statutes, rules, regulations or guidance applicable to the ownership,
testing, development, manufacture, packaging, processing, use, distribution,
marketing, labeling, promotion, sale, offer for sale, storage, import, export
or
disposal of or insurance reimbursement relating to any product manufactured
or
distributed by the Company or any component thereof (“Applicable
Laws”);
(ii)
has not received any FDA Form 483, notice of adverse finding, warning letter,
untitled letter or other correspondence or notice from the FDA or any other
federal, state, local or foreign governmental authority having authority over
the Company (“Governmental
Authority”)
alleging or asserting noncompliance with any Applicable Laws or any licenses,
certificates, approvals, clearances, authorizations, permits and supplements
or
amendments thereto required by any such Applicable Laws (“Authorizations”);
(iii)
possesses all Authorizations and such Authorizations are valid and in full
force
and effect and are not in violation of any term of any such Authorizations;
(iv)
has not received notice of any claim, suit, proceeding, hearing, enforcement,
audit, investigation, arbitration or other action from any Governmental
Authority or third party alleging that any product operation or activity is
in
violation of any Applicable Laws or Authorizations and has no knowledge that
any
such Governmental Authority or third party is considering any such claim, suit,
proceeding, hearing, enforcement, audit, investigation, arbitration or other
action; (v) has not received notice that any Governmental Authority has taken,
is taking or intends to take action to limit, suspend, modify or revoke any
Authorizations and has no knowledge that any such Governmental Authority is
considering such action; (vi) has filed, obtained, maintained or submitted
all
reports, documents, forms, notices, applications, records, claims, submissions
and supplements or amendments as required by any Applicable Laws or
Authorizations and that all such reports, documents, forms, notices,
applications, records, claims, submissions and supplements or amendments were
complete and correct on the date filed (or were corrected or supplemented by
a
subsequent submission); and (vii) has not, either voluntarily or involuntarily,
initiated, conducted, or issued or caused to be initiated, conducted or issued,
any recall, market withdrawal or replacement, safety alert, post sale warning,
“dear doctor” letter, or other notice or action relating to the alleged lack of
safety or efficacy of any product or any alleged product defect or violation
and
the Company does not have any knowledge that any third party has initiated,
conducted or intends to initiate any such notice or action.
Stanford
Group Company
__________
___, 2007
Page 17
of
38
(vv) The
studies, tests and preclinical and clinical trials conducted or sponsored by
or
on behalf of the Company that are described or referred to in the Sale
Preliminary Prospectus, the Prospectus and the Registration Statement were
and,
if still pending, are being conducted in accordance with experimental protocols,
procedures and controls pursuant to accepted professional scientific standards
and all Applicable Laws and Authorizations; the descriptions of the results
of
such studies, tests and trials contained in the Sale Preliminary Prospectus,
the
Prospectus and the Registration Statement are accurate and complete in all
material respects and fairly present the data derived from such studies, tests
and trials; except to the extent disclosed in the Sale Preliminary Prospectus,
Prospectus and the Registration Statement, the Company is not aware of any
studies, tests or trials the results of which the Company believes reasonably
call into question the study, test, or trial results described or referred
to in
the Sale Preliminary Prospectus, the Prospectus and the Registration Statement
when viewed in the context in which such results are described and the clinical
state of development; and the Company has not received any notices or
correspondence from any Governmental Authority requiring the termination,
suspension or material modification of any studies, tests or preclinical or
clinical trials conducted or sponsored by or on behalf of the
Company.
(ww) As
used
in this Agreement, references to matters being “material”
with
respect to the Company shall mean a material event, change, condition, status
or
effect related to the condition (financial or otherwise), properties, assets
(including intangible assets), liabilities, business, prospects (as such
prospects are described in the Registration Statement, the Sale Preliminary
Prospectus and the Prospectus), operations or results of operations of the
Company.
Stanford
Group Company
__________
___, 2007
Page 18
of
38
(xx) As
used
in this Agreement, the term “knowledge
of the Company”
(or
similar language) shall mean the actual knowledge of the officers and directors
of the Company who are named in the Sale Preliminary Prospectus and the
Prospectus, with the assumption that such officers and directors shall have
made
reasonable and diligent inquiry of the matters presented.
(yy) Any
certificate signed by or on behalf of the Company and delivered to the
Representative or to Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP, counsel for the
Representative (“Underwriters’
Counsel”),
shall
be deemed to be a representation and warranty by the Company to each Underwriter
listed on Schedule
A
hereto
as to the matters covered thereby.
2. Purchase,
Sale and Delivery of the Shares.
(a) On
the
basis of the representations, warranties, covenants and agreements herein
contained, but subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter and each Underwriter, severally and not
jointly, agrees to purchase from the Company, at a purchase price per share
of
$______ (except as provided for in Section 5(a) hereof), the number of Firm
Shares set forth opposite their respective names on Schedule
A
hereto
together with any additional number of Shares which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 9 hereof.
(b) Payment
of the purchase price for, and delivery of certificates representing, the Firm
Shares shall be made at the offices of the Underwriters’ Counsel, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed
upon
by the Representative and the Company, at 10:00 A.M., New York City time, on
the
third (3rd) or, as permitted under Rule 15c6-1 under the Exchange Act, fourth
(4th) business day (unless postponed in accordance with the provisions of
Section 9 hereof) following the date of the effectiveness of the Registration
Statement, or such other time not later than ten (10) business days after such
date as shall be agreed upon by the Representative and the Company as permitted
under Rule 15c6-1 under the Exchange Act (such time and date of payment and
delivery being herein called the “Closing
Date”).
The
closing of the payment of the purchase price for, and delivery of certificates
representing, the Firm Shares is referred to herein as the “Closing.”
(c) Payment
of the purchase price for the Firm Shares shall be made by wire transfer in
immediately available funds to or as directed by the Company upon delivery
of
certificates for the Firm Shares to the Representative through the facilities
of
The Depository Trust Company for the respective accounts of the several
Underwriters. Certificates for the Firm Shares shall be registered in such
name
or names and shall be in such denominations as the Representative may request
at
least two (2) business days before the Closing Date.
Stanford
Group Company
__________
___, 2007
Page 19
of
38
(d) In
addition, on the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein
set
forth, the Company hereby grants to the Underwriters an option to purchase
up to
an aggregate of ___________ Additional Shares at the same purchase price per
share to be paid by the Underwriters for the Firm Shares as set forth in Section
2(a) above, for the sole purpose of covering over-allotments in the sale of
Firm
Shares by the Underwriters. This option may be exercised at any time and from
time to time on or before the forty-fifth (45th)
day
following the final date of the Prospectus, by written notice from the
Representative to the Company. Such notice shall set forth the aggregate number
of Additional Shares as to which the option is being exercised and the date
and
time, as reasonably determined by the Representative, when the Additional Shares
are to be delivered (any such date and time being herein sometimes referred
to
as the “Additional
Closing Date”);
provided,
however,
that no
Additional Closing Date shall occur earlier than the Closing Date or earlier
than the second (2nd) full business day after the date on which the option
shall
have been exercised nor later than the eighth (8th) full business day after
the
date on which the option shall have been exercised (unless such time and date
are postponed in accordance with the provisions of Section 9 hereof). Upon
any
exercise of the option as to all or any portion of the Additional Shares, each
Underwriter, acting severally and not jointly, agrees to purchase from the
Company the number of Additional Shares that bears the same proportion of the
total number of Additional Shares then being purchased as the number of Firm
Shares set forth opposite the name of such Underwriter on Schedule
A
hereto
(or such number increased as set forth in Section 9 hereof) bears to the total
number of Firm Shares that the Underwriters have agreed to purchase hereunder,
subject, however, to such adjustments to eliminate fractional shares as the
Representative in its sole discretion shall make.
(e) Payment
of the purchase price for, and delivery of certificates representing, the
Additional Shares shall be made at the office of Underwriters’ Counsel, or at
such other place as shall be agreed upon by the Representative and the Company,
at 10:00 A.M., New York City time, on the Additional Closing Date (unless
postponed in accordance with the provisions of Section 9 hereof), or such other
time as shall be agreed upon by the Representative and the Company.
(f) Payment
of the purchase price for the Additional Shares shall be made by wire transfer
in immediately available funds to or as directed by the Company upon delivery
of
certificates for the Additional Shares to the Representative through the
facilities of The Depository Trust Company for the respective accounts of the
several Underwriters. Certificates for the Additional Shares shall be registered
in such name or names and shall be in such denominations as the Representative
may request at least two (2) business days before the Additional Closing Date.
The Company will permit the Representative to examine and package such
certificates for delivery at least one full business day prior to the Additional
Closing Date.
(g) On
the
Closing Date, the Company will further issue and sell to the Representative
or,
at the direction of the Representative, to other Underwriters or selling group
members or bona fide officers of the Underwriters or selling group members,
for
an aggregate purchase price of $100, warrants to purchase Common Stock (the
“Representative’s
Warrant”)
entitling the holders thereof to purchase an aggregate of _______ shares of
Common Stock (representing 8% of the total number of Firm Shares being sold
in
the Offering, but excluding the Stockholder Shares (as defined in Section
5(a),
on which no warrant coverage will be granted)), plus an aggregate number of
shares of Common Stock equal to 8% of the total number of Additional Shares
sold
in the Offering, for a period of five years from the effective date of the
Registration Statement commencing on the one (1) year anniversary of the
effective date of the Registration Statement. The Representative’s Warrant shall
be exercisable at a price equal to 120% of the initial public offering price
of
the Common Stock and shall contain terms and provisions more fully described
herein below and as set forth more particularly in the Representative’s Warrant
to be executed by the Company on the effective date of the Registration
Statement, including, but not limited to: (i) one demand and unlimited piggyback
registration rights for a period of seven years from the effective date of
the
Registration Statement, (ii) cashless exercise; (iii) customary anti-dilution
provisions in the event of stock dividends, splits, mergers, sales of all or
substantially all of the Company’s assets and other similar events; and (iv)
customary terms requiring the Company to make adequate provisions to preserve,
in substance, the rights and powers incidental to the Representative’s Warrant
in the event mergers, consolidations or other reorganizations of or by the
Company during the five-year period following the effective date of the
Registration Statement. The Representative’s Warrant shall not be redeemable. As
provided in the Representative’s Warrant, the Representative may designate that
the Representative’s Warrant be issued in varying amounts directly to other
Underwriters and selling group members and to bona fide officers of the
Underwriters and selling group members. As further provided, no sale, transfer,
assignment, pledge or hypothecation of the Representative’s Warrant shall be
made for a period of 6 months from the effective date of the Registration
Statement, except: (a) by operation of law or reorganization of the Company,
or
(b) to the Underwriters and bona fide partners, officers of the Underwriters
and
selling group members.
