<PAGE> 1
Exhibit 1.1
3,700,000 Shares of Common Stock
MILLENNIUM CELL, INC.
UNDERWRITING AGREEMENT
July _____, 2000
Morgan Keegan & Company, Inc.
50 North Front Street
Memphis, Tennessee 38103
Dear Sirs:
Millennium Cell, Inc., a corporation organized and existing under the
laws of Delaware (the "Company"), proposes, subject to the terms and conditions
stated herein, to issue and sell to the several underwriters named in Schedule I
hereto (the "Underwriters"), acting severally and not jointly, an aggregate of
3,700,000 shares (the "Primary Shares") of the Company's common stock, par value
$.001 per share (the "Common Stock"). The Company also proposes to issue and
sell to the several Underwriters, for the sole purpose of covering
over-allotments in connection with the sale of the Primary Shares, and at the
option of the Underwriters, up to an additional 555,000 shares (the "Optional
Shares") of Common Stock. The Primary Shares and the Optional Shares are
referred to herein collectively as the "Shares." The Shares are more fully
described in the Registration Statement referred to below.
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, and may have filed an amendment or
amendments thereto, on Form S-1 (Registration No. _________), for the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of the Shares (including the Optional Shares) of Common Stock, which
registration statement, as so amended, has been declared effective by the
Commission on the date hereof and copies of which have heretofore been delivered
to the Underwriters. The registration statement, as amended at the time it
became effective, including the exhibits and information (if any) deemed to be a
part of the registration statement at the time of effectiveness pursuant to
paragraph (b) of Rule 430A or Rule 434 of the rules and regulations of the
Commission under the Securities Act (the "Securities Act Regulations"), and any
post-effective amendments thereto under Rule 462(d) through the Closing Date (as
defined below) is hereinafter called the "Registration Statement." 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
Regulations registering Optional Shares of Common Stock (a "Rule 462(b)
Registration Statement"), then, and 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,
if any, which became effective upon
<PAGE> 2
filing, no other document with respect to the Registration Statement has
heretofore been filed with the Commission (other than prospectuses filed
pursuant to Rule 424(b) of the Securities Act Regulations, each in the form
heretofore delivered to the Underwriters). No stop order suspending the
effectiveness of the Registration Statement (including any Rule 462(b)
Registration Statement) has been issued and no proceeding for that purpose has
been initiated or, to the Company's knowledge, threatened by the Commission. The
prospectus relating to the Shares, in the form in which it is to be filed with
the Commission pursuant to Rule 424(b) of the Securities Act Regulations, is
hereinafter referred to as the "Prospectus," except that, subject to Sections
4(a) and 4(b) below, if any revised prospectus or prospectus supplement shall be
provided to the Underwriters by the Company for use in connection with the
offering and sale of the Shares (the "Offering") which differs from the
Prospectus (whether or not such revised prospectus or prospectus supplement is
required to be filed by the Company pursuant to Rule 424(b) of the Securities
Act Regulations), the term "Prospectus" shall 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. All references to the
"Registration Statement" and the "Prospectus" shall be deemed to include all
documents incorporated therein by reference pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). Any preliminary prospectus or
prospectus subject to completion included in the Registration Statement or filed
with the Commission as described in Rule 430A or Rule 424 of the Securities Act
is hereafter called a "Preliminary Prospectus." All references in this Agreement
to the Registration Statement, the Rule 462(b) Registration Statement, a
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 ("EDGAR").
(b) The Registration Statement and the Prospectus, and any amendments
thereof or supplements thereto, at the time the Registration Statement became
effective, at the time any post-effective amendment to the Registration
Statement is filed with the Commission, at the time the Prospectus is first
filed with the Commission, at the time any supplement or amendment to the
Prospectus is filed with the Commission, at the time any documents incorporated
by reference in the Registration Statement or the Prospectus are amended or
supplemented to comply with the Exchange Act, and as of the Closing Date, and
Additional Closing Date, if any (as hereinafter respectively defined), and the
Preliminary Prospectus, and any amendments thereof or supplements thereto, as of
the date thereof, complied and comply in all material respects with the
requirements of the Securities Act and the Securities Act Regulations, and did
not and as of the Closing Date, and Additional Closing Date, if any, will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading. The Prospectus, as of the date hereof (unless the term
"Prospectus" refers to a prospectus which has been provided to the Underwriters
by the Company for use in connection with the offering of the Shares which
differs from the Prospectus filed with the Commission pursuant to Rule 424(b) of
the Securities Act Regulations, in which case at the time it is first provided
to the Underwriters for such use) and on the Closing Date, and Additional
Closing Date, if any, does not and will not include any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
2
<PAGE> 3
misleading; provided, however, that the representations and warranties in this
Section (1)(b) shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in writing
by any Underwriter expressly for use in the Registration Statement or the
Prospectus. Each Preliminary Prospectus and Prospectus filed as part of the
Registration Statement, as part of any amendment thereto or pursuant to Rule 424
under the Securities Act Regulations, if filed by electronic transmission
pursuant to Regulation S-T under the Securities Act, was identical to the copy
thereof delivered to the Underwriters for use in connection with the offer and
sales of the Shares (except as may be permitted by Regulation S-T under the
Securities Act). There are no contracts or other documents required to be
described in the Prospectus or to be filed as exhibits to the Registration
Statement under the Securities Act that have not been described or filed therein
as required, and there are no business relationships or related-party
transactions directly or indirectly involving the Company or any other person
required to be described in the Prospectus that have not been described therein
as required.
(c) Ernst & Young LLP, who have certified certain financial statements
of the Company and have delivered its reports with respect to the Company's
audited financial statements included in the Registration Statement, the
Prospectus and any Preliminary Prospectus, are independent public accountants as
required by the Securities Act and the Securities Act Regulations.
(d) The documents incorporated by reference in the Registration
Statement and the Prospectus, at the time filed with the Commission, conformed
in all material respects to the requirements of the Exchange Act, as amended,
and the rules and regulations of the Commission thereunder, or the Securities
Act and the Securities Act Regulations, as applicable.
(e) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has been no material
adverse change or any development involving a prospective material adverse
change in the business, prospects, properties, operations, condition (financial
or otherwise) affairs or management of the Company, whether or not arising from
transactions in the ordinary course of business, and since the date of the
latest balance sheet presented in the Registration Statement and the Prospectus,
the Company has not incurred or undertaken any liabilities or obligations,
direct or contingent, which are material to the Company, except for liabilities
or obligations which are reflected in the Registration Statement and the
Prospectus.
(f) The Company (i) has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of Delaware, (ii) has
all requisite corporate power and authority, and all necessary consents,
approvals, authorizations, orders, registrations, qualifications, licenses and
permits of and from all public, regulatory or governmental agencies and bodies,
to carry on its business as it is currently being conducted and as described in
the Registration Statement and the Prospectus and to own, lease and operate its
properties, (iii) other than the subsidiaries listed on Schedule 1 (the
"Subsidiaries"), has no subsidiaries and (iv) is duly qualified and in good
standing as a foreign corporation authorized to do business in each jurisdiction
in which the nature of its
3
<PAGE> 4
business or its ownership or leasing of property requires such qualification
except, with respect to clauses (i) (as it relates to good standing) and (iv),
where the failure to be in good standing or so qualified does not and could not
reasonably be expected to (x) individually or in the aggregate, result in a
material adverse effect on the business, prospects, properties, operations,
condition (financial or otherwise), affairs or management of the Company, (y)
interfere with or adversely affect the issuance or marketability of the Shares
pursuant hereto or (z) in any manner draw into question the validity of this
Agreement or the transactions described in the Prospectus under the caption "Use
of Proceeds" (any of the events set forth in clauses (x), (y) or (z), being
referred to as a "Material Adverse Effect").
