Exhibit 1.1
Optical Equipment NETS Trust
Optical Equipment NETS Depositary Receipts
PURCHASE AGREEMENT
November __, 2000
Epoch Securities, Inc.,
as Representative of the
Several Underwriters named
on Schedule I hereto
151 Union Street
IceHouse Two
San Francisco, California 94111
Ladies and Gentlemen:
Epoch Securities, Inc., as initial depositor ("Epoch Securities"),
proposes to form a trust, Optical Equipment NETS Trust (the "Trust"), pursuant
to a Depositary Trust Agreement, dated as of November [o], 2000, between Epoch
Securities and Investors Bank & Trust Company, as Trustee (the "Trust
Agreement"), which will issue on the Closing Date (as hereinafter defined)
$[o] aggregate amount of Optical Equipment NETS Depositary Receipts
("Receipts") representing undivided beneficial ownership of the Trust's
assets, which will initially include the U.S.-traded common stock
("Securities") of 21 companies conducting business in the optical equipment
industry, as described in the Prospectus (as defined below). Securities will
be transferred to the Trust by or on behalf of Epoch Securities on the Closing
Date in exchange for Receipts as described in the Prospectus. After the
Closing Date, additional Receipts may be issued by the Trust as described in
the Prospectus.
This is to confirm the agreement concerning the purchase of Receipts from
Epoch Securities by the several other Underwriters named in Schedule I hereto
(underwriters listed on Schedule I are referred to herein as the "other
Underwriters"). The other Underwriters together with Epoch Securities, Inc.,
in its capacity as underwriter, are referred to herein collectively as the
"Underwriters" and Epoch Securities, Inc., in its capacity as representative
of the Underwriters, is referred to herein as the "Representative."
A registration statement on Form S-1 (No. 333-45684) relating to the
Receipts has been filed by Epoch Securities, as registrant, with the
Securities and Exchange Commission (the "Commission") in accordance with the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations of the Commission thereunder (the "Rules and Regulations") and, as
amended by Amendment No. 1 and Amendment No. 2 thereto, has become effective
under the Securities Act. Epoch Securities proposes to file with the
Commission pursuant to Rule 424(b)(4) of the Rules and Regulations a
prospectus, dated November [o], 2000, relating to the Receipts and the method
of distribution thereof. Copies of such registration statement, and any
amendment or supplement thereto, and such prospectus have been delivered to
you. Such registration statement, including exhibits thereto, and such
Prospectus, both as amended to the date hereof, are hereinafter referred to as
the "Registration Statement" and the "Prospectus," respectively. The Receipts
will be listed on The American Stock Exchange (the "Exchange").
1. Purchase by the Other Underwriters and Dealers. On the basis of the
representations, warranties and agreements contained herein, and subject to
the terms and conditions set forth herein, Epoch Securities agrees to cause
the Receipts to be issued by the Trust and Epoch Securities agrees to sell to
each of the other Underwriters, severally and not jointly, and each of the
other Underwriters, severally and not jointly, agrees to purchase from Epoch
Securities, the respective number of Receipts set forth opposite the name of
such Underwriter in Schedule I hereto at a purchase price equal to the Initial
Public Offering Price, as defined in the Prospectus, per Receipt, less a
portion of the underwriting fee to be subsequently agreed to by the
underwriters.
The other Underwriters may sell to certain dealers all or a portion of
the Receipts acquired hereunder and in connection therewith any selling dealer
may receive a reallowance fee that is a portion of the underwriting fee to be
subsequently agreed to by the Underwriters.
Epoch Securities shall not be obligated to deliver any of the Receipts to
any Underwriter except upon payment in full for all the Receipts to be
purchased by such Underwriter as provided herein, it being acknowledged by the
parties hereto that Epoch Securities shall be entitled to retain the balance
of the underwriting fee for its own account.