Stanford
Group Company
__________
___, 2007
Page 20
of
38
3. Offering.
Upon
authorization of the release of the Firm Shares or, as the case may be, the
Additional Shares, by the Representative, the Underwriters propose to offer
the
Shares for sale to the public upon the terms and conditions set forth in the
Prospectus.
4. Covenants
of the Company.
The
Company acknowledges, covenants and agrees with the Underwriters
that:
(a) The
Registration Statement and any amendments thereto have been declared effective,
and if Rule 430A is used or the filing of the Prospectus is otherwise required
under Rule 424(b), the Company will file the Prospectus (properly completed
if
Rule 430A has been used) pursuant to Rule 424(b) within the prescribed time
period and will provide evidence satisfactory to the Representative of such
timely filing.
(b) The
Company will promptly notify the Representative (and, if requested by the
Representative, will confirm such notice in writing): (i) when the Registration
Statement and any amendments thereto become effective, (ii) of any request
by
the Commission for any amendment of or supplement to the Registration Statement,
the Sale Preliminary Prospectus or the Prospectus or for any additional
information, (iii) of the Company’s intention to file or prepare any supplement
or amendment to the Registration Statement or the Prospectus, (iv) of the
mailing or the delivery to the Commission for filing of any amendment of or
supplement to the Registration Statement, the Sale Preliminary Prospectus or
the
Prospectus, including but not limited to Rule 462(b) under the Securities Act,
(v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereto or of the initiation, or the threatening, of any proceedings therefor,
it being understood that the Company shall make every effort to avoid the
issuance of any such stop order, (vi) of the receipt of any comments from the
Commission, and (vii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for that
purpose. If the Commission shall propose or enter a stop order at any time,
the
Company will use its best efforts to prevent the issuance of any such stop
order
and, if issued, to obtain the lifting of such order as promptly as is reasonably
practicable. The Company will not file any amendment to the Registration
Statement or any amendment of or supplement to the Sale Preliminary Prospectus
or the Prospectus (including the prospectus required to be filed pursuant to
Rule 424(b)) that differs from the prospectus on file at the time of the
effectiveness of the Registration Statement or file any document under the
Exchange Act if such document would be deemed to be incorporated by reference
into the Prospectus to which the Representative shall reasonably object in
writing after being timely furnished in advance a copy thereof. The Company
will
provide the Representative with copies of all such amendments, filings and
other
documents a sufficient time prior to any filing or other publication thereof
to
permit and afford the Representative a reasonable opportunity and time to review
and comment thereon.
Stanford
Group Company
__________
___, 2007
Page 21
of
38
(c) The
Company shall comply with the Securities Act, the Exchange Act and all
applicable Rules and Regulations to permit completion of the distribution as
contemplated in this Agreement, the Registration Statement and the Prospectus.
If, at any time when a prospectus relating to the Shares is required to be
delivered under the Securities Act, the Exchange Act and all applicable Rules
and Regulations in connection with the sales of Shares, any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would, in the judgment of the Underwriters or the Company, include an untrue
statement of a material fact or omit to state any material fact required to
be
stated therein or necessary to make the statements therein, in the light of
the
circumstances existing at the time of delivery to the purchaser, not misleading,
or if, to comply with the Securities Act, the Exchange Act or the Rules and
Regulations, it shall be necessary at any time to amend or supplement the
Prospectus or Registration Statement, or to file any document which is an
exhibit to the Registration Statement or the Prospectus or in any amendment
thereof or supplement thereto, the Company will notify the Representative
promptly and prepare and file with the Commission, subject to Section 4(a)
hereof, an appropriate amendment or supplement (in form and substance reasonably
satisfactory to the Representative) which will correct such statement or
omission or which will effect such compliance and will use its best efforts
to
have any amendment to the Registration Statement declared effective as promptly
as is reasonably possible.
(d) The
Company will promptly deliver to the Underwriters and Underwriters’ Counsel a
signed copy of the Registration Statement, as initially filed and all amendments
thereto, including all consents and exhibits filed therewith, and will maintain
in the Company’s files manually signed copies of such documents for at least
five (5) years after the date of filing thereof. The Company will promptly
deliver to each of the Underwriters such number of copies of the Sale
Preliminary Prospectus, the Prospectus, the Registration Statement, and all
amendments of and supplements to such documents, if any, and all documents
which
are exhibits to the Registration Statement and Prospectus or any amendment
thereof or supplement thereto, as the Underwriters may reasonably request.
On
the business day next succeeding the date of this Agreement and from time to
time thereafter, the Company will furnish the Underwriters with copies of the
Prospectus in New York City in such quantities as the Underwriters may
reasonably request.
Stanford
Group Company
__________
___, 2007
Page 22
of
38
(e) The
Company consents to the use and delivery of the Sale Preliminary Prospectus
by
the Underwriters in accordance with Rule 430 and Section 4(b) of the Securities
Act.
(f) If
the Company elects to rely on Rule 462(b) under the Securities Act, the Company
shall both file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees in accordance with
Rule
111 under Securities Act by the earlier of: (i) 10:00 p.m., New York City time,
on the date of this Agreement, and (ii) the time that confirmations are given
or
sent, as specified by Rule 462(b)(2).
(g) During
the period of 180 days after the effective date of the Registration Statement,
the Company will not, and will cause its Affiliates not to, directly or
indirectly, take any action which constitutes or is designed to cause or result
in, or which could reasonably be expected to constitute, cause or result in,
the
stabilization or manipulation of the price of any security to facilitate the
sale or resale of the Shares.
(h) The
Company will use its reasonable best efforts, in cooperation with the
Representative, at or prior to the time of effectiveness of the Registration
Statement, to qualify the Shares for offering and sale under the securities
laws
relating to the offering or sale of the Shares of such jurisdictions, domestic
or foreign, as the Representative may reasonably designate and to maintain
such
qualification in effect for so long as required for the distribution thereof;
except that in no event shall the Company be obligated in connection therewith
to qualify as a foreign corporation or to execute a general consent to service
of process.
(i) The
Company will make generally available to its security holders and to the
Underwriters as soon as practicable, but in any event not later than twelve
(12)
months after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Securities Act), an audited earnings statement of the
Company complying with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158).
(j) During
the twelve (12) months following the Closing Date, without the consent of the
Representative which shall not be unreasonably withheld, the Company will not
file any registration statement relating to the offer or sale of any of the
Company’s securities, including any Registration Statement on Form S-8, except:
a Form S-8 filed with the Commission in connection with the Company’s 2002
Equity Incentive Plan, 2004 Equity Incentive Plan and 2007 Equity Incentive
Plan.
Stanford
Group Company
__________
___, 2007
Page 23
of
38
(k) Prior
to
the Closing Date, each
of
the Company’s officers and directors and stockholders (the “Lock-Up
Parties”)
who
own any of the Company’s outstanding shares of Common Stock, or warrants or
options to purchase Common Stock or other securities convertible into Common
Stock shall enter into a written “lock-up” agreement in the form attached hereto
as Annex
IV.
Prior
to the Closing, Maxim Group LLC and the Representative shall assign to the
Representative and/or enter into an agreement pursuant to which Maxim Group
LLC
shall agree not to waive the requirements of any lock-up agreement
previously executed in favor of Maxim Group LLC without
the prior written consent of
the
Representative and
the
Representative shall be afforded all rights of Maxim Group LLC
thereunder.
(l) During
the twelve (12) month period following the Closing Date, the Company shall
not,
without the prior written consent of the Representative, offer, sell or
distribute any of its equity securities or securities convertible into or
exercisable for equity securities, other than: (i) pursuant the Company’s 2007
Equity Incentive Plan or (ii) pursuant to the terms of any securities
exercisable or convertible into shares of the Company’s capital stock that are
outstanding at the Closing Date. The foregoing shall not preclude the Company
from undertaking bank or other similar loans or debt financing which do not
contain an equity component.
(m) During
the twelve (12) months following the Closing, the Company shall not offer,
sell
or distribute any convertible securities convertible at a price that may, at
the
time of conversion, be less than the Fair Market Value of the Common Stock
on
the date of the original sale, without the consent of the Representative, which
consent shall not be unreasonably withheld. For purposes of this Section 4,
the
term “Fair
Market Value”
shall
mean the greater of: (i) the average of the volume weighted average price of
the
Company’s common stock for each of the 30 trading days prior to the date of the
original sale; and (ii) the last sale price of the Common Stock, during normal
operating hours, as reported on the AMEX, or any other exchange or electronic
quotation system on which the Common Stock is then listed.
(n) Promptly
following the Closing, the Company, at its expense, shall use its commercially
reasonable best efforts to obtain and keep
current a listing in the Mergent Manual (it being agreed that the Company shall
use
its commercially reasonable best efforts to keep
current such listing for a period of three (3) years from the date such listing
is obtained).