(g) Each of the Subsidiaries (i) has been duly organized and is validly
existing as a corporation, or limited liability company, as the case may be, in
good standing under the laws of the province or state of its organization, (ii)
has all requisite corporate or similar power and authority, and all necessary
consents, approvals, authorizations, orders, registrations, qualifications,
licenses and permits of and from all public, regulatory or governmental agencies
and bodies, to carry on its business as it is currently being conducted and as
described in the Registration Statement and the Prospectus and to own, lease and
operate its properties, (iii) has no subsidiaries and (iv) is duly qualified and
in good standing as a foreign corporation, or limited liability company, as the
case may be, authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification except, with respect to clauses (i) (as it relates to good
standing) and (iv), where the failure to be in good standing or so qualified
does not and could not reasonably be expected to result in a "Material Adverse
Effect".
(h) This Agreement and the transactions contemplated hereby have been
duly and validly authorized by the Company. This Agreement has been duly and
validly executed and delivered by the Company, and is the legal, valid, binding
agreement of the Company.
(i) The execution, delivery, and performance of this Agreement, the
issuance, offering and sale of the Shares, and the consummation of the
transactions contemplated hereby and in the Prospectus do not and will not (i)
violate, conflict with or constitute 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) or require consent under, or result in the
creation or imposition of any lien, charge or encumbrance upon any properties or
assets of the Company, or result in an acceleration of any indebtedness of the
Company pursuant to (A) the Certificate of Incorporation or By-Laws of the
Company, in each case as amended through the date hereof (B) any bond,
debenture, note, indenture, mortgage, deed of trust, contract or other agreement
or instrument to which the Company or any subsidiary is a party or by which the
Company or any of its subsidiaries or their respective properties or assets are
or may be bound, (C) any statute, rule or regulation applicable to the Company
or any of its subsidiaries or any of their respective properties or assets (D)
any judgment, order or decree of any court or governmental agency or authority
having jurisdiction over the Company or any of its subsidiaries or any of their
respective properties or assets. No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with (i) any court
or any governmental agency or authority having jurisdiction over the Company or
any of its
4
<PAGE> 5
subsidiaries or any of their respective properties or assets or (ii) any other
person is required for (A) the execution, delivery and performance by the
Company of this Agreement, (B) the issuance, sale and delivery of the Shares to
be issued, sold and delivered by the Company hereunder and the consummation of
the transactions contemplated hereby, except such as have been obtained under
the Securities Act and such consents, approvals, authorizations, orders,
registrations, filings, qualifications, licenses and permits as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters.
(j) All of the outstanding shares of Common Stock, are duly authorized
and validly issued, and are fully paid and nonassessable and were not issued and
are not now in violation of or subject to any preemptive or similar rights. The
Shares being sold by the Company under this Agreement are duly authorized, and,
when issued, delivered and paid for in accordance with this Agreement, will be
validly issued, and fully paid and nonassessable, and will not have been issued
in violation of or be subject to any preemptive or similar rights. As of March
31, 2000, after giving effect to the issuance and sale of the Shares pursuant
hereto and the application of the net proceeds from the sale thereof, the
Company had the pro forma capitalization as set forth in the Prospectus under
the caption "Capitalization." The capital stock of the Company conforms to the
description thereof contained in the Prospectus, or if the Prospectus is not in
existence, the most recent Preliminary Prospectus.
(k) Except as disclosed in the Prospectus, there are not currently, and
will not be as a result of the Offering, any outstanding subscriptions, rights,
warrants, calls, commitments of sale or options to acquire or instruments
convertible into or exchangeable for, any capital stock or other equity interest
of the Company or any of its subsidiaries (other than options issued pursuant to
the Company's stock option plans).
(l) There is (i) no action, suit or proceeding before or by any court,
arbitrator or governmental agency, body or official, domestic or foreign, now
pending or, to the best knowledge of the Company, threatened or contemplated to
which the Company is a party or to which the business or property of the Company
is subject, (ii) no statute, rule, regulation or order that has been enacted,
adopted or issued by any governmental agency to the company's knowledge and
(iii) no injunction, restraining order or order of any nature by a federal or
state court or foreign court of competent jurisdiction to which the Company or
any of its subsidiaries is or may be subject or to which the business, assets,
or property of the Company or any of its subsidiaries are or may be subject,
that, in the case of clauses (i), (ii) and (iii) above, is required to be
disclosed in the Registration Statement and the Prospectus and which could,
individually or in the aggregate, result in a Material Adverse Effect.
(m) The Company has not directly or indirectly (a) taken (other than
through the actions, if any, of the Underwriters) any action designed to, or
that might reasonably be expected to, cause or result in or which constitutes or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares or (b) since the filing of the Preliminary Prospectus
(i) sold, bid for, purchased
5
<PAGE> 6
or paid any person any compensation for soliciting purchases of, shares of
Common Stock or (ii) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(n) The financial statements, together with the related notes, included
in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) present fairly in all material respects the financial
position, results of operations, cash flows, and changes in stockholders' equity
of the Company or its predecessors, as applicable, as of and at the dates
indicated and for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved, and comply with Regulation
S-X of the Securities Act Regulations. The financial data set forth in the
Prospectus under the captions "Selected Financial Data" and "Capitalization"
fairly present the information set forth therein on a basis consistent with that
of the audited financial statements contained in the Prospectus.
(o) There are no holders of securities of the Company who, by reason of
the execution by the Company of this Agreement or the consummation by the
Company of the transactions contemplated hereby, have the right to request or
demand that the Company register under the Securities Act or analogous foreign
laws and regulations securities held by them, other than such that have been
duly exercised or waived.
(p) The Company is not, and upon consummation of the transactions
contemplated hereby will not be, (i) an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), or be subject to
registration under the Investment Company Act, or (ii) a "holding company" or a
"subsidiary company" or an "affiliate" of a holding company within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
(q) The Company will use all reasonable efforts to list for quotation
the Shares in the National Association of Securities Dealers Automated
Quotations National Market ("NASDAQ")].
(r) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby, including, without limitation,
the corporate power and authority to issue, sell and deliver the Shares as
provided herein and the corporate power to effect the use of proceeds from the
Offering as described in the Prospectus.
(s) The Company is not (i) in violation of its Certificate of
Incorporation or By-Laws, (ii) in breach or default (nor does any condition
exist that, with notice, the passage of time or both, would constitute a breach
or default) in the performance of any obligation, agreement or condition
contained in any bond, debenture, note, indenture, mortgage, deed of trust or
other material agreement or instrument to which it is a party or by which it is
bound or to which any of its properties is subject, or (iii) in violation, in
any material respect, of any local, state or federal law,
6
<PAGE> 7
statute, ordinance, rule, regulation, requirement, judgment or court decree
applicable to the Company or any of its subsidiaries or any of their respective
assets or properties (whether owned or leased).
(t) No action has been taken and no statute, rule, regulation or order
has been enacted, adopted or issued by any governmental agency that prevents the
issuance of the Shares or prevents or suspends the use of the Prospectus; no
injunction, restraining order or order of any kind by a federal or state court
of competent jurisdiction has been issued that prevents the issuance of the
Shares, prevents or suspends the sale of the Shares in any jurisdiction or that
could adversely affect the consummation of the transactions contemplated by this
Agreement or the Prospectus; and every request of any authority or agency of any
jurisdiction for additional information has been complied with in all material
respects.