2. Delivery of and Payment for the Receipts. Delivery of and payment for
the Receipts referred to in Section 1 shall be made at the offices of [o], or
at such other place as shall be agreed upon by the parties hereto, at [9:00
A.M., New York time], on _______________, 2000, or at such other date or time,
not later than five full business days thereafter (such date and time being
referred to herein as the "Closing Date"). On the Closing Date, Epoch
Securities shall deliver or cause to be delivered for the account of each
Underwriter the aggregate amount of Receipts set forth after their names on
Schedule I hereto against payment (pursuant to agreed upon procedures) to or
upon the order of Epoch Securities of the purchase price therefor in
immediately available funds. Upon delivery, the Receipts shall be represented
by one or more global certificates registered in the name of Cede & Co., as
nominee of The Depository Trust Company ("DTC"). The interests of the
beneficial owners of the Receipts will be represented by book-entries on the
records of DTC and participating members thereof. Definitive certificates
representing the Receipts will be available only under limited circumstances.
3. Representations, Warranties and Agreements of Epoch Securities. Epoch
Securities represents and warrants to and agrees with the other Underwriters
that:
(a) The Registration Statement, at the time it became effective, and
the Prospectus, as of the date of the Prospectus, complied in all
material respects with the applicable requirements of the Securities Act
and the Rules and Regulations and did not include any untrue statement of
a material fact and, in the case of the Registration Statement, did not
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and, in the case
of the Prospectus, did not omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; on the Closing Date, the
Registration Statement and the Prospectus, as amended as of the Closing
Date, will comply in all material respects with the applicable
requirements of the Securities Act and the Rules and Regulations and
neither the Prospectus nor any amendment thereto will include any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) Epoch Securities has the power and authority to execute and
deliver this Agreement and to carry out the terms of this Agreement and
the execution, delivery and performance by Epoch Securities of this
Agreement has been duly authorized by Epoch Securities.
(c) This Agreement has been duly executed and delivered by Epoch
Securities.
(d) When authenticated by the Trustee in accordance with the Trust
Agreement and delivered and paid for pursuant to this Agreement, the
Receipts will be duly and validly issued and entitled to the benefits of
the Trust Agreement.
(e) The execution, delivery and performance of this Agreement and
the consummation by Epoch Securities of the transactions contemplated
hereby shall not conflict with, result in any breach of any of the terms
and provisions of or constitute (with or without notice or lapse of time)
a default under, the charter or the by-laws of Epoch Securities, or any
indenture, agreement or other instrument to which Epoch Securities is a
party or by which Epoch Securities is bound, or violate any law or any
order, rule or regulation applicable to Epoch Securities of any court or
any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over Epoch Securities or
any of its properties; and, except for the registration of the Receipts
under the Securities Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), applicable state
securities laws in connection with the purchase and distribution of the
Receipts by the Underwriters, the National Association of Securities
Dealers, Inc. (the "NASD") in connection with its review of the
underwriting terms and arrangements, and the Exchange in connection with
the listing of the Receipts on the Exchange, no permit, consent, approval
of, or declaration to or filing with, any governmental authority is
required in connection with the execution, delivery and performance of
this Agreement or the consummation of the transactions contemplated
hereby.
(f) There are no proceedings or investigations pending or, to the
knowledge of Epoch Securities, threatened before any court, regulatory
body, administrative agency or other tribunal or governmental
instrumentality having jurisdiction over Epoch Securities or its
properties (i) asserting the invalidity of this Agreement or the
Receipts, (ii) seeking to prevent the issuance of any of the Receipts or
the consummation of any of the transactions contemplated by this
Agreement, (iii) seeking any determination or ruling that, if determined
adversely to Epoch Securities, is reasonably likely to materially and
adversely affect the performance by Epoch Securities of its obligations
under, or the validity or enforceability of, the Receipts or this
Agreement, or (iv) that may adversely affect the federal or state income,
excise, franchise or similar tax attributes of the Receipts.
(g) Epoch Securities (i) is not in violation of its charter or
by-laws, (ii) is not in default and no event has occurred which with
notice or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition
contained in any indenture, agreement, mortgage, deed of trust or other
instrument to which Epoch Securities is a party or by which Epoch
Securities is bound or to which any of Epoch Securities' property or
assets is subject and (iii) is not in violation in any respect of any
law, order, rule or regulation applicable to Epoch Securities or any of
Epoch Securities' property of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over it or any of its property,
except, in the case of clauses (ii) and (iii), for any defaults or
violations that would not, individually or in the aggregate, have a
material adverse effect on the performance by Epoch Securities of its
obligations under, or the validity or enforceability of, the Receipts or
this Agreement.