(o) The
Company will not issue press releases or engage in any other publicity, without
the Representative’s prior written consent for a period ending at 5:00 p.m.
Eastern time on the first business day following the thirtieth (30th) day
following the Closing Date.
(p) The
Company will use commercially reasonable best efforts to maintain its key person
life insurance with a insurer rated at least AA or better in the most recent
addition of “Best’s Life Reports” in the amount of $1,000,000 on the life of
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ in full force and effect for a period of three (3) years from
the
Closing Date. The Company shall be the sole beneficiary of such
policy.
Stanford
Group Company
__________
___, 2007
Page 24
of
38
(q) Upon
conclusion of the Offering, the Company will engage (for no less than two (2)
years from the Closing Date) a financial public relations firm mutually
acceptable to the Company and the Representative.
(r) The
Company has retained a transfer agent reasonably acceptable to the
Representative for the Shares and shall continue to retain such transfer agent
(or another transfer agent reasonably acceptable to the Representative) for
a
period of two (2) years following the Closing Date.
(s) The
Company will apply the net proceeds from the sale of the Shares as set forth
(and subject to the qualifications described) under the caption “Use of
Proceeds” in the Prospectus. Without
the written consent of the Representative, no proceeds of the Offering will
be
used to pay outstanding loans from officers, directors or stockholders or to
pay
any accrued salaries or bonuses to any employees or former employees, except
as
disclosed in the Prospectus and except for payments of accrued salaries to
any
employees in the ordinary course of business consistent with the Company’s past
payroll practices.
(t) The
Company will use its commercially reasonable best efforts to effect and maintain
the listing of the Shares on the AMEX.
(u) The
Company, during the period when the Prospectus is required to be delivered
under
the Securities Act or the Exchange Act, will file all documents required to
be
filed with the Commission pursuant to the Securities Act, the Exchange Act
and
the Rules and Regulations within the time periods required thereby.
(v) The
Company will do and perform all things set forth herein or reasonably required
to be done or performed under this Agreement by the Company prior to the Closing
Date or the Additional Closing Date, as the case may be, and satisfy all
conditions precedent to the delivery of the Firm Shares and the Additional
Shares.
(w) The
Company shall cause to be prepared and delivered to the Representative, at
its
expense, within one (1) business day from the effective date of this Agreement,
an Electronic Prospectus
to be used by the Underwriters in connection with the Offering. As used herein,
the term “Electronic
Prospectus”
means a form of prospectus, and any amendment or supplement thereto, that meets
each of the following conditions: (i) it shall be encoded in an electronic
format, reasonably satisfactory to the Representative, that may be transmitted
electronically by the other Underwriters to offerees and purchasers of the
Shares for at least the period during which a Prospectus relating to the Shares
is required to be delivered under the Securities Act; (ii) it shall disclose
the
same information as the paper prospectus and prospectus filed pursuant to ▇▇▇▇▇,
except to the extent that graphic and image material cannot be disseminated
electronically, in which case such graphic and image material shall be replaced
in the electronic prospectus with a fair and accurate narrative description
or
tabular representation of such material, as appropriate; and (iii) it shall
be
in or convertible into a paper format or an electronic format, satisfactory
to
the Representative, that will allow recipients thereof to store and have
continuously ready access to the prospectus at any future time, without charge
to such recipients (other than any fee charged for subscription to the Internet
as a whole and for on-line time). The Company hereby confirms that it has
included or will include in the Prospectus filed pursuant to ▇▇▇▇▇ or otherwise
with the Commission and in the Registration Statement at the time it was
declared effective an undertaking that, upon receipt
of a request by an investor or his or her representative within the period
when
a prospectus relating to the Shares is required to be delivered under the
Securities Act, the Company shall transmit or cause to be transmitted promptly,
without charge, a paper copy of the Prospectus.
Stanford
Group Company
__________
___, 2007
Page 25
of
38
(x) The
Company represents and agrees that, unless it obtains the prior consent of
Representative, it has not made and will not make any offer relating to the
Shares that would constitute an “issuer free writing prospectus,” as defined in
Rule 433 promulgated under the Securities Act, or that would otherwise
constitute a “free writing prospectus,” as defined in Rule 405 promulgated
under the Securities Act, required to be filed with the Commission. Any such
free writing prospectus consented to by the Representative is hereinafter
referred to as a “Permitted
Free Writing Prospectus.”
The
Company represents that it has treated or agrees that it will treat each
Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as
defined in Rule 433 promulgated under the Securities Act, and has complied
and will comply with the requirements said Rule 433 applicable to any
Permitted Free Writing Prospectus, including timely filing with the Commission
where required, legending and record keeping.
5. Consideration;
Payment of Expenses.
(a) In
consideration of the services to be provided for hereunder, the Company shall
pay to the Underwriters or their respective designees their pro rata portion
(based on the Shares purchased) of the following compensation:
(i) An
underwriting discount of seven percent (7%) of the gross proceeds of the
Offering; and
(ii) a
non-accountable expense allowance equal to two percent (2%) of the gross
proceeds of the Offering (exclusive of proceeds from the sale of Additional
Shares), less $50,000 previously paid to Maxim Group LLC.
It
is understood and agreed, however, that no
underwriting discounts or commissions or non-accountable expense allowance
shall
be payable to the Underwriters in respect of an amount of Firm Shares (the
“Stockholder
Shares”)
to be
purchased in the Offering at the public offering price by ▇▇▇▇ Capital Ventures,
its affiliates and Radius Ventures (the “Stockholders”)
with
$1.2 million (plus interest accrued as of the Closing Date) to be paid to the
Stockholders out of the proceeds from the Offering in repayment of short-term
loans owed by the Company to the Stockholders and then utilized by such
Stockholders to purchase such Firm Shares. The Representative will arrange
with
its clearing firm for all necessary procedures to effect the payment and
delivery for the Stockholder Shares by the Stockholders as described
above.
Stanford
Group Company
__________
___, 2007
Page 26
of
38
(b) The
Representative reserves the right to reduce any item of its compensation or
adjust the terms thereof as specified herein in the event that a determination
shall be made by FINRA to the effect that the Underwriters’ aggregate
compensation is in excess of FINRA rules or that the terms thereof require
adjustment.
(c) Whether
or not: (i) the transactions are contemplated by this Agreement, (ii) the
Registration Statement and the Prospectus are consummated or (iii) this
Agreement is terminated, the Company hereby agrees to pay all costs and expenses
incident to the performance of its obligations hereunder, including the
following:
(i) all
expenses in connection with the preparation, printing, “edgarization” and filing
of the Registration Statement, any Preliminary Prospectus and the Prospectus
and
any and all amendments and supplements thereto and the mailing and delivering
of
copies thereof to the Underwriters and dealers;
(ii) the
fees,
disbursements and expenses of the Company’s counsel and accountants in
connection with the registration of the Shares under the Securities Act and
the
Offering;
(iii) the
cost
of producing this Agreement and any agreement among Underwriters, blue sky
survey, closing documents and other instruments, agreements or documents
(including any compilations thereof) in connection with the
Offering;
(iv) all
expenses in connection with the qualification of the Shares for offering and
sale under state or foreign securities or blue sky laws, including the fees
and
disbursements of Underwriters’ Counsel as set forth in Section 5(d) hereof in
connection with such qualification and in connection with any blue sky survey
undertaken by such counsel;
(v) the
filing fees incident to securing any required review by FINRA of the terms
of
the Offering;
(vi) all
fees
and expenses in connection with listing the Shares on the AMEX;
(vii) all
expenses of the Company and its representatives incurred in connection with
attending or hosting meetings with prospective purchasers of the Shares
(“Road
Show Expenses”);
(viii) any
stock
transfer taxes incurred in connection with this Agreement or the
Offering;
(ix) the
cost
of preparing stock certificates representing the Shares;
Stanford
Group Company
__________
___, 2007
Page 27
of
38
(x) the
cost
and charges of any transfer agent or registrar for the Shares;
and
(xi) all
other
costs and expenses incident to the performance of the Company obligations
hereunder which are not otherwise specifically provided for in this Section
5.
(d) At
the
Closing,
the
Company shall issue a payment of $5,000 to Underwriters’
Counsel in consideration of “Blue Sky” services rendered
if the
Common Stock sold in this Offering is listed on the AMEX or Nasdaq Global
Market. The
Company shall also
pay, as due, state registration, qualification and filing fees, FINRA filing
fees and accountable out-of-pocket disbursements in connection with such
registration, qualification or filing.
(e) It
is
understood, however, that except as provided in this Section, and Sections
6, 7
and 10 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel. Notwithstanding anything to the contrary
in
this Section 5, in the event that this Agreement is terminated pursuant to
Section 5 or 11(b) hereof, or subsequent to a Material Adverse Change, the
Company will pay all out-of-pocket accountable expenses of the Underwriters
(including but not limited to the reasonable fees and disbursements of counsel
to the Underwriters) incurred in connection herewith, less any amounts
previously advanced to the Representative.
6. Conditions
of Underwriters’ Obligations.
The
obligations of the Underwriters to purchase and pay for the Firm Shares and
the
Additional Shares as provided herein shall be subject to: (i) the accuracy,
in
all material respects, of the representations and warranties of the Company
herein contained, as of the date hereof and as of the Closing Date, (ii) the
absence from any certificates, opinions, written statements or letters furnished
to the Representative or to Underwriters’ Counsel pursuant to this Section 6 of
any material misstatement or omission, (iii) the performance by the Company
of
its obligations hereunder, and (iv) each of the following additional conditions.
For purposes of this Section 6, the terms “Closing Date” and “Closing” shall
refer to the Closing Date for the Firm Shares and any Additional Closing Date,
if different, for the Additional Shares, and each of the foregoing and following
conditions must be satisfied as of each Closing.