(u) There is (i) no significant unfair labor practice complaint pending
against the Company nor, to the best knowledge of the Company, threatened
against it, before the National Labor Relations Board, any state or local labor
relations board or any foreign labor relations board, and no significant
grievance or significant arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the Company nor, to the
best knowledge of the Company, threatened against it, (ii) no strike, labor
dispute, slowdown or stoppage pending against the Company nor, to the best
knowledge of the Company, threatened against it and (iii) to the best knowledge
of the Company, no union representation question existing with respect to the
employees of the Company. To the best knowledge of the Company, no collective
bargaining organizing activities are taking place with respect to the Company.
The Company has not violated, in any material respect, (A) any federal, state or
local law or foreign law relating to discrimination in hiring, promotion or pay
of employees, (B) any applicable wage or hour laws or (C) any provision of the
Employee Retirement Income Security Act of 1974, as amended, and the regulations
and published interpretations thereunder (collectively, "ERISA").
(v) The Company is not in violation of any federal or state law or
regulation relating to occupational safety and health or to the storage,
handling or transportation of hazardous or toxic materials ("Environmental
Laws") and, to the best knowledge of the Company, the Company has received all
permits, licenses and other approvals required of it under applicable federal
and state occupational safety and health and environmental laws and regulations
to conduct its business, and the Company is in compliance with all terms and
conditions of any such permit, license or approval, except any such violation of
law or regulation, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals which would not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect. There has been no
storage, disposal, generation, transportation, handling or treatment of
hazardous substances or solid wastes by the Company (or to the knowledge of the
Company any of its predecessors in interest) at, upon or from any of the
property now or previously owned or leased by the Company in violation of any
applicable law, ordinance, rule, regulation, order, judgment, decree or permit
which would require remedial action by the Company under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit except for those
which have already been remedied, have been provided for through escrow of a
portion of the acquisition
7
<PAGE> 8
consideration, have been assumed by a third party, or which would not result in,
or which would not be reasonably likely to result, individually or in the
aggregate, in a Material Adverse Effect. There has been no spill, discharge,
leak, emission, injection, escape, dumping or release of any kind onto such
property or into the environment surrounding such property of any solid wastes
or hazardous substances due to or caused by the Company, except for any such
spill, discharge, leak, emission, injection, escape, dumping or release which
has already been remedied, has been assumed by a third party, or which would not
result, or which would not be reasonably expected to result, individually or in
the aggregate, in a Material Adverse Effect. The terms "hazardous substances"
and "solid wastes" shall have the meanings set forth in any currently applicable
local, state, and federal laws or regulations with respect to environmental
protection.
(w) The Company has (i) good and marketable title in fee simple to all
items of real property and defensible title to all personal property owned by
it, free and clear of all security interests, liens, charges, encumbrances,
equities, restrictions, claims and other defects, except such as are described
in the Prospectus or as would not have a Material Adverse Effect, and (ii)
peaceful and undisturbed possession of its properties under all material leases
to which it is a party as lessee. The Company has good and defensible title to
its Hydrogen on Demand patented system free and clear of all security interests,
liens, charges, encumbrances, equities, restrictions, claims and other defects,
except such as are described in the Prospectus or as would not have a Material
Adverse Effect.
(x) The Company has (i) all licenses, certificates, permits,
authorizations, approvals, franchises and other rights from, and has made all
declarations and filings with, all federal, state and local authorities, all
self-regulatory authorities and all courts and other tribunals (each an
"Authorization") necessary to engage in the business conducted by it in the
manner described in the Prospectus, except as described in the Prospectus or
where failure to hold such Authorizations would not, individually or in the
aggregate, have a Material Adverse Effect and (ii) no reason to believe that any
governmental body or agency is considering limiting, suspending or revoking any
such Authorization. Except where the failure to be in full force and effect
would not have a Material Adverse Effect, all such Authorizations are valid and
in full force and effect, and the Company is in compliance in all material
respects with the terms and conditions of all such Authorizations and with the
rules and regulations of the regulatory authorities having jurisdiction with
respect thereto.
(y) Neither the Company nor, to the best knowledge of the Company, any
of its officers, directors, partners, employees, agents or affiliates or any
other person acting on behalf of the Company, has, directly or indirectly, given
or agreed to give any money, gift or similar benefit (other than legal price
concessions to customers in the ordinary course of business) to any customer,
supplier, employee or agent of a customer or supplier, official or employee of
any governmental agency (domestic or foreign), instrumentality of any government
(domestic or foreign) or any political party or candidate for office (domestic
or foreign) or other person who was, is or may be in a position to help or
hinder the business of the Company (or assist the Company in connection with any
actual or proposed transaction), which (i) might subject the Company, or any
other individual or entity, to any damage or penalty in any civil, criminal or
governmental litigation or
8
<PAGE> 9
proceeding (domestic or foreign), (ii) if not given in the past, might have had
a Material Adverse Effect or (iii) if not continued in the future, might have a
Material Adverse Effect.
(z) All material tax returns required to be filed by the Company in all
jurisdictions have been so filed. All taxes, including withholding taxes,
penalties and interest, assessments, fees and other charges due or claimed to be
due from such entities or that are due and payable have been paid, other than
those being contested in good faith through appropriate proceedings diligently
pursued and for which adequate reserves have been provided or those currently
payable without penalty or interest. To the knowledge of the Company, there are
no material proposed additional tax assessments against the Company or the
assets or property of the Company. The Company has made adequate (in the opinion
of the Company) charges, accruals and reserves in the applicable financial
statements included in the Prospectus in respect of all federal, state and
foreign income and franchise taxes for all periods presented therein as to which
the tax liability of the Company has not been finally determined.
(aa) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that: (i) transactions are executed
in accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences thereto.
(bb) The Company maintains insurance covering its properties,
operations, personnel and businesses with institutions it believes to be
financially responsible. Such insurance insures against such losses and risks as
are adequate in accordance with customary industry practice to protect the
Company and its business. The Company has not received notice from any insurer
or agent of such insurer that substantial capital improvements or other
expenditures will have to be made in order to continue such insurance. All such
insurance is outstanding and duly in force on the date hereof, subject only to
changes made in the ordinary course of business, consistent with past practice,
which do not, either individually or in the aggregate, materially alter the
coverage thereunder or the risks covered thereby. The Company has no reason to
believe that it will not be able (a) to renew its existing insurance coverage as
and when such policies expire or (b) to obtain comparable coverage from similar
institutions as may be necessary or appropriate to conduct its business as now
conducted or as presently contemplated and at a cost that would not result in a
Material Adverse Effect.
(cc) The Company and any "employee benefit plan" (as defined under
ERISA) established or maintained by the Company or its "ERISA Affiliates" (as
defined below) are in compliance in all material respects with ERISA. "ERISA
Affiliate" means, with respect to the Company, any member of any group of
organizations described in Sections 414(b), (c), (m) or (o) of the Internal
Revenue Code of 1986, as amended, and the regulations and published
interpretations thereunder (the "Code")
9
<PAGE> 10
of which the Company is a member. No "reportable event" (as defined under ERISA)
has occurred or is reasonably expected to occur with respect to any "employee
benefit plan" established or maintained by the Company or any of its ERISA
Affiliates. No "employee benefit plan" established or maintained by the Company
or any of its ERISA Affiliates, if such "employee benefit plan" were terminated,
would have any "amount of unfunded benefit liabilities" (as defined under
ERISA). Neither the Company nor any of its ERISA Affiliates has incurred or
reasonably expects to incur any liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "employee benefit plan" or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each "employee benefit plan"
established or maintained by the Company or any of its ERISA Affiliates that is
intended to be qualified under Section 401(a) of the Code is so qualified and
nothing has occurred, whether by action or failure to act, which would cause the
loss of such qualification.