(h) Epoch Securities has complied with all applicable federal and
state securities laws, the rules and regulations of the NASD and the
listing requirements of the Exchange in connection with the transactions
contemplated by this Agreement.
4. Representations and Agreements of the Other Underwriters. Each other
Underwriter hereby represents and agrees with Epoch Securities, Inc., as
depositor and as Representative, on behalf of itself and each of its
affiliates that participates in the distribution of the Receipts, that it has
complied and will comply with all applicable federal and state securities
laws, and the rules and regulations of the NASD in connection with the
transactions contemplated by this Agreement.
5. Conditions of Underwriters' Obligations. The respective obligations of
the several Underwriters hereunder are subject to the accuracy, when made and
on the Closing Date, of the representations and warranties of Epoch Securities
contained herein, to the performance by Epoch Securities of its obligations
hereunder, and to each of the following additional terms and conditions:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with;
and Epoch Securities shall have filed the Prospectus or any amendment
thereto with the Commission pursuant to Rule 424(b) of the Rules and
Regulations within the time period provided by such rule.
(b) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Receipts, the
Registration Statement and the Prospectus, and all other legal matters
relating to such agreements and the transactions contemplated hereby and
thereby shall be satisfactory in all material respects to Brown & Wood
LLP.
(c) The Trust Agreement shall have been duly executed and delivered
by Epoch Securities and the Trustee and the Receipts shall have been duly
executed and delivered by the Trustee on behalf of the Trust and duly
authenticated by the Trustee.
(d) On the Closing Date, Epoch Securities, as Representative, shall
have received the favorable opinion, dated as of the Closing Date, of
counsel for the Trust in form and substance satisfactory to Brown & Wood
LLP.
(e) On the Closing Date, Epoch Securities, as Representative, shall
have received the favorable opinion, dated as of the Closing Date, of
Brown & Wood LLP as to such matters and in form and substance
satisfactory to Epoch Securities.
(f) On the Closing Date, Epoch Securities shall have received the
favorable opinion, dated as of the Closing Date, of Brown & Wood LLP
special tax counsel in form and substance satisfactory to Epoch
Securities.
(g) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market shall have been suspended or
limited, or minimum prices shall have been established on either of such
exchanges or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction, or
(ii) a general moratorium on commercial banking activities shall have
been declared by federal or New York State authorities, or (iii) an
outbreak or escalation of hostilities or a declaration by the United
States of a national emergency or war or any other substantial national
or international calamity or emergency as to make it, in the reasonable
judgment of the Representative, impracticable or inadvisable to proceed
with the public offering or the delivery of the Receipts on the terms and
in the manner contemplated in the Prospectus.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to Epoch Securities.
6. Termination. The obligations of the Underwriters hereunder may be
terminated by the Representative, in its absolute discretion, by notice given
to and received by the Trust and the other Underwriters prior to delivery of
and payment for the Receipts if, prior to that time, it reasonably determines
that it is in the best interests of the Underwriters for such termination to
be effected.
7. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the other Underwriters and Epoch
Securities and their respective successors. It being agreed and acknowledged
by the parties hereto that, in connection with the distribution of the
Receipts, and only with respect to such distribution, this Agreement shall
supercede any other agreement previously entered into by the parties hereto in
connection with the distribution of securities to the extent such provisions
conflict with the provisions herein, and it being further agreed and
acknowledged that this Agreement shall not otherwise affect any provision of
such other agreements.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
EPOCH SECURITIES, INC.
By:_______________________________
Name:
Title:
Accepted as of the date hereof
ADVANCED CLEARING, INC.
By: ___________________________
Name:
Title:
CHARLES SCHWAB & CO., INC.
By: ___________________________
Name:
Title:
SCHEDULE I
Number of
Receipts
Underwriter To Be Purchased
Advanced Clearing, Inc. [o]
Charles Schwab & Co., Inc. [o]
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