(a) The
Registration Statement shall have become effective and all necessary regulatory
or listing approvals shall have been received not later than 5:30 P.M., New
York
time, on the date of this Agreement, or at such later time and date as shall
have been consented to in writing by the Representative. If the Company shall
have elected to rely upon Rule 430A under the Securities Act, the Prospectus
shall have been filed with the Commission in a timely fashion in accordance
with
the terms hereof and a form of the Prospectus containing information relating
to
the description of the Shares and the method of distribution and similar matters
shall have been filed with the Commission pursuant to Rule 424(b) within the
applicable time period; and, at or prior to the Closing Date or the actual
time
of the Closing, no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereof shall have been issued and
no
proceedings therefor shall have been initiated or threatened by the Commission.
Stanford
Group Company
__________
___, 2007
Page 28
of
38
(b) The
Representative shall have received the favorable written opinion of Fulbright
& ▇▇▇▇▇▇▇▇ L.L.P., legal counsel for the Company, dated as of the Closing
Date addressed to the Underwriters substantially in the form attached hereto
as
Annex
I.
(c) The
Representative shall have received the favorable written opinion of ▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, special FDA regulatory counsel for the Company, dated as of the
Closing Date addressed to the Underwriters substantially in the form attached
hereto as Annex
II.
(d) The
Representative shall have received the favorable written opinion of Roylance,
Abrams, Berdo & ▇▇▇▇▇▇▇, L.L.P., special intellectual property counsel for
the Company, dated as of the Closing Date addressed to the Underwriters
substantially in the form attached hereto as Annex
III.
(e) All
corporate action and regulatory proceedings taken in connection with the sale
of
the Firm Shares and the Additional Shares as herein contemplated shall be
reasonably satisfactory in form and substance in all material respects to the
Representative and to Underwriters’ Counsel.
(f) The
Representative shall have received a certificate of the Chief Executive Officer
and Chief Financial Officer of the Company, dated as of the Closing Date to
the
effect that: (i) the condition set forth in subsection (a) of this Section
6 has
been satisfied, (ii) as of the date hereof and as of the applicable Closing
Date, the representations and warranties of the Company set forth in Section
1
hereof are accurate in all material respects, (iii) as of the applicable Closing
Date, all agreements, conditions and obligations of the Company to be performed
or complied with hereunder on or prior thereto have been duly performed or
complied with, (iv) the Company has not sustained any Material Adverse Change
subsequent to the respective dates as of which information is given in the
Registration Statement, the Sale Preliminary Prospectus and the Prospectus,
(v)
no stop order suspending the effectiveness of the Registration Statement or
any
post-effective amendment thereof has been issued and no proceedings therefor
have been initiated or threatened by the Commission and (vi) there are no pro
forma or as adjusted financial statements that are required to be included
in
the Registration Statement, the Sale Preliminary Prospectus and the Prospectus
pursuant to the Rules and Regulations which are not so included.
(g) On
the date of this Agreement, on the Closing Date and, as the case may be, on
each
Additional Closing Date, the Representative shall have received a “cold comfort”
letter from PwC
dated,
respectively, as of the date of the date of delivery and addressed to the
Underwriters and in form and substance reasonably satisfactory to the
Representative and Underwriters’ Counsel,
confirming that they are independent certified public accountants with respect
to the Company within the meaning of the Securities Act and the Rules and
Regulations, and stating, as of the date of delivery (or, with respect to
matters involving changes or developments since the respective dates as of
which
specified financial information is given in the Prospectus,
as of a date not more than five (5) days prior to the date of such letter),
the
conclusions and findings of such firm with respect to the financial information
and other matters relating to the Registration Statement covered by such letter
and, with respect to letters issued as of Additional Closing Dates, confirming
the conclusions and findings set forth in such prior letter.
Stanford
Group Company
__________
___, 2007
Page 29
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38
(h) Subsequent
to the execution and delivery of this Agreement or, if earlier, the dates as
of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto),
there shall not have been any change in the capital stock or long-term debt
of
the Company or any change or development involving a change, whether or not
arising from transactions in the ordinary course of business, in the business,
condition (financial or otherwise), results of operations, stockholders’ equity,
properties or prospects (as such prospects are described in the Registration
Statement, the Sale Preliminary Prospectus and the Prospectus) of the Company,
including but not limited to the occurrence of any fire, flood, storm,
explosion, accident, act of war or terrorism or other calamity, the effect
of
which, in any such case described above, is, in the reasonable judgment of
the
Representative, so material and adverse as to make it impracticable or
inadvisable to proceed with the Offering on the terms and in the manner
contemplated in the Prospectus (exclusive of any supplement).
(i) The
Representative shall have received a lock-up agreement from each Lock-Up Party,
duly executed by the applicable Lock-Up Party, in each case substantially in
the
form attached hereto as Annex
IV.
(j) The
Shares shall have been approved for listing on the AMEX.
(k) FINRA
shall have confirmed that it has not raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
(l) No
action
shall have been taken and no statute, rule, regulation or order shall have
been
enacted, adopted or issued by any federal, state or foreign governmental or
regulatory authority that would, as of the Closing Date, prevent the issuance
or
sale of the Shares; and no injunction or order of any federal, state or foreign
court shall have been issued that would, as of the Closing Date, prevent the
issuance or sale of the Shares.
(m) The
Company shall have furnished the Underwriters and Underwriters’ Counsel with
such other certificates, opinions or other documents (including a customary
certificate of the Company’s Secretary) as they may have reasonably
requested.
Stanford
Group Company
__________
___, 2007
Page 30
of
38
If
any of
the conditions specified in this Section 6 shall not have been fulfilled when
and as required by this Agreement, or if any of the certificates, opinions,
written statements or letters furnished to the Representative or to
Underwriters’ Counsel pursuant to this Section 6 shall not be reasonably
satisfactory in form and substance to the Representative and to Underwriters’
Counsel, all obligations of the Underwriters hereunder may be cancelled by
the
Representative at, or at any time prior to, the consummation of the Closing,
and
the obligations of the Underwriters to purchase the Additional Shares may be
cancelled by the Representative at, or at any time prior to, the Additional
Closing Date. Notice of such cancellation shall be given to the Company in
writing, or by telephone. Any such telephone notice shall be confirmed promptly
thereafter in writing.
Stanford
Group Company
__________
___, 2007
Page 31
of
38
7. Indemnification.
(a) The
Company shall indemnify and hold harmless each Underwriter and each Person,
if
any, who controls each Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any and all losses,
liabilities, claims, damages and expenses whatsoever as incurred (including,
but
not limited to, reasonable attorneys’ fees and any and all reasonable,
out-of-pocket expenses incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and any and
all amounts paid in settlement of any claim or litigation), joint or several,
to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon
any
untrue statement or alleged untrue statement of a material fact made by such
party contained in the Registration Statement, as originally filed or any
amendment thereof, or any related Preliminary Prospectus (including the Sale
Preliminary Prospectus) or the Prospectus, or in any supplement thereto or
amendment thereof, or arise out of or are based upon the omission or alleged
omission made by such party to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided,
however,
that the
Company will not be liable in any such case to the extent but only to the extent
that any such loss, liability, claim, damage or expense arises out of or is
based upon any such untrue statement or alleged untrue statement or omission
or
alleged omission made therein in reliance upon and in conformity with the
Underwriters’ Information. This indemnity agreement will be in addition to any
liability, which the Company may otherwise have, including but not limited
to
other liability under this Agreement.
(b) Each
Underwriter, severally and not jointly, shall indemnify and hold harmless the
Company, each of the directors of the Company (including any Person who, with
his or her consent, is named in the Registration Statement as about to become
a
director of the Company), each of the officers of the Company who shall have
signed the Registration Statement, and each other Person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or Section
20
of the Exchange Act, against any losses, liabilities, claims, damages and
expenses whatsoever as incurred (including but not limited to reasonable
attorneys’ fees and reasonable out-of-pocket expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them
may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, as
originally filed or any amendment thereof, or any related Preliminary Prospectus
(including the Sale Preliminary Prospectus) or the Prospectus, or in any
amendment thereof 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 not misleading,
in
each case to the extent, but only to the extent, that any such loss, liability,
claim, damage or expense arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with the Underwriters’ Information;
provided,
however,
that in
no case shall any Underwriter be liable or responsible for any amount in excess
of the underwriting discount applicable to the Shares to be purchased by such
Underwriter hereunder. This indemnity agreement will be in addition to any
liability, which the Underwriters may otherwise have, including but not limited
to other liability under this Agreement.
Stanford
Group Company
__________
___, 2007
Page 32
of
38
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of any claims or the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom indemnification
is
to be sought in writing of the claim or the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve the indemnifying
party from any liability which it may have under this Section 7 to the extent
that it is not materially prejudiced as a result thereof and in any event shall
not relieve it from any liability that such indemnifying party may have
otherwise than on account of the indemnity agreement hereunder). In case any
such claim or action is brought against any indemnified party, and it notifies
an indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate, at its own expense in the defense of such action,
and to the extent it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof with counsel satisfactory to such indemnified
party; provided however, that counsel to the indemnifying party shall not
(except with the written consent of the indemnified party) also be counsel
to
the indemnified party. Notwithstanding the foregoing, the indemnified party
or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of
such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, (iii) the
indemnifying party does not diligently defend the action after assumption of
the
defense, or (iv) such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different
from or additional to those available to one or all of the indemnifying parties
(in which case the indemnifying parties shall not have the right to direct
the
defense of such action on behalf of the indemnified party or parties), in any
of
which events such fees and expenses of one (1) such counsel shall be borne
by
the indemnifying parties. No indemnifying party shall, without the prior written
consent of the indemnified parties, effect any settlement or compromise of,
or
consent to the entry of judgment with respect to, any pending or threatened
claim, investigation, action or proceeding in respect of which indemnity or
contribution may be or could have been sought by an indemnified party under
this
Section 7 or Section 8 hereof (whether or not the indemnified party is an actual
or potential party thereto), unless (x) such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such claim, investigation, action or proceeding and
(ii) does not include a statement as to or an admission of fault, culpability
or
any failure to act, by or on behalf of the indemnified party, and (y) the
indemnifying party confirms in writing its indemnification obligations hereunder
with respect to such settlement, compromise or judgment.