(dd) Subsequent to the respective dates as of which information is
given in the Prospectus and up to the Closing Date, except as set forth in the
Prospectus, (i) the Company has not incurred any liabilities or obligations,
direct or contingent, that are or will be material, either individually or in
the aggregate, to the Company and its subsidiaries taken as a whole, nor entered
into any transaction not in the ordinary course of business, (ii) there has not
been, either individually or in the aggregate, any change or development that
could reasonably be expected to result in a Material Adverse Effect; (iii) the
Company has not purchased any of its outstanding capital stock, nor declared,
paid or otherwise made any dividend or distribution of any kind on its capital
stock; and (iv) there has been no material change in the capital stock,
short-term debt or long-term debt of the Company, except in each case as
described in the Prospectus, or if the Prospectus is not in existence the most
recent Preliminary Prospectus.
(ee) Except pursuant to this Agreement, there are no contracts,
agreements or understandings between the Company and any other person that would
give rise to a valid claim against the Company or any of the Underwriters for a
brokerage commission, finder's fee or like payment in connection with the
issuance, purchase and sale of the Shares.
(ff) The statements (including the assumptions described therein)
included in the Prospectus (i) are within the coverage of Rule 175(b) under the
Securities Act to the extent such data constitute forward looking statements as
defined in Rule 175(c) and (ii) were made by the Company with a reasonable basis
and reflect the Company's good faith estimate of the matters described therein.
(gg) The Company does not have any debt securities or preferred stock
which is rated by any "nationally recognized statistical rating organization" as
defined for purposes of Rule 436(g) under the Securities Act.
(hh) The Company has the power to submit, and pursuant to this
Agreement has legally, validly, effectively and irrevocably submitted, to the
jurisdiction of any federal or state court in the State of New York, County of
New York, and has the power to designate, appoint and empower and pursuant to
this Agreement has legally, validly, effectively and irrevocably designated,
appointed and
10
<PAGE> 11
empowered an agent for service of process in any suit or proceeding based on or
arising under this Agreement in any federal or state court in the State of New
York, County of New York, as provided in Section 13 hereof.
(ii) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters pursuant to this
Agreement shall be deemed to be a representation and warranty by the Company to
the Underwriters as to the matters covered thereby.
The Company acknowledges that each of the Underwriters and, for
purposes of the opinions to be delivered to the Underwriters pursuant to
Sections 6(b) and 6(c) hereof, counsel to the Company and counsel to the
Underwriters, will rely upon the accuracy and truth of the foregoing
representations and hereby consents to such reliance.
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, (i) the Company agrees to issue and sell 3,700,000 of the Primary Shares
to the Underwriters and the Underwriters, severally and not jointly, agree to
purchase from the Company, at a purchase price per share of $ ____, the number
of Primary Shares set forth opposite the respective names of the Underwriters in
Schedule I hereto plus any additional number of Shares which such Underwriter
may become obligated to purchase pursuant to the provisions of Section 9 hereof.
(b) Delivery of the Primary Shares to the Underwriters shall be made,
against payment of the purchase price therefor, at the offices of Vinson &
Elkins, L.L.P., 1325 Avenue of the Americas, New York, New York 10019, or such
other location as may be mutually acceptable. Such delivery and payment shall be
made at 10:00 am, New York City time, on _______,2000, or at such other time as
shall be agreed upon by the Underwriters and the Company. The time and date of
such delivery and payment are herein called the "Closing Date." On the Closing
Date, one or more Primary Shares in definitive global form, registered in the
name of Cede & Co., as nominee of The Depositary Trust Company, New York, New
York ("DTC"), having an aggregate amount corresponding to the aggregate
principal amount of the Shares sold to the Underwriters (the "Global Shares")
shall be delivered by the Company to Morgan Keegan & Company ("Morgan Keegan"),
as agent for the Underwriters, against payment by the Underwriters of the
purchase price therefor, by wire transfer, in same-day funds to an account
designated by the Company, provided that the Company shall give at least two
business days' prior written notice to Morgan Keegan of the information required
to effect such wire transfer. The Global Shares shall be made available to
Morgan Keegan for inspection not later than 9:30 a.m. on the business day
immediately preceding the Closing Date.
(c) In addition, the Company hereby grants to the Underwriters the
option to purchase up to 555,000 Optional Shares at the same purchase price per
share to be paid by the Underwriters to the Company for the Primary Shares as
set forth in Section 2(a) hereof, for the sole purpose of
11
<PAGE> 12
covering over-allotments, if any, in the sale of Primary Shares by the
Underwriters. This option may be exercised at any time, in whole or in part, on
or before the thirtieth day following the date of the Prospectus, by written
notice to the Company from Morgan Keegan on behalf of the Underwriters. Such
notice shall set forth the aggregate number of Optional Shares as to which the
option is being exercised and the date and time, as reasonably determined by
Morgan Keegan on behalf of the Underwriters, when the Optional Shares are to be
delivered (such date and time being herein sometimes referred to as the
"Additional Closing Date"); provided, however, that the Additional Closing Date
shall not be earlier than the Closing Date or, if thereafter, earlier than the
third full business day after the date on which the option shall have been
exercised nor later than the eighth 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 10 hereof). Certificates for the
Optional Shares shall be registered in such name or names and in such authorized
denominations as you may request in writing at least two full business days
prior to the Additional Closing Date. The Company will permit you to examine and
package such certificates for delivery at least one full business day prior to
the Additional Closing Date.
The number of Optional Shares to be sold to each Underwriter shall be
the number which bears the same ratio to the aggregate number of Optional Shares
being purchased as the number of Primary Shares set forth opposite the name of
such Underwriter in Schedule I hereto (or such number increased as set forth in
Section 9 hereof) bears to 3,700,000 subject, however, to such adjustments to
eliminate any fractional shares as Morgan Keegan on behalf of the Underwriters
in its sole discretion shall make.
Delivery of the Optional Shares to the Underwriters shall be made,
against payment of the purchase price therefor, at the offices of Vinson &
Elkins, L.L.P., 1325 Avenue of the Americas, New York, New York 10019, or such
other location as may be mutually acceptable. Such delivery and payment shall be
made at 10:00 am, New York City time, on _______,2000, or at such other time as
shall be agreed upon by the Underwriters and the Company. The time and date of
such delivery and payment are herein called the "Additional Closing Date." On
the Additional Closing Date, one or more Optional Shares in definitive global
form, registered in the name of Cede & Co., as nominee of DTC, having an
aggregate amount corresponding to the aggregate principal amount of the Shares
sold to the Underwriters (the "Additional Global Shares") shall be delivered by
the Company to Morgan Keegan & Company, Inc., as agent for the Underwriters,
against payment by the Underwriters of the purchase price therefor, by wire
transfer, in same-day funds to an account designated by the Company, provided
that the Company shall give at least two business days' prior written notice to
Morgan Keegan & Company, Inc. of the information required to effect such wire
transfer. The Additional Global Shares shall be made available to Morgan Keegan
& Company, Inc. for inspection not later than 9:30 a.m. on the business day
immediately preceding the Additional Closing Date.
3. Offering. Upon your authorization of the release of the Primary
Shares, the Underwriters propose to offer the Primary Shares for sale to the
public upon the terms set forth in the Prospectus.
12
<PAGE> 13
4. Covenants of the Company. The Company covenants and agrees with the
Underwriters that:
(a) If the Registration Statement has not yet been declared effective
on the date of this Agreement, the Company will use its best efforts to cause
the Registration Statement and any amendments thereto to become effective as
promptly as possible, and if Rule 430A is used or the filing of the Prospectus
is otherwise required under Rule 424(b) or Rule 434, the Company will file the
Prospectus (properly completed if Rule 430A has been used) pursuant to Rule
424(b) or Rule 434 within the prescribed time period and will provide evidence
satisfactory to you of such timely filing. If the Company elects to rely on Rule
434, the Company will prepare and file a term sheet that complies with the
requirements of Rule 434.
The Company will notify you immediately (and, if requested by you, 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 or the Prospectus
or for any additional information, (iii) of the mailing or the delivery to the
Commission for filing of any amendment of or supplement to the Registration
Statement or the Prospectus, (iv) 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, (v) of the receipt of any comments from the Commission
and (vi) 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 soon as possible. The Company will not
file any amendment to the Registration Statement or any amendment of or
supplement to the Prospectus (including the prospectus required to be filed
pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at
the time of the effectiveness of the Registration Statement before or after the
effective date of the Registration Statement to which you shall reasonably
object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is required
to be delivered under the Securities Act 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 light of the circumstances under
which they were made, not misleading, or if it shall be necessary at any time to
amend or supplement the Prospectus or Registration Statement to comply with the
Securities Act or the Securities Act Regulations, the Company will notify you
promptly and prepare and file with the Commission an appropriate amendment or
supplement (in form and substance satisfactory to you) which will correct such
statement or omission and will use its best efforts to have any amendment to the
Registration Statement declared effective as soon as possible.
13
<PAGE> 14
(c) The Company will promptly deliver to you two signed copies of the
Registration Statement, including exhibits and all amendments thereto, and the
Company will promptly deliver to each of the Underwriters such number of copies
of any preliminary prospectus, the Prospectus, the Registration Statement, and
all amendments of and supplements to such documents, if any, as you may
reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you,
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 as you may 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.
(e) The Company will make generally available (within the meaning of
Section 11(a) of the Securities Act) to its security holders and to you as soon
as practicable, but not later than 45 days after the end of its fiscal quarter
in which the first anniversary date of the effective date of the Registration
Statement occurs, an earnings statement (in form complying with the provisions
of Rule 158 of the Securities Act Regulations) covering a period of at least
twelve consecutive months beginning after the effective date of the Registration
Statement.
(f) Other than the Company's sale of Shares hereunder and the Company's
issuance of Common Stock pursuant to any existing employee benefit plans or upon
the exercise, conversion or exchange of any currently outstanding stock options
or warrants, during the period of 180 days from the date hereof, the Company
will not, and will not permit any of its affiliates, directly or indirectly, to
issue, sell, offer or agree to sell, grant any option for the sale of, pledge,
make any short sale or maintain any short position, establish or maintain a "put
equivalent position" (within the meaning of Rule 16a-1(h) under the Exchange
Act), enter into any swap, derivative transaction or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of the Common Stock (whether any such transaction is to be settled by
delivery of Common Stock, other securities, cash or other consideration) or
otherwise dispose of, any Common Stock (or any securities convertible into,
exercisable for or exchangeable for Common Stock) or any interest therein or
announce any intention to do any of the foregoing without the prior written
consent of Morgan Keegan. The Company will obtain the undertaking of each of its
officers and directors and such of its other stockholders as have been
heretofore designated by you and listed on Schedule II attached hereto not to
engage in any of the aforementioned transactions or to announce their intention
to do any of the foregoing on their own behalf.
(g) During a period of three years from the effective date of the
Registration Statement, the Company will furnish to you copies of (i) all
reports to its stockholders; and (ii) all reports, financial statements and
proxy or information statements filed by the Company with the Commission or any
national securities exchange.
14
<PAGE> 15
(h) The Company will apply its net proceeds from the sale of the Shares
as set forth under the caption "Use of Proceeds" in the Prospectus.
(i) The Company will use its best efforts to cause the Shares to be
listed on the NASDAQ National Market.
(j) The Company will report the use of its net proceeds from the
Offering to the extent required pursuant to Rule 463 of the Securities Act
Regulations.
5. Payment of Expenses. Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of the
obligations of the Company hereunder, including those in connection with (i)
preparing, printing, duplicating, filing and distributing the Registration
Statement, as originally filed and all amendments thereof (including all
exhibits thereto), any Preliminary Prospectus, the Prospectus and any amendments
or supplements thereto (including, without limitation, fees and expenses of the
Company's accountants and counsel), the underwriting documents (including this
Agreement) and all other documents related to the public offering of the Shares
(including those supplied to the Underwriters in quantities as herein above
stated), (ii) the issuance, transfer and delivery of the Shares to the
underwriters, including any transfer or other taxes payable thereon, (iii) the
qualification of the Shares under state or foreign securities or blue sky laws,
including the costs of printing and mailing a preliminary and final "Blue Sky
Survey" and the fees of counsel for the Underwriters and such counsel's
disbursements in relation thereto, (iv) listing the Shares on NASDAQ National
Market, (v) filing fees of the Commission and the National Association of
Securities Dealers, Inc. (the "NASD"), (vi) the cost of printing certificates
representing the Shares, (vii) any counsel fees incurred on behalf of or
disbursements by Morgan Keegan in its capacity as "qualified independent
underwriter"and (viii) the cost and charges of any transfer agent or registrar
for the Common Stock.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Primary Shares and the Optional Shares,
as provided herein, shall be subject to the accuracy of the representations and
warranties of the Company herein contained, as of the date hereof and as of the
Closing Date (for purposes of this Section 6 "Closing Date" shall refer to the
Closing Date for the Primary Shares and any Additional Closing Date, if
different, for the Optional Shares), to the absence from any certificates,
opinions, written statements or letters furnished to you or to Vinson & Elkins
L.L.P. ("Underwriters' Counsel") pursuant to this Section 6 of any misstatement
or omission, to the performance by the Company of its obligations hereunder, and
to the following additional conditions:
(a) The Registration Statement shall have become effective 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 you; if the Company
shall have elected to rely upon Rule 430A or Rule 434 of the Securities Act
Regulations, the Prospectus shall have been filed with the Commission in a
timely fashion in accordance with Section 4(a) hereof; and, at or prior to the
Closing Date no stop order
15
<PAGE> 16
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.
(b) At the Closing Date you shall have received the opinion of Baker &
McKenzie, counsel for the Company, dated the Closing Date addressed to the
Underwriters and in form and substance satisfactory to Underwriters' Counsel, to
the effect that:
(i) The Company and each of its subsidiaries has been duly
organized and is validly existing as a corporation or limited liability company,
as the case may be, in good standing under the laws of the state of its
organization. The Company and each of its subsidiaries is duly qualified and in
good standing as a foreign corporation or limited liability company, as the case
may be, 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 for those failures to be so qualified
or in good standing which will not in the aggregate have a Material Adverse
Effect. The Company and each of its subsidiaries has all requisite corporate or
similar authority to own, lease and license its respective properties and
conduct its business as now being conducted and as described in the Registration
Statement and the Prospectus. Except as disclosed in the Prospectus, all of the
outstanding shares of capital stock or equity interests of the Company's
subsidiaries are owned beneficially and of record by the Company and have been
validly authorized and issued and are fully paid and nonassessable and, except
as described in the Prospectus, there are no other equity securities of any
subsidiary or any securities convertible into capital stock of any subsidiary,
or are there any options, warrants, or other rights to acquire capital stock or
other equity securities of any subsidiary of the Company.