Stanford
Group Company
__________
___, 2007
Page 33
of
38
8. Contribution.
In
order to provide for contribution in circumstances in which the indemnification
provided for in Section 7 hereof is for any reason held to be unavailable from
any indemnifying party or is insufficient to hold harmless a party indemnified
thereunder, the Company
and the
Underwriters shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Company, any
contribution received by the Company from Persons, other than the Underwriters,
who may also be liable for contribution, including Persons who control the
Company within the meaning of Section 15 of the Securities Act or Section 20
of
the Exchange Act, officers of the Company who signed the Registration Statement
and directors of the Company) as incurred to which the Company and one or more
of the Underwriters may be subject, in such proportions as is appropriate to
reflect the relative benefits received by the Company
and the
Underwriters from the Offering or, if such allocation is not permitted by
applicable law, in such proportions as are appropriate to reflect not only
the
relative benefits referred to above but also the relative fault of the
Company and
the
Underwriters in connection with the statements or omissions which resulted
in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Company
and the
Underwriters shall be deemed to be in the same proportion as: (x) the total
proceeds from the Offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company bears
to
(y) the underwriting discount or commissions received by the Underwriters,
in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault of each of the Company
and of
the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company
or the
Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Company
and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation (even if
the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this Section. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred
to
above in this Section 8 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
judicial, regulatory or other legal or governmental agency or body, commenced
or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission. Notwithstanding the provisions of
this Section 8: (i) no Underwriter shall be required to contribute any amount
in
excess of the amount by which the discounts and commissions applicable to the
Shares underwritten by it and distributed to the public exceeds the amount
of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission
and
(ii) no Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any
Person who was not guilty of such fraudulent misrepresentation. For purposes
of
this Section 8, each Person, if any, who controls an Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as such Underwriter, and each Person,
if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject
in
each case to clauses (i) and (ii) of the immediately preceding sentence. Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect
of
which a claim for contribution may be made against another party or parties,
notify each party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they
may
have under this Section 8 or otherwise. The obligations of the Underwriters
to
contribute pursuant to this Section 8 are several in proportion to the
respective number of Shares to be purchased by each of the Underwriters
hereunder and not joint.
Stanford
Group Company
__________
___, 2007
Page 34
of
38
9. Underwriter
Default.
(a) If
any
Underwriter or Underwriters shall default in its or their obligation to purchase
Firm Shares or Additional Shares hereunder, and if the Firm Shares or Additional
Shares with respect to which such default relates (the “Default
Shares”)
do not
(after giving effect to arrangements, if any, made by the Representative
pursuant to subsection (b) below) exceed in the aggregate 10% of the number
of
Firm Shares or Additional Shares, each non-defaulting Underwriter, acting
severally and not jointly, agrees to purchase from the Company that number
of
Default Shares that bears the same proportion of the total number of Default
Shares then being purchased as the number of Firm Shares set forth opposite
the
name of such Underwriter on Schedule
A
hereto
bears to the aggregate number of Firm Shares set forth opposite the names of
the
non-defaulting Underwriters, subject, however, to such adjustments to eliminate
fractional shares as the Representative in its sole discretion shall make.
(b) In
the
event that the aggregate number of Default Shares exceeds 10% of the number
of
Firm Shares or Additional Shares, as the case may be, the Representative may
in
its discretion arrange for itself or for another party or parties (including
any
non-defaulting Underwriter or Underwriters who so agree) to purchase the Default
Shares on the terms contained herein. In the event that within five calendar
days after such a default the Representative does not arrange for the purchase
of the Default Shares as provided in this Section 9, this Agreement or, in
the
case of a default with respect to the Additional Shares, the obligations of
the
Underwriters to purchase and of the Company to sell the Additional Shares shall
thereupon terminate, without liability on the part of the Company with respect
thereto (except in each case as provided in Sections 5, 7, 8, 10 and 11(d))
or
the Underwriters, but nothing in this Agreement shall relieve a defaulting
Underwriter or Underwriters of its or their liability, if any, to the other
Underwriters and the Company for damages occasioned by its or their default
hereunder.
(c) In
the
event that any Default Shares are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
the Representative or the Company shall have the right to postpone the Closing
Date or Additional Closing Date, as the case may be for a period, not exceeding
five (5) business days, in order to effect whatever changes may thereby be
made
necessary in the Registration Statement or the Prospectus or in any other
documents and arrangements, and the Company agrees to file promptly any
amendment or supplement to the Registration Statement or the Prospectus which,
in the reasonable opinion of Underwriters’ Counsel, may thereby be made
necessary or advisable. The term “Underwriter” as used in this Agreement shall
include any party substituted under this Section 9 with like effect as if it
had
originally been a party to this Agreement with respect
to such Firm Shares and Additional Shares.
Stanford
Group Company
__________
___, 2007
Page 35
of
38
10. Survival
of Representations and Agreements.
All
representations and warranties, covenants and agreements of the Company and
the
Underwriters contained in this Agreement or in certificates of officers of
the
Company submitted pursuant hereto, including the agreements contained in Section
5, the indemnity agreements contained in Section 7 and the contribution
agreements contained in Section 8 hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter or any controlling Person thereof or by or on behalf of the Company,
any of its officers and directors or any controlling Person thereof, and shall
survive delivery of and payment for the Shares to and by the Underwriters.
The
covenants and agreements contained in Sections 5, 7, 8, this Section 10 and
Sections 14 and 15 hereof shall survive any termination of this Agreement,
including termination pursuant to Section 9 or 11 hereof.
11. Effective
Date of Agreement; Termination.
(a) This
Agreement shall become effective upon the later of: (i) receipt by the
Representative and the Company of notification of the effectiveness of the
Registration Statement or (ii) the execution of this Agreement. Notwithstanding
any termination of this Agreement, the provisions of this Section 11 and of
Sections 1, 4, 6, 7 and 11 through 16, inclusive, shall remain in full force
and
effect at all times after the execution hereof.
(b) The
Representative shall have the right to terminate this Agreement at any time
prior to the consummation
of the Closing
or
to
terminate the obligations of the Underwriters to purchase the Additional Shares
at any time prior to the
consummation of any closing to occur on an Additional
Closing Date, as the case may be, if: (i) a Material Adverse Change with respect
to the Company shall have occurred; or (ii) any domestic or international event
or act or occurrence has materially disrupted, or in the reasonable opinion
of
the Representative will in the immediate future materially disrupt, the market
for the Company’s securities or securities in general; or (iii) trading on the
New York Stock Exchange, The NASDAQ Global Market, the NASDAQ Capital Market
or
the AMEX shall
have been suspended or been made subject to material limitations, or minimum
or
maximum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required, on the New York Stock Exchange, The
NASDAQ Global
Market,
the
NASDAQ Capital Market or
the AMEX
or by order of the Commission or any other governmental authority having
jurisdiction; or (iv) a banking moratorium has been declared by any state or
federal authority or if any material disruption in commercial banking or
securities settlement or clearance services shall have occurred; or (v) (A)
there shall have occurred any outbreak or escalation of hostilities or acts
of
terrorism involving the United States or there is a declaration of a national
emergency or war by the United States or (B) there shall have been any other
calamity or crisis or any change in political, financial or economic conditions
if the effect of any such event in (A) or (B), in the reasonable
judgment
of the Representative, makes it impracticable or inadvisable to proceed with
the
offering, sale and delivery of the Firm Shares or the Additional Shares, as
the
case may be, on the terms and in the manner contemplated by the
Prospectus.
Stanford
Group Company
__________
___, 2007
Page 36
of
38
(c) Any
notice of termination pursuant to this Section 11 shall be in
writing.
(d) If
this
Agreement shall be terminated pursuant to any of the provisions hereof (other
than pursuant to Section 9(b) hereof), or if the sale of the Shares provided
for
herein is not consummated because any condition to the obligations of the
Underwriters set forth herein is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof, the Company will, subject to demand by
the
Representative, reimburse the Underwriters for all out-of-pocket expenses
(including the fees and expenses of their counsel), incurred by the Underwriters
in connection herewith.
(e) If
the
Company elects to terminate the Offering for any reason and the Representative
was prepared to proceed with the Offering reasonably within the intent of this
Agreement and, thereafter, the Company engages a different lead or managing
underwriter to conduct an initial public offering within one year of the date
of
termination of this Agreement by the Company, the Company will agree to exercise
its commercially reasonable best efforts to recommend to the lead underwriter
or
managing underwriter that the Representative be permitted to participate in
such
initial public offering up to 33% of such offering upon such terms as the
parties may mutually agree, such terms to be set forth in a separate engagement
letter or other agreement between the parties, but in no event on less favorable
terms than offered by the lead or managing underwriter to any other investment
bank retained in such initial public offering.