(ii) The Company has an authorized capital stock as set forth
in the Registration Statement and the Prospectus. All of the outstanding shares
of Common Stock are duly and validly authorized and issued, are fully paid and
nonassessable and were not issued in violation of or subject to any preemptive
rights, and no preemptive rights of stockholders exist with respect to any of
the Company's Common Stock. The Shares to be delivered by the Company on the
Closing Date have been duly and validly authorized and, when delivered by the
Company against payment therefor in accordance with this Agreement, will be duly
and validly issued, fully paid and nonassessable and will not have been issued
in violation of or subject to any preemptive or similar rights. The certificates
for the Common Stock are in due and proper form. The Common Stock, the Primary
Shares and the Optional Shares conform to the descriptions thereof contained in
the Registration Statement and the Prospectus.
(iii) This Agreement has been duly and validly authorized,
executed and delivered by the Company.
(iv) There is no litigation or governmental or other action,
suit, proceeding or investigation before any court or before or by any public,
regulatory or governmental agency or body pending or to the best of such
counsel's knowledge, threatened against, or involving the properties
16
<PAGE> 17
or business of, the Company, which is of a character required to be disclosed in
the Registration Statement and the Prospectus which has not been properly
disclosed therein.
(v) The execution, delivery, and performance of this
Agreement, the issuance, offering and sale of the Shares and the consummation of
the transactions contemplated hereby by the Company do not and will not violate,
conflict with or constitute 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), or result in the creation or imposition of any
lien, charge or encumbrance upon any properties or assets of the Company or any
of its subsidiaries or result in any acceleration of any indebtedness of the
Company pursuant to (A) any bond, debenture, note, indenture, mortgage, deed of
trust, contract or other agreement known to such counsel to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective properties or assets are or may be bound (B)
any statute, rule or regulation applicable to the Company or any of its
subsidiaries or any of their respective properties or assets or (C) to the best
knowledge of such counsel, any judgment, order or decree of any court or
governmental agency or authority having jurisdiction over the Company or any of
its subsidiaries or any of their respective properties or assets. No consent,
approval, authorization, order, registration, filing, qualification, license or
permit of or with any court or any governmental agency or authority having
jurisdiction over the Company or any of its subsidiaries or any of their
respective properties or assets is required for the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby, except for (1) such as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Shares by the Underwriters (as to which such counsel need express no
opinion) and (2) such as have been made or obtained under the Securities Act.
(vi) The Registration Statement and the Prospectus and any
amendments thereof or supplements thereto (other than the financial statements
and other financial, reserve, production or other statistical data included
therein, as to which no opinion need be rendered) comply as to form in all
material respects with the requirements of the Securities Act and the Securities
Act Regulations.
(vii) The Registration Statement is effective under the
Securities Act, and, to the best knowledge of such counsel, 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 all filings required by Rule
424(b) of the Securities Act Regulations have been made.
(viii) There are no holders of securities of the Company who,
by reason of the execution by the Company of this Agreement or the consummation
by the Company of the transactions contemplated hereby, have the right to
request or demand that the Company register under the Securities Act or
analogous foreign laws and regulations securities held by them, other than those
such that have been duly exercised or waived.
17
<PAGE> 18
(ix) The statements in the Prospectus which purport to
summarize the provisions of statutes, regulations, contracts, and other
documents, insofar as such statements constitute a summary of documents referred
to therein or matters of law, are, in all material respects, accurate summaries
and fairly and correctly present the information required to be shown with
respect to such matters and documents.
(x) Such counsel does not know of any contracts or documents
required to be filed as exhibits to the Registration Statement or described in
the Registration Statement or Prospectus which are not so filed or described as
required.
(xi) To our knowledge, the Company has all approvals, licenses
and permits required to conduct its business lawfully, except where the failure
to so possess would not have a Material Adverse Effect.
(xii) The documents incorporated by reference in the
Prospectus (other than the financial statements and related schedules therein,
as to which such counsel need express no opinion), when they were filed with the
Commission complied as to form in all material respects with the requirements of
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such documents, when
such documents were so filed contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made when such
documents were so filed, not misleading.
In addition, such opinion shall also contain a statement that such
counsel has participated in conferences with officers and representatives of the
Company, representatives of the independent public accountants for the Company
and the Underwriters at which the contents of the Prospectus and related matters
were discussed and, no facts have come to the attention of such counsel which
would lead such counsel 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 an 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 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 other
financial, reserve, production or other statistical data included therein).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the federal laws of the United
States and jurisdictions in which they are admitted, to the extent such counsel
deems proper and to the extent specified in such opinion, if at all, upon
18
<PAGE> 19
an opinion or opinions (in form and substance reasonably satisfactory to
Underwriters' Counsel) of other counsel reasonably acceptable to Underwriters'
Counsel, familiar with the applicable laws; (B) as to federal regulatory issues,
on the opinion of special regulatory counsel; (C) as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the Company
and certificates or other written statements of officers of departments of
various jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company and its subsidiaries, provided that
copies of any such statements or certificates shall be delivered to
Underwriters' Counsel. The opinion of such counsel for the Company shall state
that the opinion of any such other counsel is being relied upon and for what
purpose.
(c) All proceedings taken in connection with the sale of the Primary
Shares and the Optional Shares as herein contemplated shall be satisfactory in
form and substance to you and to Underwriters' Counsel, and the Underwriters
shall have received from said Underwriters' Counsel a favorable opinion, dated
as of the Closing Date with respect to the issuance and sale of the Shares, the
Registration Statement and the Prospectus and such other related matters as you
may reasonably require, and the Company shall have furnished to Underwriters'
Counsel such documents as they request for the purpose of enabling them to pass
upon such matters.
(d) At the Closing Date you shall have received a certificate of the
President and Chief Financial Officer of the Company, dated 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 Closing Date the
representations and warranties of the Company set forth in Section 1 hereof are
accurate, (iii) as of the Closing Date the obligations of the Company to be
performed hereunder on or prior thereto have been duly performed and (iv)
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, the Company has not sustained any
material loss or interference with its business or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding, and there has
not been any material adverse change, or any development involving a material
adverse change, in the business, prospects, properties, operations, condition
(financial or otherwise), affairs or management of the Company, except in each
case as described in or contemplated by the Prospectus.