12. Notices.
All
communications hereunder, except as may be otherwise specifically provided
herein, shall be in writing, and:
(a) if
sent
to the Representative or any Underwriter, shall be mailed, delivered, or faxed
and confirmed in writing, Stanford Group Company, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇, Director of Investment Banking, in each
case, with a copy to Underwriters’ Counsel at Ellenoff ▇▇▇▇▇▇▇▇ & Schole
LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.;
and
(b) if
sent
to the Company shall be mailed, delivered, or faxed and confirmed in writing
to
the Company at the addresses set forth in the Registration Statement, with
a
copy to Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq.;
Stanford
Group Company
__________
___, 2007
Page 37
of
38
provided,
however,
that any
notice to an Underwriter pursuant to Section 7 shall be delivered or sent by
mail or facsimile transmission to such Underwriter at its address set forth
in
its acceptance facsimile to the Representative, which address will be supplied
to any other party hereto by the Representative upon request. Any such notices
and other communications shall take effect at the time of receipt thereof.
13. Parties.
This
Agreement shall inure solely to the benefit of, and shall be binding upon,
the
Underwriters, the Company and the controlling Persons, directors, officers,
employees and agents referred to in Sections 6 and 7 hereof, and their
respective successors 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 provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be
for
the sole and exclusive benefit of the parties hereto and said controlling
Persons and their respective successors, officers, directors, heirs and legal
representatives, and it is not for the benefit of any other Person. The term
“successors and assigns” shall not include a purchaser, in its capacity as such,
of Shares from any of the Underwriters.
14. Governing
Law.
This
Agreement shall be deemed to have been executed and delivered in New York and
both this Agreement and the transactions contemplated hereby shall be governed
as to validity, interpretation, construction, effect, and in all other respects
by the laws of the State of New York, without regard to the conflicts of laws
principals thereof (other than Section 5-1401 of The New York General
Obligations Law). Each of the Underwriters and the Company: (a) agrees that
any
legal suit, action or proceeding arising out of or relating to this Agreement
and/or the transactions contemplated hereby shall be instituted exclusively
in
the Supreme Court of the State of New York, New York County, or in the United
States District Court for the Southern District of New York, (b) waives any
objection which it may have or hereafter to the venue of any such suit, action
or proceeding, and (c) irrevocably consents to the jurisdiction of Supreme
Court
of the State of New York, New York County, or in the United States District
Court for the Southern District of New York in any such suit, action or
proceeding. Each of the Underwriters and the Company further agrees to accept
and acknowledge service of any and all process which may be served in any such
suit, action or proceeding in the Supreme Court of the State of New York, New
York County, or in the United States District Court for the Southern District
of
New York and agrees that service of process upon the Company mailed by certified
mail to the Company’s address or delivered by Federal Express via overnight
delivery shall be deemed in every respect effective service of process upon
the
Company, in any such suit, action or proceeding, and service of process upon
the
Underwriters mailed by certified mail to the Underwriters’ address or delivered
by Federal Express via overnight delivery shall be deemed in every respect
effective service process upon the Underwriter, in any such suit, action or
proceeding. THE COMPANY (ON BEHALF OF ITSELF AND, TO THE FULLEST EXTENT
PERMITTED BY LAW, ON BEHALF OF ITS RESPECTIVE EQUITY HOLDERS AND CREDITORS)
HEREBY WAIVES ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
CLAIM
BASED UPON, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE REGISTRATION STATEMENT, THE
SALE PRELIMINARY PROSPECTUS AND THE PROSPECTUS.
Stanford
Group Company
__________
___, 2007
Page 38
of
38
15. No
Fiduciary Relationship.
The
Company hereby acknowledges that the Underwriters are acting solely as
underwriters in connection with the offering of the Company’s securities. The
Company further acknowledges that the Underwriters are acting pursuant to a
contractual relationship created solely by this Agreement entered into on an
arm’s length basis and in no event do the parties intend the Underwriters act or
be responsible as a fiduciary to the Company, their respective management,
stockholders, equity holders, creditors or any other person in connection with
any activity the Underwriters may undertake or have undertaken in furtherance
of
the offering of the Company’s securities, either before or after the date
hereof. The Underwriters hereby expressly disclaim any fiduciary or similar
obligations to the Company, either in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions,
and the Company hereby confirms its understanding and agreement to that effect.
The Company and the Underwriters agree they are each responsible for making
their own independent judgments with respect to any such transactions, and
any
opinions or views expressed by the Underwriters to the Company regarding such
transactions, including but not limited to any opinions or views with respect
to
the price or market for the Company’s securities, do not constitute advice or
recommendations to the Company. The Company hereby waives and releases, to
the
fullest extent permitted by law, any claims the Company or their Affiliates
may
have against the Underwriters with respect to any breach or alleged breach
of
any fiduciary or similar duty to the Company in connection with the transactions
contemplated by this Agreement or any matters involving such
transactions.
16. Entire
Agreement.
This
Agreement, together with the schedule and exhibits attached hereto and as the
same may be amended from time to time in accordance with the terms hereof,
contains the entire agreement among the parties hereto relating to the subject
matter hereof and there are no other or further agreements outstanding not
specifically mentioned herein.
17. Severability.
If any
term or provision of this Agreement or the performance thereof shall be invalid
or unenforceable to any extent, such invalidity or unenforceability shall not
affect or render invalid or unenforceable any other provision of this Agreement
and this Agreement shall be valid and enforced to the fullest extent permitted
by law.
18. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument. Delivery of a signed counterpart of this Agreement
by facsimile transmission shall constitute valid and sufficient delivery
thereof.
19. Headings.
The
headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
20. Time
is of the Essence.
Time
shall be of the essence of this Agreement. As used herein, the term “business
day” shall mean any day when the Commission’s office in Washington, D.C. is open
for business.
[Signature
Page Follows]
Stanford
Group Company
__________
___, 2007
Page 39
of
38
If
the
foregoing correctly sets forth your understanding, please so indicate in the
space provided below for that purpose, whereupon this letter shall constitute
a
binding agreement among us.
Very
truly yours,
EYETEL
IMAGING, INC.
By:
________________________________
Name:
Title:
Name:
Title:
Accepted
by the Representative, acting for itself and as
Representative
of the Underwriters named on Schedule
A
attached hereto,
as
of the date first written above:
STANFORD
GROUP COMPANY
By:
_______________________________________
Name:
Title:
Name:
Title:
[Signature
Page to Underwriting Agreement]
SCHEDULE
A
Underwriters
|
Underwriter
|
Total
Number of
Firm
Shares to be
Purchased
|
Number
of Additional
Shares
to be Purchased if
Option
is Fully Exercised
|
|
Stanford
Group Company
|
||
|
Maxim
Group LLC
|
||
|
Jesup
& ▇▇▇▇▇▇ Securities Corporation
|
||
|
TOTAL
|
ANNEX
I
Form
of Opinion of Company Counsel
All
capitalized terms used but not defined in this Annex I shall have the meanings
ascribed to such terms in the Underwriting Agreement to which this Annex is
attached.
1. Such
counsel has been advised orally by the Commission that the Registration
Statement was declared effective under the Securities Act, and, to the knowledge
of such counsel based solely upon oral confirmation by a member of the
Commission’s staff, no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereof has been issued
and no proceedings therefor have been initiated or threatened by the Commission.
All filings required by Rule 424(b) and Rule 430A under the Securities Act
have
been made.
2. The
Registration Statement, the Sale Preliminary Prospectus and the Prospectus
and
any amendments thereof or supplements thereto (except for the financial
statements and notes, together with related financial and accounting data,
included in the Registration Statement, Sale Preliminary Prospectus and the
Prospectus, as to which we express no opinion) appear on their face to comply
as
to form in all material respects with the requirements of the Securities Act
and
the Rules and Regulations. To the best knowledge of such counsel, no contract
or
agreement is required to be filed as an exhibit to the Registration Statement
that is not so filed.
3. The
Company has been incorporated and validly exists as a corporation in good
standing in accordance with and under the laws of the State of Delaware, with
full corporate power and authority to own its properties and conduct its
business as described in the Registration Statement and the Prospectus. The
Company is duly qualified and in good standing as a foreign corporation in
each
of the jurisdictions listed on Schedule A to the opinion.
4. The
Company has full corporate power and authority to execute and deliver the
Underwriting Agreement and the Representative’s Warrant to perform its
obligations hereunder and thereunder. All corporate action required to be taken
for the due and proper authorization, execution and delivery of Underwriting
Agreement, all other Transaction Documents and the Representative’s Warrant and
consummation of the transactions contemplated by the Underwriting Agreement,
the
Registration Statement and the Prospectus and as described in the Registration
Statement and the Prospectus have been duly and validly taken.
5. Each
of
the Underwriting Agreement, the Representative’s Warrant and the Transaction
Documents listed on a schedule to the opinion has been duly and validly
authorized, executed and delivered by the Company. The Underwriting Agreement
and the Representative’s Warrant constitute the legal, valid and binding
obligation of the Company, enforceable in accordance with their respective
terms, except as enforceability may be limited by: (i) applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’
rights generally, (ii) subject to general principles of equity (regardless
of
whether such enforceability is considered in a proceeding in equity or at law),
and (iii) federal and state securities laws and public policy regarding rights
to indemnification and contribution.
I-1
6. The
Company has an authorized capitalization as set forth in the Registration
Statement and the Prospectus. All of the issued and outstanding shares of
capital stock of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and, to such counsel’s knowledge, were issued
in compliance with all applicable federal securities laws, or if not so issued,
the purchasers or grantees thereof have received a rescission offer in
accordance with applicable federal securities laws.
7. The
Shares to be delivered on the Closing Date and, as applicable, the Additional
Closing Date, have been duly and validly authorized and, when delivered in
accordance with Underwriting Agreement, will be duly and validly issued, fully
paid and non-assessable
and will not have been issued in violation of or subject to statutory preemptive
rights or, to such counsel’s knowledge, any contractual preemptive or similar
rights, that entitle or will entitle any Person to acquire any Shares from
the
Company upon issuance or sale thereof.
8. The
Common Stock, the Firm Shares and the Additional Shares conform in all material
respects to the descriptions thereof contained in the Registration Statement
and
the Prospectus.