(e) At the time this Agreement is executed and at the Closing Date, you
shall have received a letter from Ernst & Young LLP, independent public
accountants for the Company, dated, respectively, as of the date of this
Agreement and as of the Closing Date addressed to the Underwriters and in form
and substance satisfactory to you, stating that, among other things: (i) they
are independent certified public accountants with respect to the Company within
the meaning of the Securities Act and the Securities Act Regulations and stating
that the information provided in response to Item 10 of Form S-2 is correct
insofar as it relates to them; (ii) in their opinion, the financial statements
and schedules of the Company included in the Registration Statement and the
Prospectus and covered by their opinion therein comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act and the applicable published rules and regulations of the Commission
thereunder; (iii) on the basis of procedures consisting of a reading
19
<PAGE> 20
of the latest available unaudited interim financial statements of the Company, a
reading of the minutes of meetings and consents of the stockholders and Board of
Directors of the Company and the committees of such Board of Directors
subsequent to December 31, 1999, inquiries of officers and other employees of
the Company who have responsibility for financial and accounting matters of the
Company with respect to transactions and events subsequent to December 31, 1999,
a review of interim financial information in accordance with the standards
established by the American Institute of Certified Public Accountants in
Statement of Auditing Standards No. 71, Interim Financial Information with
respect to the nine month period ended March 31, 2000 and other specified
procedures and inquiries to a date not more than five days prior to the date of
such letter, nothing has come to their attention that would cause them to
believe that: (A) the unaudited financial statements and schedules of the
Company presented in the Registration Statement and the Prospectus, including
the quarterly information set forth under the caption "Management's Discussion
and Analysis of Financial Condition and Results of Operations," do not comply as
to form in all material respects with the applicable accounting requirements of
the Securities Act and, if applicable, the Exchange Act and the applicable
published rules and regulations of the Commission thereunder or that such
unaudited consolidated financial statements are not fairly presented in
conformity with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements included
in the Registration Statement and the Prospectus; (B) with respect to the period
subsequent to March 31, 2000, there were, as of the date of the most recently
available monthly consolidated financial statements of the Company, if any, and
as of a specified date not more than five days prior to the date of such letter,
any changes in the capital stock or long-term indebtedness of the Company or any
decrease in the net current assets or shareholders' equity of the Company, in
each case as compared with the amounts shown in the most recent balance sheet
presented in the Registration Statement and the Prospectus, except for changes
or decreases which the Registration Statement and the Prospectus disclose have
occurred or may occur or which are set forth in such letter; (C) that during the
period from April 1, 2000 to the date of the most recent available monthly
financial statements of the Company, if any, and to a specified date not more
than five days prior to the date of such letter, there was any decrease, as
compared with the corresponding period in the prior fiscal year, in total
revenues, or total or per share net income, except for decreases which the
Registration Statement and the Prospectus disclose have occurred or may occur or
which are set forth in such letter; (D) the unaudited pro forma income
statements and balance sheets presented in the Registration Statement and the
Prospectus do not comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and, if applicable, the Exchange
Act and the applicable published rules and regulations of the Commission
thereunder, that such unaudited pro forma income statements and balance sheets
are not fairly presented in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the audited
financial statements included in the Registration Statement and the Prospectus
or that the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements; or (E) any other
unaudited pro forma income statement data or balance sheet items included in the
Registration Statement or Prospectus do not agree with the corresponding amounts
in the pro forma income statements or balance sheets included in the
Registration Statement and Prospectus; and (iv) they have compared specific
dollar amounts, numbers of shares, percentages
20
<PAGE> 21
of revenues and earnings, and other financial information pertaining to the
Company set forth in the Registration Statement and the Prospectus, which have
been specified by you prior to the date of this Agreement, to the extent that
such amounts, numbers, percentages, and information may be derived from the
general accounting and financial records of the Company or from schedules
furnished by the Company, and excluding any questions requiring an
interpretation by legal counsel, with the results obtained from the application
of specified readings, inquiries, and other appropriate procedures specified by
you set forth in such letter, and found them to be in agreement.
(f) Prior to the Closing Date the Company shall have furnished to you
such further information, certificates and documents as you may reasonably
request.
(g) You shall have received from each person who is a director or
officer and stockholder of the Company and from such other stockholders as have
been heretofore designated by you and listed on Schedule II hereto a 180 day
lock-up agreement, in form and substance satisfactory to the Underwriters and
Underwriters' Counsel.
(h) At the Closing Date, all of the Shares (including the Optional
Shares) shall have been approved for listing on the NASDAQ National Market,
subject only to notice of issuance.
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 you or to Underwriters'
Counsel pursuant to this Section 6 shall not be in all material respects
reasonably satisfactory in form and substance to you and to Underwriters'
Counsel, all obligations of the Underwriters hereunder may be canceled by you
at, or at any time prior to, the Closing Date and the obligations of the
Underwriters to purchase the Optional Shares may be canceled by you 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, telex or telegraph,
confirmed in writing.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act, against
any and all losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but not limited to attorneys' fees and any and all 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), jointly or severally, 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 for the registration of the Shares, as originally filed
or any amendment thereof, or any related 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
21
<PAGE> 22
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 written information furnished to the Company by or on behalf of any
Underwriter through you expressly for use therein. This indemnity agreement will
be in addition to any liability which the Company may otherwise have, including
under this Agreement.
(b) The Company also agrees to indemnify and hold harmless Morgan Keegan
& Company Inc. ("Morgan Keegan") and each person, if any, who controls Morgan
Keegan within the meaning of either Section 15 of the Act, or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, liabilities
and judgments incurred as a result of Morgan Keegan's participation as a
"qualified independent underwriter" within the meaning of Rule 2720 of the
National Association of Securities Dealers' Conduct Rules in connection with the
offering of the Company's common stock, except to the extent any such losses,
claims, damages, liabilities and judgments are found in a final judgment by a
court of competent jurisdiction (not subject to further appeal) to have resulted
primarily and directly from the gross negligence or willful misconduct of Morgan
Keegan.
(c) Each Underwriter severally, and not jointly, agrees to indemnify and
hold harmless the Company, each of the directors 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(a) of the Exchange Act, against
any and all losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but not limited to attorneys' fees and any and all 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), jointly or severally, 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 for the registration of the Shares, as originally filed
or any amendment thereof, or any related 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 written
information furnished to the Company by or on behalf of any Underwriter through
you expressly for use therein; 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 purchased by such Underwriter
hereunder. This indemnity will be in addition to any liability which any
Underwriter may otherwise have, including under this Agreement. The Company
acknowledges that the statements set forth under the caption "Underwriting" in
the Prospectus constitute the only
22
<PAGE> 23
information furnished in writing by or on behalf of any Underwriter expressly
for use in the Registration Statement relating to the Shares as originally filed
or in any amendment thereof, any related Preliminary Prospectus or the
Prospectus or in any amendment thereof or supplement thereto, as the case may
be.
(d) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of 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 commencement thereof (but the failure so to
notify an indemnifying party shall not relieve it from any liability which it
may have under this Section 7, except to the extent such failure prejudiced the
indemnifying party). In case any such 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 therein, and to the extent it
may elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by 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, or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties.
Notwithstanding anything contained herein to the contrary, if indemnity
may be sought pursuant to Section (a) or (b) hereof in respect of such action or
proceeding, then in addition to such separate firm for the indemnified parties,
the indemnifying party shall be liable for the reasonable fees and expenses of
not more than one separate firm (in addition to any local counsel) for Morgan
Keegan in its capacity as a "qualified independent underwriter" and all persons,
if any, who control Morgan Keegan within the meaning of either Section 15 of the
Act or Section 20 of the Exchange Act.
Anything in this subsection to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any claim or action
effected without its written consent; provided, however, that such consent was
not unreasonably withheld. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability or claims that are the subject matter
of such proceeding.
8. Contribution. In order to provide for contribution in circumstances
in which the
23
<PAGE> 24
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(a) 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 of the Shares or, if such
allocation is not permitted by applicable law, in such proportion as is
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 and (y) the underwriting discounts and commissions
received by the Underwriters, respectively, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault 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. Notwithstanding the
provisions of this Section 8, (i) in no case shall any Underwriter be liable or
responsible for any amount in excess of the underwriting discount applicable to
the Shares purchased by such Underwriter hereunder, 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. Notwithstanding the provisions of
this Section 8 and the preceding sentence, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. 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(a) 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(a)
of the Exchange Act, each officer of the Company who shall have
24
<PAGE> 25
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 this Section 8. 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, except to
the extent such failure prejudiced such party. No party shall be liable for
contribution with respect to any action or claim settled without its consent;
provided, however, that such consent was not unreasonably withheld.
9. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or their
obligation to purchase Primary Shares or Optional Shares hereunder, and if the
Primary Shares or Optional Shares with respect to which such default relates do
not (after giving effect to arrangements, if any, made by you pursuant to
subsection (b) below) exceed in the aggregate 10% of the number of Primary
Shares or Optional Shares, the Primary Shares or Optional Shares to which the
default relates shall be purchased by the non-defaulting Underwriters in
proportion to the respective proportions which the numbers of Primary Shares set
forth opposite their respective names in Schedule I hereto bear to the aggregate
number of Primary Shares set forth opposite the names of the non-defaulting
Underwriters.
(b) In the event that such default relates to more than 10% of the
Primary Shares or Optional Shares, as the case may be, you may in your
discretion arrange for yourself or for another party or parties (including any
non-defaulting Underwriter or Underwriters who so agree) to purchase such
Primary Shares or Optional Shares, as the case may be, to which such default
relates on the terms contained herein. In the event that within five calendar
days after such a default you do not arrange for the purchase of the Primary
Shares or Optional Shares, as the case may be, to which such default relates as
provided in this Section 9, this Agreement or, in the case of a default with
respect to the Optional Shares, the obligations of the Underwriters to purchase
and of the Company to sell the Optional 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 and 8 hereof) 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 the Primary Shares or Optional Shares to which the
default relates are to be purchased by the non-defaulting Underwriters, or are
to be purchased by another party or parties as aforesaid, you 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 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 opinion
25
<PAGE> 26
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 Primary Shares and Optional Shares.
10. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Underwriters and the Company
contained in this Agreement, including representations of the Company in Section
1, the agreements contained in Section 5, the indemnity agreements contained in
Section 7, the contribution agreements contained in Section 8 and the agreements
contained in Section 13, 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
representations contained in Section 1 and the agreements contained in Sections
5, 7, 8, 11(d) and 13 hereof shall survive the termination of this Agreement,
including termination pursuant to Sections 9 or 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective, upon the later of when (i)
you and the Company shall have received notification of the effectiveness of the
Registration Statement or (ii) the execution of this Agreement. If either the
initial public offering price or the purchase price per Share has not been
agreed upon prior to 5:00 P.M., New York time, on the fifth full business day
after the Registration Statement shall have become effective, this Agreement
shall thereupon terminate without liability to the Company or the Underwriters
except as herein expressly provided. Until this Agreement becomes effective as
aforesaid, it may be terminated by the Company by notifying you or by you by
notifying the Company. Notwithstanding the foregoing, the provisions of this
Section 11 and of Sections 1, 5, 7, 8 and 13 hereof shall at all times be in
full force and effect.
(b) You shall have the right to terminate this Agreement at any time
prior to the Closing Date, or the obligations of the Underwriters to purchase
the Optional Shares at any time prior to the Additional Closing Date, as the
case may be, if (A) any domestic or international event or act or occurrence has
materially disrupted, or in your opinion will in the immediate future materially
disrupt, the market for the Company's securities or securities in general; or
(B) if trading on the NASDAQ National Market shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, on the NASDAQ by the NASDAQ
or by order of the Commission or any other governmental authority having
jurisdiction; or (C) if a banking moratorium has been declared by a state or
federal authority or if any new restriction materially adversely affecting the
distribution of the Primary Shares or the Optional Shares, as the case may be,
shall have become effective; or (D) if the United States becomes engaged in
hostilities or there is an escalation of hostilities involving the United States
or there is a declaration of a national emergency or war by the United States or
(ii) if there shall have been such change in political, financial or economic
conditions if the effect of any such event in (i)
26
<PAGE> 27
or (ii) as in your judgment makes it impracticable or inadvisable to proceed
with the offering, sale and delivery of the Primary Shares or the Optional
Shares, as the case may be, on the terms contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 11 shall be by
telephone, telex, or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 11(a) hereof or (ii) Section 9(b) or 11(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 you, reimburse the Underwriters for all
reasonable out-of-pocket expenses (including the reasonable fees and expenses of
their counsel), incurred by the Underwriters in connection herewith.
12. Notices. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and, if sent to any
Underwriter, shall be mailed, delivered, or telexed or telegraphed and confirmed
in writing, to such Underwriter c/o Morgan Keegan & Company, Inc., 50 North
Front Street, Memphis, Tennessee 38103, Attention: Mike Herris, telecopier
number (901) 579 4355, with a copy to: Vinson & Elkins, L.L.P.., 1325 Avenue of
the Americas, 17th Floor, New York, New York 10019, Attention: Alan Baden,
telecopier number: (917) 206 8110; if sent to the Company, shall be mailed,
delivered, or telegraphed and confirmed in writing to the Company, 1 Industrial
Way West, Eatontown, New Jersey 07724 Attention: Steven Amendola, telecopier
number: (732) 542 4010 with a copy to Baker & McKenzie, 805 Third Avenue, New
York, New York 10022, Attention: Malcolm I. Ross, telecopier number (212) 759
9133.
13. Consent to Jurisdiction; Waiver of Immunities; Appointment of Agent
for Service.
(a) The Company:
(i) irrevocably submits to the nonexclusive jurisdiction of any
New York State or federal court sitting in the State of New York, County of New
York and any appellate court from any thereof in any action, suit or proceeding
arising out of or relating to this Agreement or any other document delivered in
connection herewith and irrevocably waives any immunity from such action or
proceeding it may otherwise enjoy in the aforementioned courts;
(ii) irrevocably agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State court or
in such federal court;
(iii) irrevocably waives, to the fullest extent permitted by law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding; and
27
<PAGE> 28
(iv) irrevocably designates, appoints and empowers CT Corporation
System, 1633 Broadway, New York, New York 10019 as its designee, appointee and
authorized agent to receive for and on its behalf service of any and all legal
process, summons, notices and documents that may be served in any action, suit
or proceeding brought against it, with respect to its obligations, liabilities
or any other matter arising out of or relating to this Agreement or any other
document delivered in connection herewith and that such service may be made on
such designee, appointee and authorized agent in accordance with legal
procedures prescribed for such courts, and it being understood that the
designation and appointment of CT Corporation System as such authorized agent
shall become effective immediately without any further action; and further
agrees that to the extent permitted by law, proper service of process upon CT
Corporation System (or its successors as agent for service of process), shall be
deemed in every respect effective service of process upon it in any such action,
suit or proceeding.
(b) Nothing in this Section 13 shall affect the right of any person to
serve legal process in any other manner permitted by law or affect the right of
any person to bring any action or proceeding against the Company or its
properties in the courts of other jurisdictions.
(c) The provisions of this Section 13 shall survive any termination of
this Agreement, in whole or in part.
14. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the Underwriters, the Company and the controlling
persons, directors, officers and others referred to in Sections 7 and 8, 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. The
term "successors and assigns" shall not include a purchaser, in its capacity as
such, of Shares from any of the Underwriters.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York for contracts made and to be
fully performed in such state without regard to principles of conflicts of law.
16. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
28
<PAGE> 29
If the foregoing correctly sets forth the understanding between you and
the Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement among us.
Very truly yours,
MILLENNIUM CELL, INC.
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Accepted as of the date first above written
MORGAN KEEGAN & COMPANY, INC.
30 North Front Street
Memphis, Tennessee 38103
By: Morgan Keegan & Company, Inc.
By:_________________________________
Name:_______________________________
Title:______________________________
29
<PAGE> 30
SCHEDULE I
<TABLE>
<CAPTION>
Total Number of Firm
Name of Underwriter Shares to be Purchased
------------------- ----------------------
<S> <C>
Morgan Keegan & Company, Inc............................................................ 3,700,000
Total........................................................................... 3,700,000
</TABLE>
30
<PAGE> 31
SCHEDULE II
31