9. The
Representative’s Warrant is duly authorized and upon payment of the purchase
price specified the Underwriting Agreement will be validly issued and constitute
a valid and binding obligation of the Company, except as enforceability may
be
limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium
or
similar laws affecting creditors’ rights generally, (ii) subject to general
principles of equity (regardless of whether such enforceability is considered
in
a proceeding in equity or at law), and (iii) federal and state securities laws
and public policy regarding rights to indemnification and
contribution.
10. The
shares of Common Stock underlying the Representative’s Warrant will, upon
exercise of the Representative’s Warrant and payment of the exercise price
thereof, be duly and validly issued, fully paid and non-assessable
and will not have been issued in violation of or subject to statutory preemptive
rights or, to such counsel’s knowledge, any contractual preemptive or similar
rights, that entitle or will entitle any Person to acquire any shares
of
Common Stock underlying the Representative’s Warrant from
the Company upon issuance or sale thereof.
11. To
such
counsel’s knowledge, the Company has not, prior to the date hereof, made any
offer or sale of any securities which are required to be “integrated” pursuant
to the Securities Act or the Rules and Regulations with the offer and sale
of
the Shares pursuant to the Registration Statement.
12. To
such
counsel’s knowledge, and other than as set forth in the Prospectus, there are no
judicial, regulatory or other legal or governmental proceedings pending to
which
the Company is a party or of which any property of the Company is the subject
which would not, individually or in the aggregate, have a Material Adverse
Effect. To such counsel’s knowledge, no such proceedings are threatened or
contemplated.
I-2
13. The
execution, delivery, and performance of Underwriting Agreement and the
Representative’s Warrant and consummation of the transactions contemplated
hereby and thereby do not and will not: (a) conflict with or result in a breach
of any of the terms and provisions of, or constitute a default (or an event
which with notice or lapse of time, or both, would constitute a default) under,
or result in the creation or imposition of any lien, charge or encumbrance
upon
any property or assets of the Company pursuant to, any indenture, mortgage,
deed
of trust, loan agreement or any other agreement, instrument, franchise or
license that is filed as an exhibit to the Registration Statement to which
the
Company is a party or by which any of the Company or its properties or assets
may be bound or (b) violate any provision of the certificate of incorporation
or
bylaws of the Company, or, to the knowledge of such counsel, any judgment,
decree, order, statute, rule or regulation of any court or any judicial,
regulatory or other legal or governmental agency or body.
14. No
consent, approval, authorization, order, registration, filing, qualification
or
license of or with any court or any judicial, regulatory or other legal or
governmental agency or body is required for the execution, delivery and
performance of the Underwriting Agreement or consummation of the transactions
contemplated by the Underwriting Agreement, except for: (a) such as may be
required under state securities or blue sky laws or foreign securities laws
in
connection with the purchase and distribution of the Shares by the Underwriters
(as to which such counsel need express no opinion), (b) such as have been made
or obtained under the Securities Act, (c) such as are required by the American
Stock Exchange, and (d) such as are required by FINRA.
15. The
statements under the captions “Description of Capital Stock” and “Underwriting”
(other than “Underwriting - Foreign Regulatory Restrictions on Purchase of
Shares,” as to which we express no opinion) in the Prospectus and Items 24 and
26 of Part II of the Registration Statement, insofar as such statements
constitute a summary of the legal matters, documents or proceedings referred
to
therein, fairly present the information called for with respect to such legal
matters, documents and proceedings.
16. The
Company is not and, after giving effect to the offering and sale of the Shares
and the application of the proceeds thereof as described in the Registration
Statement and the Prospectus, will not be, an “investment company” as such term
is defined in the Investment Company Act of 1940, as amended.
In
addition to the foregoing legal opinions, the opinion letter of counsel shall
contain the following statement (it being understood that such statement itself
shall not constitute a legal opinion): “As counsel, we have represented the
Company in connection with the preparation of the Registration Statement, the
Sale Preliminary Prospectus and the Prospectus and participated in conferences
with officers and representatives of the Company, representatives of the
independent public accountants for the Company and representatives of the
Underwriters at which the contents of the Registration Statement, the Sale
Preliminary Prospectus and the Prospectus and related matters were discussed
and, based on the foregoing (relying as to factual matters in respect of our
determination of materiality to an extent we deem appropriate based upon
discussions with officers and other representatives of the Company), no facts
have come to our attention which lead us to believe that either the Registration
Statement, at the time it became effective (including the information deemed
to
be part of the Registration Statement at the time of effectiveness pursuant
to
Rule 430A(b) or Rule 434, if applicable), or any amendment thereof made prior
to
the Closing Date, as of the date of such amendment, 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 or
that the Prospectus, as of its date (or any amendment thereof or supplement
thereto made prior to the Closing Date as of the date of such amendment or
supplement) and as of the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state any material fact
required to be stated therein or necessary to make the statements therein,
in
light of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no belief or opinion with respect
to
the financial statements and notes, together with related financial and
accounting data, included in or omitted from therein).”
I-3
When
used
in the legal opinion, the term “knowledge” shall mean the actual, current
knowledge (after due investigation) of attorneys of the Firm who have devoted
substantive attention to the transactions to which the opinion
relates.
In
rendering such opinion, such counsel may state that its opinion is limited
to
matters governed by the federal laws of the United States of America, the laws
of the State of New York, and the Delaware General Corporation Law and that
such
counsel is not admitted in the State of Delaware.
I-4
ANNEX
II
Form
of Opinion of Company Regulatory Counsel
All
capitalized terms used but not defined in this Annex II shall have the meanings
ascribed to such terms in the Underwriting Agreement to which this Annex is
attached.
This
firm
has acted in the limited role of regulatory counsel to the Company with respect
to U.S. Food and Drug Administration (“FDA”) regulation only. In such capacity,
we have reviewed certain information under the captions listed on Schedule
A
attached
hereto (the “Regulatory Captions”) in the Company’s Preliminary Prospectus dated
September 21, 2007 (the “Preliminary Prospectus”) and the Final Prospectus dated
October ___, 2007 (the “Final Prospectus”), forming a part of the Company’s
Registration Statement on Form SB-2, as amended (Registration
No. 333-142649) (the “Registration Statement”).
We
have
not been retained or engaged by the Company to perform, nor have we performed,
any review of any other information in the Registration Statement, the
Preliminary Prospectus and the Final Prospectus. Additionally, we have not
been
retained or engaged to provide advice in respect of United States securities
laws or the rules or regulations of the Securities and Exchange Commission
(the
“SEC”) thereunder (the “Rules”), nor have we been retained or engaged by the
Company to provide advice as to whether any information or any statement,
opinion or other writing is required under the United States securities laws
or
the Rules to be filed with or submitted to, or incorporated into any document
that will be filed with or submitted to, the SEC, and the matters addressed
herein should not be construed as such advice.
For
purposes of our opinions, which are set forth below, and other statements made
in this letter, we have examined copies of the documents listed on Schedule
B
attached
hereto and such other agreements, instruments and documents as we have deemed
an
appropriate basis on which to render the opinions hereinafter expressed (the
“Documents”). We believe the Documents provide an appropriate basis on which to
render the opinions hereinafter expressed.
In
our
examination of the Underwriting Agreement and the other Documents, we have
assumed the genuineness of all signatures, the legal capacity of all natural
persons, the completeness of all of the Documents, the authenticity of all
originals of the Documents and the conformity to authentic originals of all
of
the Documents submitted to us as copies (including telecopies). Further, for
purposes of our opinion, we have not independently verified nor do we take
any
responsibility for nor are we addressing in any way any statements of fact,
any
statements concerning state or foreign law, any legal conclusions or any
statements of belief attributable to the Company or whether the Company is
in
compliance with applicable FDA or other legal requirements. Our opinion is
given
in the context of the foregoing.
This
letter is based as to matters of law solely on the Federal Food, Drug, and
Cosmetic Act, as amended (the “FDC Act”), and the regulations promulgated
thereunder.
II-1
Based
upon, subject to and limited by the assumptions, qualifications, exceptions,
and
limitations set forth in this opinion letter, we are of the opinion that insofar
the statements under the Regulatory Captions in the Preliminary Prospectus,
the
Final Prospectus and the Registration Statement summarize applicable provisions
of the FDC Act and the regulations promulgated thereunder, such statements
are
accurate summaries in all material respects of the provisions
summarized.
Nothing
herein shall be construed to cause us to be considered “experts” within the
meaning of Section 11 of the Securities Act of 1933, as amended.
We
express
no opinion in
this
letter as
to any other laws and regulations not specifically identified above as
being
covered hereby (and
in particular, we express no opinion as to any effect that such other laws
and
regulations may have on the opinions expressed herein). We express no opinion
in
this
letter
as to federal or state securities, antitrust, unfair competition, banking,
or
tax laws or regulations,
or laws or regulations of any political subdivision below the state
level.
We
assume
no obligation to advise you of any changes in the foregoing subsequent to the
delivery of this letter. This letter has been prepared solely for your use
in
connection with the closing under the Underwriting Agreement on the date hereof,
and it should not be quoted in whole or in part or otherwise be referred to,
and
should not be filed with or furnished to any governmental agency or other person
or entity, without the prior written consent of this firm. In no event may
this
letter or any other communication or document referring to the contents hereof
or any other advice we have given to the Company be submitted to or filed with
the SEC without our prior written consent.
II-2
ANNEX
III
Form
of Opinion of Intellectual Property Counsel
All
capitalized terms used but not defined in this Annex III shall have the meanings
ascribed to such terms in the Underwriting Agreement to which this Annex is
attached.
We
are familiar with the United States and worldwide Patent and Trademark Laws
(“Patent
and Trademark Laws”)
and related governmental regulations as applied generally to patents and
trademarks of the nature under development by the Company and we have reviewed
the sections of the Registration Statement,
the
Sale Preliminary Prospectus and Prospectus, including documents
incorporated by reference therein, related to medical technologies of the nature
under development by the Company (collectively, the “Intellectual
Property Disclosure”);
1. Insofar
as the statements in the Intellectual Property Disclosure constitute summaries
of legal matters, documents, legal proceedings, or regulatory proceedings
referred to therein, the Intellectual Property Disclosure accurately summarizes
the information called for with respect to such legal matters, documents, legal
proceedings, or regulatory proceedings and accurately summarizes the matters
referred to therein;
2.
To
our knowledge, there are no legal or governmental proceedings relating to the
Patent and Trademark Laws, or rules and regulations, pending or threatened,
of
the United States Patent and Trademark Office (“USPTO”)
or any other patent office or similar commission in each jurisdiction where
the
Company maintains or is applying for patent protection, to which the Company
is
a party, nor are we aware of any material violations of such laws, rules or
regulations by the Company; and
3. As
to the Intellectual Property Disclosure contained in each Registration
Statement, the
Sale
Preliminary Prospectus
and Prospectus, including documents incorporated by reference therein, we have
no reason to believe that such Intellectual Property Disclosure, as of the
effective date of the Registration Statement or as of the date hereof, contained
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 not
misleading or that such sections of the Prospectus or any amendment or
supplement thereto, as of its issue date or as of the date hereof, contained
any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
4. To
the
best knowledge of such counsel, the Company owns, possesses or has adequate
rights to use all intellectual property and rights thereto (collectively the
“Intellectual
Property”)
reasonably necessary to conduct the business of the Company in the manner
described in the Sale Preliminary Prospectus and the
Prospectus, except to the extent that the failure to own, possess or have
adequate rights to use such Intellectual Property would not, individually or
in
the aggregate, reasonably be expected to result in a Material Adverse
Effect.
III-1
5. Other
than as set forth or contemplated in the Prospectus, to such counsel’s
knowledge, the Company has not received any notice of infringement of or
conflict with, and such counsel has no knowledge of any infringement of or
conflict with, asserted rights of others with respect to the Intellectual
Property, except as would not, individually or in the aggregate, reasonably
be
expected to result in a Material Adverse Effect.
6. Other
than as set forth or contemplated in the Prospectus or as would not reasonably
be expected to result in a Material Adverse Effect, to such counsel’s knowledge,
the conduct of the current and future business of the Company in the manner
described in the Sale Preliminary Prospectus and the Prospectus does not and
will not infringe, interfere or conflict with any valid issued patent claim
or
other Intellectual Property right of any third party, or any claim of a patent
application filed by any third party, which patent application has been
published by the USPTO or similar foreign authority or is otherwise known to
the
Company and which claim would reasonably be expected to issue as a valid
claim.
7. Other
than as set forth or contemplated in the Prospectus, to such counsel’s knowledge
no third party, including any academic or governmental organization possesses
or
could obtain rights to the patents, patent applications or patent rights of
the
Company which, if exercised, would allow such third party to develop products
competitive with those of the Company and would, individually or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect.
8. To
the
knowledge of such counsel all information material to patentability has been
timely disclosed to the USPTO and any other patent office or similar commission
in each jurisdiction where the Company maintains or is applying for patent
protection, during the prosecutions of all patent applications as to the
Intellectual Property and no misrepresentation has been made to, or material
information withheld from, the USPTO and such other patent offices or similar
commissions during such prosecutions.
9. Such
counsel has no reason to believe that any of the Company’s trademark
applications filed with the USPTO will not eventuate in registered
trademarks.
In
addition to the foregoing legal opinions, the opinion letter of regulatory
counsel shall contain the following statement (it being understood that such
statement itself shall not constitute a legal opinion):
“As
counsel, we have participated in conferences with officers and representatives
of the Company and representatives of the Underwriters at which the Intellectual
Property Disclosure and related matters were discussed and no facts have come
to
our attention which would lead us to believe that the Intellectual Property
Disclosure, at the time the Registration Statement became effective (including
the information deemed to be part of the Registration Statement at the time
of
effectiveness pursuant to Rule 430A(b) or Rule 434, if applicable), contained
or
incorporated by reference any untrue statement of a material fact or omitted
to
state any material fact required to be stated therein or necessary to make
the
Intellectual Property Disclosure therein not misleading, or that the
Intellectual Property Disclosure contained in the Sale Preliminary Prospectus
and the Prospectus (including the documents incorporated by reference therein),
as of the Closing Date, contained or contains an untrue statement of a material
fact or omitted or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.”
III-2
When
used
in this legal opinion, the term “knowledge” shall mean the knowledge of
attorneys and paralegals of the Firm who have represented the Company, based
on
all information regarding the Intellectual Property Disclosure provided to
the
Firm by the Company, based on a Patent, Audit, and Diligence report containing
a
series of studies of the Company’s patent holdings and the relationship between
the Company’s patents and products, and a state of the art and freedom to
operate search through the USPTO and all patent offices or similar commissions
in each jurisdiction where the Company maintains or is applying for patent
protection , based on related patent search reports issued by the USPTO, based
on related patent search reports issued by any foreign and international patent
authority, and based on related trademark information received from the
USPTO.
III-3
ANNEX
IV
Form
of Lock-Up Agreement
_____________,
2007
|
Re:
|
EyeTel
Imaging, Inc. Lock-Up Agreement
|
Ladies
and Gentlemen:
This
letter agreement (this “Agreement”)
relates to the proposed public offering (the “Offering”)
by
EyeTel Imaging, Inc., a Delaware corporation (the “Company”),
of
its common stock, $0.001 par value per share (the “Stock”).
The
Offering is governed by the certain Underwriting Agreement, dated as of
_______________, 2007 (the “Underwriting
Agreement”),
by
and between the Company and Stanford Group Company (the “Representative”),
as
representative of the several underwriters named therein.
In
order
to induce the Representative to underwrite the Offering, the undersigned hereby
agrees that, without the prior written consent of the Representative during
the
period from the date hereof until twelve (12) months from the date of the final
prospectus for the Offering (the “Lock-Up
Period”),
the
undersigned: (a) will not, directly or indirectly, offer, sell, agree to offer
or sell, solicit offers to purchase, grant any call option or purchase any
put
option with respect to, pledge, borrow or otherwise dispose of any Relevant
Security (as defined below), and (b) will not establish or increase any “put
equivalent position” or liquidate or decrease any “call equivalent position”
with respect to any Relevant Security (in each case within the meaning of
Section 16 of the Securities Exchange Act of 1934, as amended, and the rules
and
regulations promulgated thereunder), or otherwise enter into any swap,
derivative or other transaction or arrangement that transfers to another, in
whole or in part, any economic consequence of ownership of a Relevant Security,
whether or not such transaction is to be settled by delivery of Relevant
Securities, other securities, cash or other consideration. As used herein
“Relevant
Security”
means
any common stock or other security of the Company or any Affiliate thereof
that
is convertible into, or exercisable or exchangeable for common stock or equity
securities or that holds the right to acquire any common stock or equity
securities of the Company or any Affiliate or any other such Relevant Security,
except for such rights as may have been fully satisfied or waived prior to
the
effectiveness of the Registration Statement.
The
undersigned hereby further agrees that, without the prior written consent of
the
Representative during the Lock-Up Period, the undersigned will not: (x) file
or
participate in the filing with the Securities and Exchange Commission of any
registration statement, or circulate or participate in the circulation of any
preliminary or final prospectus or other disclosure document with respect to
any
proposed offering or sale of a Relevant Security and (y) exercise any rights
the
undersigned may have to require registration with the Securities and Exchange
Commission of any proposed offering or sale of a Relevant Security.
IV-1
The
undersigned hereby authorizes the Company during the Lock-Up Period to cause
any
transfer agent for the Relevant Securities to decline to transfer, and to note
stop transfer restrictions on the stock register and other records relating
to,
Relevant Securities for which the undersigned is the record holder and, in
the
case of Relevant Securities for which the undersigned is the beneficial but
not
the record holder, agrees during the Lock-Up Period to cause the record holder
to cause the relevant transfer agent to decline to transfer, and to note stop
transfer restrictions on the stock register and other records relating to,
such
Relevant Securities.
The
undersigned hereby represents and warrants that the undersigned has full power
and authority to enter into this Agreement and that this Agreement constitutes
the legal, valid and binding obligation of the undersigned, enforceable in
accordance with its terms. Upon request, the undersigned will execute any
additional documents necessary in connection with enforcement hereof. Any
obligations of the undersigned shall be binding upon the successors and assigns
of the undersigned from the date first above written.
The
undersigned hereby acknowledges that Representative’s determination, if any, to
release all or any portion of the Relevant Securities from the Lock-Up Period
will depend on several factors including, but not limited to, the market price
and demand for the Shares and the general condition of the securities markets.
Any decision by the Representative decision to shorten the Lock-Up Period is
arbitrary and may not be based on any specific parameters.
It
is
understood that, if the Company notifies the Representative that it does not
intend to proceed with the Offering, if the Underwriting Agreement does not
become effective, or if the Underwriting Agreement (other than the provisions
thereof which survive termination) shall terminate or be terminated prior to
payment for and delivery of the Shares, the undersigned will be released from
each of its obligations under this Agreement. In addition, this Agreement shall
terminate and be of no further force or effect if the Company has not prepared
and filed with the Securities and Exchange Commission a registration statement
with respect to the Offering which becomes effective within 120 days of the
date
of this Agreement.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without regard to the conflicts of laws principles thereof.
Delivery of a signed copy of this letter by facsimile transmission shall be
effective as delivery of the original hereof.
Very
truly yours,
By:
_____________________________
Print
Name: _______________________
IV-2